# I 12 COLLECTOR OF CUSTOMS, NEW DELHI v. GHULAM SARWAR AND ORS

- **Citation:** [1971] 1 S.C.R. 112
- **Court:** Supreme Court of India
- **Decided:** 1970-03-24
- **Case number:** Criminal Appeal No. 207 of 1969
- **Bench:** V. Bhargava, C. A. Vaidial!Ngam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-12-collector-of-customs-new-delhi-v-ghulam-sarwar-and-ors-5014
- **Pages:** 7

## Headnote

Criminal trial-Delay in putting up conspiracy case-Accused praying
for separation of trial of his case and pleading guilty-Procedure to he
followed by Court.
The respondent was a Pakistani
national
and \Vas arrested on 8th
May 1964, and imme<liately after his arrest he made a confession before
a Magistrate.
The confession
disclosed that
he \Vas involved in
two
different and separate conspiracies with
various
co-accused.
But
the
customs authorities assun1ed that there was onlv one conspiracy and th:1t
the respondent had incorrectly shown two sep-arate conspiracies.
Three
cases \Vere filed against him charging him with offences under the Registration of ForeigneN Act, 1939, and Sea Customs Act, 1878, and
the
offence of conspiracy and other offences under various enactments.
He
\Vas convicted on his plea of guilty and sentenced
to various tcrm'l ol
imprisonment.
He was also detained under the Foreigners Act, 1946.
After fuller invc~tigation, the respondent was again put up for trial for
the second conspiracy and for offences under other Acts. The respondent
moved the High Court for quashing the proceedings on the ground that
he having hecn convicted for a conspiracy could not be retried for
the
5ame offence again.
He also pleaded various alternatives in the event o'f
the Court not quashing the proceedings, and one of the pleas was
that
proceedings against him should be separated from other co-accused and
his plea of guilty be accepted.
The High Court quashed the proceedings.
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Jn appeal to this Court, HELD : ( 1) Since the second trial \'<as for
a different and distinct conspiracy, the High Court's order was not justi·
fied. [117 DJ
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(2) Since the offences for •vhich the respondent was being tried "ere
likclv to have far-reaching implications, it ~'as not in the public interest
that the trial should be given up merely because, he had already ,erved
various terms of imprisonment, or there has been delay in putting him up
for trial for the second conspiracy, especially when there was no material
to suggest that the prosecution deliberately prolonged the investigation or
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delayed bringing up the case beifore Court.
Further,
the
trial for the
second conspiracy could not have been combined \Vith the earlier one. because. the two are separate and distinct. [117 D-EJ
( 3) In the circumstances ho\.V·ever, his alternative plea of separ.1tlng
his case from the other co-accused should be accepted and the prosecution
allowed a period of not more than two months for producing the evidence
so that the court could on a consideration of the evidence. either frame
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a charge or discharge the respondent.
The contention of the pro~~cution
that he should be tried along with the others to enable the court to take
his confession into consideration against the co~accused is not a ground
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COLLECTOR v. GHULAM SARWAR (Bhargava, J.)
11.J
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for joint trial especially when the respondent could be called as a witnes•
against the other co-accused. [118 Bl
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## Text

I 12
COLLECTOR OF CUSTOMS, NEW DELHI
v.
GHULAM SARWAR AND ORS.
March 24, 1970
(V. BHARGAVA AND C. A. VAIDIAL!NGAM, JJ.]
Criminal trial-Delay in putting up conspiracy case-Accused praying
for separation of trial of his case and pleading guilty-Procedure to he
followed by Court.
The respondent was a Pakistani
national
and \Vas arrested on 8th
May 1964, and imme<liately after his arrest he made a confession before
a Magistrate.
The confession
disclosed that
he \Vas involved in
two
different and separate conspiracies with
various
co-accused.
But
the
customs authorities assun1ed that there was onlv one conspiracy and th:1t
the respondent had incorrectly shown two sep-arate conspiracies.
Three
cases \Vere filed against him charging him with offences under the Registration of ForeigneN Act, 1939, and Sea Customs Act, 1878, and
the
offence of conspiracy and other offences under various enactments.
He
\Vas convicted on his plea of guilty and sentenced
to various tcrm'l ol
imprisonment.
He was also detained under the Foreigners Act, 1946.
After fuller invc~tigation, the respondent was again put up for trial for
the second conspiracy and for offences under other Acts. The respondent
moved the High Court for quashing the proceedings on the ground that
he having hecn convicted for a conspiracy could not be retried for
the
5ame offence again.
He also pleaded various alternatives in the event o'f
the Court not quashing the proceedings, and one of the pleas was
that
proceedings against him should be separated from other co-accused and
his plea of guilty be accepted.
The High Court quashed the proceedings.
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Jn appeal to this Court, HELD : ( 1) Since the second trial \'<as for
a different and distinct conspiracy, the High Court's order was not justi·
fied. [117 DJ
F
(2) Since the offences for •vhich the respondent was being tried "ere
likclv to have far-reaching implications, it ~'as not in the public interest
that the trial should be given up merely because, he had already ,erved
various terms of imprisonment, or there has been delay in putting him up
for trial for the second conspiracy, especially when there was no material
to suggest that the prosecution deliberately prolonged the investigation or
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delayed bringing up the case beifore Court.
Further,
the
trial for the
second conspiracy could not have been combined \Vith the earlier one. because. the two are separate and distinct. [117 D-EJ
( 3) In the circumstances ho\.V·ever, his alternative plea of separ.1tlng
his case from the other co-accused should be accepted and the prosecution
allowed a period of not more than two months for producing the evidence
so that the court could on a consideration of the evidence. either frame
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a charge or discharge the respondent.
The contention of the pro~~cution
that he should be tried along with the others to enable the court to take
his confession into consideration against the co~accused is not a ground
..
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COLLECTOR v. GHULAM SARWAR (Bhargava, J.)
11.J
A
for joint trial especially when the respondent could be called as a witnes•
against the other co-accused. [118 Bl
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
207 of 1969.
Appeal by special leave from the judgmen~ and. o~der dated
September 11, 1969 of the Delhi High Court m Cnmmal Misc.
(Main) No. 53 of 1969.
V. A. Seyid Muhammad and S. P. Nayar, for the appellant.
R. Jethamalani, Harjinder Singh, Kumar Mehta, H. K. Puri
and Rameshwar Nath, for respondent No. I.
The Judgment of the Court was delivered by
Bhargava, J.
Respondent No. 1, Ghulam Sarwar (hereinafter referred to as "the respondent"), who is a Pakistani national,
was arrested on 8th May, 1964 under section 104 of the Customs
Act, 1962.
Immediately after his arrest, he made a confession
before a Magistrate.
Since then, he has been in custody part of
the time under section 3(2) (g) of the Foreigners Act, 1946, part
of the time as a convict in various offences for which he was con,
victed, and part of the time as an under-trial prisoner.
Th~ first
regular case filed against him was under section 5 of the Registration of Foreigners Act, 1939 in which he was convicted on 29th
January, 1965 and sentenced to undergo six month's ngorous imprisonment after he had pleaded guilty. While he wa• undergoing that sentence, a second case was filed against him for an
offence under section 135 of the Customs Act in which he was
convicted and sentenced to nine months' rigorous imprisonment
arid a fine of Rs. 2,000 again after he had pleaded guilty.
This
conviction was recorded on 29th May,
1965.
After he had
undergone this sentence, he wa; again put in detention . under
s. 3(2) (g) of the Foreigners Act.
This detention was chall~ged
by him by filing two writ petitions in the High Court of Punjab;
and in this Court, but both the writ petitions were dismissed.
Then, on 17th January, 1967, a case was filed in the Court o'
Miss K. Sen Gupta, S.D.M., New Delhi, for a substantive offenct
under s. 135 of the Customs Act, for an offence under section
120-B of the Indian Penal Code read withs. 135 of the Customs
Act and s. 23 (I )(a) of the Foreign Exchange Regulations Act,
and an offence under section 23 (!)(a) of the Foreign Exct.ange
Regulations Act read with sections 109 "Ild 114 of the Indian
Penal Code.
The respondent again pleaded guilty, was convicted
on 31st January, 1969, an'i was sentenced to undergo rigorous
imprisonment for six months and to pay a fin~ of Rs. 2,000. In
this case, 17 other persons were prosecuted as his co-accused .
114
SUPREME COURT REPORTS
(1971] l S.C.R.
During the pendency of this case, another case was filed
i.11 the
Court of Shri N. C. Jain, S.D.M., New Delhi, on 18th March, 1968
against the respondent and 45 other persons charging them with
offences under s. 120B, l.P.C., read with s. 135 of !he Customs
Act, section 167 ( 81) of the Sea Customs Act and section 23
( 1-A) of the Foreign Exchange Regulations Act, as well as substantive offe,nces under section 135 of the Cusioms Act, section
167(81) of the Sea Ci1stoms Act, and section 23(1-A) of the
Foreign EA~hange Regulations Act.
Having already been convicted for some of the offences, particularly -the offence of consμiracy in the earlier case, on the 31st January, 1969, the respomlent moved a w:it petition in the High Court on 4th April, 1969,
for quashing these last proceeedings on the ground that, having
been convicted for a conspiracy earlier, he could not be retried
for the same conspiracy, so that <his trial was invalid.
In the
alternative, the respondent prayed that, in case the proceedings
are not quashed, the proceedings against him be separated from
other co-accused, his plea of guilty be recorded, and he be convicted
io accordance with law. Two other alternative prayers were that,
in case the first two prayers were not accepted, the trial Court
may be directed to record the plea of guilty of the respondent and
convict him in accordance with law even in the joint trial, and,
in the alternative, the trial Court be ordered to take up the proceedings day to day and a time-limit may be fixed by which the
complainant should furnish the evidence against the respondent
before the Court.
The High· Court, by its order dated
11th
September, 1969, accepted the plea of the respondent, held that
this second trial for the off.~nce of conspiracy was barred as a
result of the earlier trial in which the respondent had been convicted on 31st January, 1969, and, consequently, quashed the
proceedings in respect of this offence.
The Court also quas\}ed
the proceedings in respect of specific offences under s. 13 5 of the
Customs Act al)d section 23(1-A) of the Foreign Exchange
Regulations Act insofar as they related to smuggling of 52 kilograms of gold into lndia on or about 8th May, 1964 on the ground
~hat the respondent had already been convicted and sentenced
in respect of these offences. The High Court, however, added a
sentence that, if the respondent is accused of any other specific
acts of smuggling, there will be no bar against the continuation
of prosecution proceedings in respect of them.
It is this order
which has been challenged before us in this appeal by special leave.
In rhis case, it was very unfortunate that, when the writ petition was heard by the High Court, the very first confession made
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by the respondent, which was to a great extent the basis of the
various prosecutions, was not placed before the High Court and
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was not brought to its notice. Obviously, there was carelessness
on the part of the prosecution in not bringing it to the notice of
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COLLECTOR V, GHULAM SARWAR (Bhargava, J.)
115
the High Court.
At the same time, the respondent, who had
challenged the prosecution, also owed a duty to bring that confession to the notice of the High Court as the burden Jay on him
to show that the prosecution going on against him was illegal
and liable to be quashed; and he had moved the High Court. to
exercise its eli.tra-ordinary writ jurisdiction to obtain this relief.
Jn his writ petition, the respondent had offered to produce the
copy of the confession for perusal of the Court, but foe Court
Jest sight of this offer and proceeded to pass the order without
examining the confession. The importance of this omission
lies in the fact that a reading of the confession itself makes
it
manifest that there were two different and separate conspiracies,
one which was headed by a person known as Abid Hussain, and
the other by another person known as Allau-din. The respondent,
in the confession, made statements which indicated that thes~
two conspiracies were distinct and separate ones, though a few
cf the persons involved in the two conspiracies were common. In
fact, the confession showed that, at one stage, he was given instructions by the head of qne of the conspiracies to see that his
part in that conspiracy did not come to the knowledge of the head
of the other conspiracy. It is true that, at the initial stage, the
customs authorities, even after the confession, proceeded on the
view that, very likely, there was one single conspiracy and that
the respondent had incorrectly tried to show that there were two
separate conspiracies in which he was involved. That appears to
be the reason why, at the early stages, in the various documents
put forward before the courts, the authorities used language indicating that there was one single conspiracy in respect of which
the respondent was being held in custody and was going to be
prosecuted.
It appears that it was much later,
after detailed
investigation, that the authorities became satisfied that there were
two
separate
conspiracies and,
consequently,. came forward
with a second prosecution of the respondent in respect of the conspiracy which was not the subject-matter of the first complaint on
the basis of which the respondent was convicted on 31st January,
1969. That the authorities were under the impression that there
was only one single conspiracy at the earlier stages is apparent
from the facts stated in the complaint dated 5th April, 1965 in
respect of the substantive offence under section 135 ol' the Customs
Act, and even later, in an affidavit filed on 5th January, 1966 by
the Under Secretary to Govennment in reply to the habeas corpus
petition filed by the respondent in the High Court, the allegations made out as if there was one single conspiracy which was
engineered by a syndicate headed by Abid Hussain. Even at the
time of the prosecution for the first conspiracy on 17th January,
1967, the facts given in the complaint created the impression that
there was one single conspi:acy and that Allau-din was one of
the conspirators in that conspiracy and was no~ the head of that
lJ6
SUPREME COURT REPORTS
(1971] 1 S.C.R.
separate conspiracy for which the respondent and 17 others were
prosecuted.
These circumstances were partly explained in
a
later affidavit of H. K. Kochhar, Assistant Collector of Customs,
sworn on 12th May, 1969, and filed in the High Court in reply
to the petition under Art. 226 of the Constitution on which the
High Court passed the present impugned order. The High Court
prefrrred to attach greater weight to the affidavit of the Under
Secretary to Government and did not choose to act at all on the
affidavit of H. K. Kochhar, considering that the former affidavit
was by a senior officer on behalf of the Government, while the
latter affidavit had been sworn by an Assistant Collector of Customs only.
In adopting this course, (he High Court lost sight
of the .:ircumstance that the affidavit of the Under Secretary was
filed in January, 1966 when the ;nvestigation of the various facts
was at a fairly early stage, while Kochhar's affidavit was filed in
May, 1969, by which time fuller investigation had been made by
the authorities and they had discovered that their first impression
that there was 11ne single conspiracy was incorrect. The position
has been further clarified before us in the affidavit of the Collector
of Customs, R. Prasad, filed in reply to the petition for revocation
of special leave to appeal on the basis of which this appeal has
been heard by us.
These facts made it clear that the High Court
misdirected itself in accepting the plea of the respondent and in
quashin~ the proceedings.
In fact, Mr. J ethmalani, counsel for
the respondent, did not make any serious effort to justify the order
of the High Court after we had gone through the confession of
the respondent, so that it is obvious that the order of the High
Court quashing the proceedings was not justified.
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Mr. Jethmalani, however, urged that, even though the order
of the High Court may not be justified, the circumstances of this
case do not require that this Court should exercise its special
powers under Art. 136 of the Constitution ·to order a trial of the
respondent and reopen the proceedings.
He drew our attention
to two decisions of this Court in K. V. Krishnamurthy Iyer and
others v.
The State of Madras( 1 ), and The State of Bihar v.
Hirala/ Kejriwal and another(') in. which this Court declined to
order a re-trial in exercise of its powers und;;r Art. 136 of the
Constitution even though the orders in which the trials had terminated were held to be incorrect and set aside.
In both the
cases, the principle laid down was that public interest or
the
interest of justice did not require that there should be a fresh
trial.
Reliance was also placed 6n the views expressed by the
Bombay High Court in Chudaman Narayan Patil v. State of
Maharashtra(').
On the basis al the views expressed
in those
(I) A.1.R. 1954 S.C. 406.
(2) [1960] I S.C.R. 7~6.
(3) A.J,R. 1969 Born. 1.
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COLLECTOR v. GHULAM SARWAR (Bhargava, I.)
117
cases, he urged that, in this case, the respondent had been in
custody for a period of about six years since his arrest and w.as
being harassed by prosecutions launched one after the other, whI!e
being kept in custody under s. 3(2)(g) of the Foreigners Act
'during the period when he could not be detained either as
a
convict or as an under-trial prisoner.
He also emphasised the
frank confessio.n of his part in the conspiracies and that, every time
frank confession of his part in the conspiracies and that, everytime
a case was brought up against him, he stuck to that confession
and pleaded guilty in court.
He was also given the impression,
when the earlier case of conspiracy was started on 17th January,
1967, that after the trial of that case, his woes will be over and
he will not have to face any further trials.
We have considered these aspects, but we do not think that
this is a fit case where we should uphold the order of the High
Court quashing the proceedings which were validly started and
which related to an entirely distinct and separate offence of conspiracy apart from the one for which the respondent has already
been convicted.
The offences for which he is now being tried
are of such a nature that they may have far-reaching implications,
and we do not think that it will be in the public interest that the
trial should be given up merely because there has been delay in
sending up the case. The case related to a conspiracy and we
can very well appreciate that investigation of an offence of conspin:.:y is necessarily prolonged and requires considerable work
by the investigating authorities, so that certain amount of. delay
is bound to take place in putting the case before the court. In
the present case, the matters appear to have been complicated by
the fact that, at the earlier stages, the authorities were under the
impression that there was one single conspiracy. We are unable
to find any material to suggest that the prosecution have deliberately prolonged the investigation or delayed bringing the case
before the court. We may also add that we are not impressed by
the argument advanced by Mr. J ethmalani that the respondent
could have been charged for this conspiracy even in the earlier
case in which he was convicted on 31st January, 1969 under the
provisions of section 236 of the Code of Criminal Procedure, because the two conspiracies, according to the prosei:ution, are two
entirely separate and distinct ones and are not based on allegations of identical acts having been committed by the offenders. In
this case, therefore, it appears to be appropriate that the respondent should be tried for the conspiracy on the basis of which proceedings are being taken. which have been quashed by the High
Court.
We, however, consider that, in view of the Jong delay and in
view of the circumstance that the respondent has been pleading ·
. I IS
SUPREME COURT REPORTS
[1971] l S.C.R.
guilty, his second alternative request in the writ petition is justified.
Merely because he is a co-accused with 45 others there 1s
no justification that h.e should be subjected to a prolonged trial,
specially because we have been assured by the counsel for the
respondent that the respor.dent is still sticking to his
confession
and will, very likely, plead guilty as soon as a charge is framed
. against him. In the circumstances, while allowing the appeal and
setting aside the order of the High Court, we direct that the trial
of the respondent shall be separated_ from all other 45 co-accused
and will be proceeded with separately. Dr. Seyid Muhammad.
counsel for the appellant, opposed this separation of the trial of
the respondent on the ground that, if there is a joint trial, the confession of the respondent can b_e taken into account by the court
trying the case against his co-accused which will not be
p~r
missible if the respondent is separately tried.
That is no ground
for unnecessarily delaying the trial of the
respondent specially
when, if the prosecution desire, they can either
apply
to
the
Court to make the respondent an approver or can even produce
the respondent as a witness in the case against others after his
ronviction. In fact. if any of these two alternative
courses i;
adopted. it will be fairer to the oth~r co-accused who will then
have an opportunity of cross-examining the
respondent before
his statement is taken in evidence against them.
On our enquiry, Dr. Seyid Muhammad stated that it will be
po•si!Jle for the prosecution to produce sufficient evidence to
. make out a prima facie case on the basis of which a charge can
be framed by the court, if a period of two months is allowed to
the prosecution to produce evidence in the trial.
On behalf of
·the respondent, a request was made that we should fix a timelimit for completipn of the whole trial in view of the long delay.
We, however, consider that it is sufficient to make a direction that
the Magistrate will allow a period of not more than two months
to the prosecution to produce evidence to make out a prima facie
case against the respondent, calculated from the date on
which
the copy 0f our order is received by the trial Court. On the
expiry of the period of. two months, the Court will proceed either
to frame a charge or to discharge the respondent in accordanc.~
with his judgment whether the evidence produced does or does
not make out a prima facie case to justify framing of a charge.
It is to this extent only that we are laying down a ·time-schedule
for the trial Court which we consider necessary to avoid possible
harassment of the respondent.
·v.P.S.
.Appeal allowed directions for retrial given
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