MAQBOOL HUSSAIN Vs. STATE OF BOMBAY

JUDGEMENT

(1.) This appeal by special leave from a judgment and order of the High Court of Judicature at Bombay raises an important question as to the construction of Art 20 (2) of the Constitution .

(2.) The appellant a citizen of Bharat arrived at the Santa Cruz airport from Jeddah on 6-11-l949. On landing he did not declare not that he had brought in gold with him but on search it was found that he had brought 107.2 tolas of gold in contravention of the notification of the Government of India dated 25-8-1948. The Customs authorities thereupon took action under S.167 CL (8). Sea Customs Act 8 of 1878 and confiscated the gold by an order dated 19-12-1949. The owner of the gold was, however, given the option to pay in lieu of such confiscation a fine of Rs. 12,000 which option was to be exercised within four months of the date of the order. A copy of the order was sent on 30-1-1950 to the appellant. Nobody came forward to redeem the gold. On 22-3-1950 a complaint was filed in the Court of the Chief Presidency Magistrate, Bombay against the appellant charging him with having committed an offence under S.8 Foreign Exchange Regulation Act 7 of 1947 read with the notification dated 25-8-1948. The appellant thereupon on 12-6-1950 filed a petition in the High Court of Bombay under Art. 228 of the Constitution contending that his prosecution in the Court of the Chief Presidency Magistrate was in violation the fundamental right guaranteed to him under Art 20 (2) of the Constitution and praying that as the case involved a substantial question of law as to the interpretation of the Constitution, the determination of which was necessary for the disposal of the case the case, may be withdrawn from the file of the Chief Presidency Magistrate to the High Court and the High Court may either dispose of the case themselves or determine the question of law and return to the Chief Presidency Magistrate's Court for disposal.

(3.) The question that arises for our determination in this appeal is whether by reason of his proceedings taken by the Sea Customs authorities the appellant could be said to have been prosecuted and punished for the same offence with which he was charged in the Court of the Chief Presidency Magistrate, Bombay. There is no doubt that the act which constitutes an offence under the Sea Customs Act as also an offence under the Foreign Exchange Regulation Act was one and the same viz. importing the gold in contravention of the notification of the Government of India dated 25-6-1948. The appellant could be proceeded against under S. 167 (8). Sea Customs Act as also under S. 23 Foreign Exchange Regulation Act in respect of the said act, proceeding were in fact there under S. 167(8), Sea Customs Act which resulted is the confiscation of the gold. Further proceedings were taken under S. 23, Foreign Exchange Regulation Act, by way of filing the complaint aforesaid in the Court of the Chief Presidency Magistrate, Bombay, and the plea. which was taken by the accused in bar of the prosecution in the Court of the Chief Presidency Magistrate, was that he had already been prosecuted and punished for the same offence and by virtue of the provision of Art. 20 (2) of the Constitution he could not be prosecuted and punished again.