PER M. P. THAKKAR, J. : - - (1.) DOES the acquittal of an accused charged with having committed an offence punishable under Section 111 read with Section 135 of the Customs Act, 1969 (1962) create a legal bar to the said accused subsequently being prosecuted under Section 85 of the Gold (Control) Act, 1968. The High Court having answered this question (in the affirmative) against the prosecution and having directed the dropping of the subsequent proceedings on the premise that the acquittal in the former proceedings operated as a legal bar to the prosecution of the accused in the latter proceedings, the State has approached this Court by way of present appeal.
(2.) RESPONDENT Nos. 1 to 3 came to be prosecuted as a result of a raid at their house in which primary gold valued at Rs. 84,770/at the material time was found along with some other articles. They were prosecuted for an offence punishable under Section 111 read with Section 135 of the Customs Act, (1962). In that case present respondent No. 3 was convicted whereas present respondents Nos. 1 and 2 were acquitted. The same alleged offenders were later on sought to be prosecuted under Section 85 of the Gold (Control) Act, 1968 relying on the find of primary gold from the very same premises at the time and on the occasion of the very same raid which gave rise to his prosecution under the Customs Act which had culminated in the conviction of respondent No. 3 and the acquittal of respondents Nos. 1 and 2. A contention was thereupon raised on behalf of respondents Nos. 1 to 3 that the new trial was barred. The Chief Judicial Magistrate accepted this plea and ordered that the prosecution be dropped. The learned Sessions Judge confirmed the same order. The appellant challenged the order passed by the learned trial Magistrate as confirmed by the learned Sessions Judge by way of a revision application Criminal Revn. Application No. 273 of 1975 to the High Court. The High Court affirmed the decision of the Courts below holding that the present trial was barred by virtue of Section 403(1) of the Code of Criminal Procedure, 1898 (Cr. P. C.). Hence this appeal. In order to determine this question it is necessary to identify the ingredients which, will have to be established by the prosecution in order to bring home the guilt under the different provisions. These ingredients may be catalogued as under : Ingredients of charge for the offence under Section 111 read with Section 135 of the Customs Act, 1962 in respect of which the respondents were acquitted. Ingredients of the charge for the offence under Section 85 of the Gold (Control) Act, 1968 for which the respondents are sought to be prosecuted. (i) Inter alia being in possession of or being concerned in keeping or con The offender owns or has in his possession, custody, or control any pricealing of goods which the offender knows or has reason to believe are liable to confiscation under 111. (ii) The goods in question, gold, was imported within the Indian customs waters contrary to a prohibition contained under the Customs Act. (iii) There was a prohibition in respect of the import of gold at the material time as contemplated by Section HID of the Customs Act. mary gold of not less than 9 carats in purity in unfinished or semi -finished form or in blocks, bars etc.
(3.) IT is, therefore, evident that the ingredients required to be established in respect of the offence under the Customs Act are altogether different from the ones required to be established for an offence under the Gold (Control) Act. In respect of the former, the prosecution has to establish that there was a prohibition against the import into Indian sea waters of goods which were found to be in the possession of the offender. On the other hand in respect of the offence under the Gold (Control) Act, it is required to be established that the offender was in possession of primary gold -meaning thereby gold of a purity of not less than 9 carats in any unfinished or semi -finished form. In regard to the latter offence it is not necessary to establish that there is any prohibition against the import of gold into Indian sea waters. Mere possession of gold of purity not less than 9 carats in any unfinished or semi -finished form would be an offence under the Gold Control Act. It is therefore stating the obvious to say that the ingredients of the two offences are altogether different. Such being the case the question arises whether the acquittal for the offences under the Customs Act which requires the prosecution to establish altogether different ingredients operates as a bar to the prosecution of the same persons in connection with the charge of having committed the offence under the Gold (Control) Act. Reliance has been placed on Section 403(1) of the Code of Criminal Procedure, 1898 (Cr. P. C.) in support of the plea that the prosecution under the Gold (Control) Act would be barred on the basis of the under -mentioned facts : (i) that the respondents had been tried by a competent Court: for the offence of being in possession of gold under the Customs Act and had been acquitted; (ii) they are sought to be prosecuted on the same facts for an offence under the Gold (Control) Act. It is not in dispute that the respondents were tried and acquitted for the offence under the Customs Act in connection with the possession of a quantity of gold. Their trial would be barred by Section 403(1) provided they are sought to be prosecuted on 'same facts' for any offence for which a different charge from the one made against them might have been made under Section 236 and for which they might have been convicted under Section 237. ;