B.P.SINHA J.: - (1.) THE following Judgment of S. R. Das C. J., N. H. bhagwati, B.P.SINHA and K. N. Wanchoo JJ. was delivered by:
(2.) PETITION Nos. 65 of 1958, under Art. 32 of the Constitution, on behalf of one Thomas Dana, and Criminal Appeal No. 112 of 1958, by special leave to appeal granted to one Leo Roy Frey (appellant), raise substantially the same question of some constitutional importance, and have, therefore, been heard together, and will be covered by this judgment. The main question for determination in these two cases, is whether there has been an infringement of the constitutional protection granted under Art. 20(2) of the Constitution. For the sake of brevity and convenience, we shall refer to Thomas Dana as the first petitioner, and Leo Roy Frey, as the second petitioner, in the course of this Judgment. The relevant facts are these : The first petitioner is a Cuban national. He came to India on a special Cuban passport No. 11822, dated 16/11/1954, issued by the government of the Republic of Cuba. The second petitioner is a citizen of the United States of America, and holds a U.S.A. passport No. 45252, dated 1/07/1955. In May, 1957, both the petitioners were in Paris. There, the second petitioner purchased a motor car from an officer of the American Embassy. He is said to have sold that car to the first petitioner on 14/05/1957, and the same month, it was registered in the first petitioner's name. The two petitioners sailed by the same steamer at the end of May. The car was also shipped by the same steamer. They reached Karachi on 11/06/1957, and from there, flew to Bombay. From June 11 to 19, 1957, they stayed together in Hotel Ambassador in Bombay. The car was delivered to the first petitioner in Bombay on June 13, and on June 19, both of thf them flew from Bombay to Delhi. In Delhi also, they stayed together at Hotel Janpath. The first petitioner received the car at Delhi by rail on June 22, and the same night, the two petitioners left by the said car for Amritsar, where they reached after mid-night, and stayed in Mrs. Bhandari's Lodge. On the morning of June 23, they reached Attari Road Land Customs Station by the same car (No. CD 75 TT 6587). On arrival atAttari, the petitioners presented themselves for completing customs formalities for crossing over to Pakistan. The Customs officers at Attari Road Land Customs Station, handed over to them the Baggage Declaration forms, to declare the articles that they had in their possession, including any goods which were subject to the Export Trade Control and/or Foreign Exchange Restrictions, and/or were dutiable. Both the petitioners completed the forms aforesaid, and handed those completed statements over to the Customs officers. The first petitioner declared the under-noted articles: JUDGEMENT_375_AIR(SC)_1959Html1.htm On suspicion, the Customs officers searched his baggage which was being carried in the car aforesaid. His person was also searched, and as a result of the search, the under noted articles which had not been declared by him, were recovered : JUDGEMENT_375_AIR(SC)_1959Html2.htm The second petitioner, in his statement, had declared the following articles: JUDGEMENT_375_AIR(SC)_1959Html3.htm On suspicion, the Customs staff searched the person of the second petitioner also. They recovered from him one pistol of 22 bore with 48 live cartridges of the same bore. As he could not produce a valid licence under the Indian law, the pistol and the cartridges were handed over to the police, for taking appropriate action under the Indian Arms Act. The car was thoroughly searched, and as a result of the intensive search and minute examination on 30/06/1957, a secret chamber above the petrol tank, behind the hind seat of the car, was discovered. The chamber was opened, and the following things which had not been declared by the petitioners, were recovered from inside the secret chamber: JUDGEMENT_375_AIR(SC)_1959Html4.htm besides other insignificant things. Under the Indian law, Indian currency over Rs. 50.00, Pakistan currency over Rs. 100.00 and any foreign currency, could not be exported out of India, without the permission of the Reserve Bank of India. The export of a pocket radio also required a valid licence under the Imports and Exports (Control) Act, 1947. The petitioners could not produce, on demand the requisite permission from the Reserve Bank of India..' or the licence for the export of the pocket radio, or a permit for exporting a time-piece, as required by the Land Customs Act, 1924. The car also was handed over to the police for necessary action. The offending articles, namely JUDGEMENT_375_AIR(SC)_1959Html5.htm pocket radio, and the time-piece, etc., were seized under s. 178 of the Sea Customs Act, 1878. Both the petitioners were taken into custody for infringement of the law. On July 7, both the petitioners were called upon to show cause before the Collector of central Excise and Land Customs, New Delhi, why a penalty should not be imposed upon them under s. 167(8) of the Sea Customs Act, 1878, and why the seized articles aforesaid, should not be confiscated under s. 167(8) and s. 168 of the Act. Both the petitioners objected to making any statements in answer to the show-cause notice, on the ground that the matter was. subjudice and any statement made by them, might prejudice them in their defence. But at the same time, the second petitioner disclaimed any connection with the car in which the two petitioners were travelling, and which had been seized. After some adjournments granted to the petitioners to avail themselves of the opportunity of showing cause, the Collector of central Excise and Land Customs, New Delhi, passed orders on 24/07/1957. He came to the conclusion that the petitioners had planned to smuggle Indian and foreign currency out of India, in contravention of the law. They had been acting in concert with each other, and had, throughout the different stages of their journey from France to India, been acting together, and while leaving India for Pakistan, were travelling together by the same car, until they reached the Attari Road Land Customs Station, on their way to Pakistan. He directed that the different kinds of currency which had been seized, as aforesaid, from the possession of the petitioners, be ` absolutely confiscated ` for contravention of s. 8(2) of the Foreign Exchange Regulation Act, 1947, read with ss. 23-A and 23-B of the Act. He also directed the confiscation of the car aforesaid, which could be redeemed on payment of a ` redemption fine ` of Rs. 50,000.00. He also ordered the confiscation of the pocket radio and the time-piece and other articles seized, as aforesaid, under s. 167(8) of the Sea Customs Act, read with s. 5 of the Imports and Exports (Control) Act, 1947, and s. 7 of the Land Customs Act, 1924. He further imposed a personal penalty of Rs. 25,00,000.00 on each of the petitioners, under s. 167(8) of the Sea Customs Act. After making further inquiry, on 12/08/1957, the Assistant Collector of Customs and central Excise, Amritsar, under authority from the Chief Customs Officer, Delhi, filed a complaint against the petitioners and a third person, named Moshe Baruk of Bombay, (since acquitted), under s. 23, read with s. 8, of the Foreign Exchange Regulation Act, 1947, and s. 167 (81) of the Sea Customs Act, 1878. The petition of complaint, after stating the facts stated above, charged the accused persons with offences of attempting to take out of India Indian and foreign currency, in contravention of the provisions of the Acts referred to above. After recording considerable oral and documentary evidence, the learned Additional District Magistrate, Amritsar, by his judgment dated 13/11/1957, convicted the petitioners, and sentenced them each to two years' rigorous imprisonment under s. 23, read with s. 23-B, of the Foreign Exchange Regulation Act, six month's rigorous imprisonment under s. 120-B(2) of the Indian Penal Code, the sentences to run concurrently. It is not necessary to set out the convictions and sentences in respect of the third accused Moshe, who was subsequently acquitted by the High court of Punjab, in exercise of its revisional jurisdiction. The learned Magistrate also, perhaps, out of abundant caution, directed that ` The entire amount of currency and foreign exchange and the car in which the currency had been smuggled as well as the sleeveless shirt Ex. P. 39 and belt Ex. P. 40 shall be confiscated to government `. This order of confiscation was passed by the criminal court, notwithstanding the fact, as already stated, that the Collector of central Excise and Land Customs, New Delhi, had ordered the confiscation of the-offending articles under s. 167(8) of the Sea Customs Act and the other related Acts referred to above. On appeal by the convicted persons, the learned Additional Sessions Judge, Amritsar, by his judgment and order dated. 13/12/1957, dismissed the appeal after a very elaborate examination of the facts and circumstances brought out in the large volume of evidence adduced on behalf of the prosecution. It is riot necessary, for the purposes of these cases, to set out in detail the findings arrived at by the appellate court, or the evidence on which those conclusions were based. It is enough to state that both the courts of fact agreed in coming to the conclusion that the accused persons had entered into a conspiracy to smuggle contraband property out of this country.
(3.) THE petitioners moved the High court of Judicature for the State of Punjab, separately, against their convictions and sentences passed by the courts below, as aforesaid. Both the revisional applications were dismissed summarily by the learned chief justice. By his order dated 28/02/1958, the learned chief justice refused to certify that the case was a fit one for appeal to this court. The petitioners then moved this court for, and obtained, special leave to appeal from the judgment and orders of the courts below, convicting and sentencing them, as stated above. They also moved this court for writs of habeas corpus. The petition of the first petitioner for a writ of habeas carp= was admitted, and was numbered as petition No. 65 of 1958, and a rule issued. The writ petition on behalf of the second petitioner was dismissed in limited. All these orders were passed on 28/04/1958. Subsequently, the first petitioner moved this court for revocation of the special leave granted to him, and for an early hearing of his writ petition No. 65 of 1958, as the points for consideration were common to both the cases. This court granted the prayers by its order dated 13/05/1958. Before dealing with the arguments advanced on behalf of the petitioners, in order to complete the narrative of events leading up to the filing of the cases in this court, it is necessary to state that the petitioners had moved this court separately under Art. 32 of the Constitution, against their prosecution in the Magistrate's court, after the aforesaid orders of confiscation and penalty, passed by the Collector of Customs. They prayed for a writ of certiorari and/or prohibition, and for quashing the proceedings. There was also a prayer for a writ in the nature of habeas corpus. On that occasion also, the protection afforded by Art. 20(2) of the Constitution, was pressed in aid of the petitioners' writ applications. This court, after hearing the parties, dismissed those writ petitions, holding that the charge against the petitioners included an offence under s.120B of the Indian Penal Code, which certainly was not one of the heads of charge against them before the Collector of Customs. This court, therefore, without deciding the applicability of the provisions of Art. 20(2) of the Constitution, to the facts and circumstances of the present case, refused to quash the prosecution. The question whether Art. 20(2) of the Constitution, barred the prosecution of the petitioners under the provisions of the Sea Customs Act and the Foreign Exchange Regulation Act, was apparently left open for future determination, if and when the occasion arose. In view of the events that have happened since after the passing of the order of this court, dated 31/10/1957, (reported in [1958] S. C. R. 822), it has now become necessary to determine that controversy. ;