# MAQBOOL HUSSAIN v. THE STA'l'E OF BOMBAY. JAGJIT SINGH

- **Citation:** [1953] 1 S.C.R. 730
- **Court:** Supreme Court of India
- **Decided:** 1951-02-12
- **Bench:** Patanjali Sastri C.J, MuKHERJEA, S.R. DAs, Ghulam Hasan, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maqbool-hussain-v-the-sta-l-e-of-bombay-jagjit-singh-192
- **Pages:** 22

## Headnote

· Constitution of India, 1B50, Art. 20(2)-Fundamental rights-
".htre fois acquit"-When subsequent prosecution barred-Confiscation of goods by Sea Customs Authorities·-Whether bars prosecution
u11de1· Foreign Exchange Regulation Act-Punishment by Jail
Superintendent under Jail Rules - Whether bars prosecntion under
Penal Gode-Sea Customs Act (VIII of 1878), s.167-Foreign Excha1'ge Regulation Act (VII of 1947), s. 23-Punjab Communist
Detenus Rules, Rule 41.
The wording of Art. 20 of the Constitution and the words
used therein show that the proceedings therein contemplated are
proceedings of the nature of criminal proceedings before a court of
law or a judicial tribunal and "prosecution" in this context would
mean an initiation or starting of proceedings of a criminal nature
before a court of law or a judicial tribunal in accordance with the
procedure prescribed in the statute which creates the offence and
regulates tbe procedure.
Where a person against whom proceedings harl been taken by
the Sea Customs Authorities under s. 167 of the Sea Customs Act
and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an
offence under s. 23 of the Foreign Exohange Regulation Act in
respect of the same act:
•
•
S.C.R.
SUPREME COUR'r REPORTS
731
Held, that the proceeding before the Sea Customs Authorities
1958
was not a nprosecution" and the order for confiscation was not a
-
"punishment" inflicted by a Court or Judicial Tribunal within the Maqboo! H1main
meaning of Art. 20(2) of the Constitution and the prosecution was
v
not barred.
The Stat• of
The detenus in a jail made a general assault on jail officials
Bombay.
and some of those who were removed to the cells resorted to
hunger strike; and they were separately confined and letters and
interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the J •il Superintendent filed complaints against them before a Magistrate under
r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences
under ss. 332 and 353and147 and 149 of the Indian Penal Code:
Held, (i) that the detenus were governed by the Punjab
Communist Detenus Rules and not the Prisons Act and the proceedings taken by the Jail Superintendent against the detenus did
not constitute a prosecution and punishment within the meaning
of Art. 20 (2) so as to prevent a subsequent prosecution for offences
under the Indian Penal Code ;
(ii) the Jail Superintendent having taken action under r. 41
(1) for the hunger strike and punished the detenus with stoppage
of letters etc. it was not open to him to make a cnmplaint against
them again to the }fagistrate for the san1e offence of having
com1nitted a jail offence by resorting to hunger strike.
CRIMINAL
APPELLATE
JuRISDICTIO:'I:
Criminal
Ap.peal No. 81 of l!-!52. Appeal by special leave
from the Judgment and Order dated 12th February,
1951, of the High Court ol .J udicatare at Bombay in
Criminal Application No. 644 of 1950. Petitions
Nos. 170, 171and172, being petitions under Art. 32
of the Constitution, were also heard along with
Appeal No. 81 of 1952 ..
Ishwarlal O. Dalal for the appellant.
M. O. Setalvad, Attorney-General for India (Poru1
A. Mehta, with him) for the Snate of Bombay.
S. M. Sikri, Advocate-General of Punjab (Jindra Lal,
with him) for the State of Punjab.
Jagjit Singh, Petitioner in Petition No. 170 of
1951, in person.
Other petitiopers not represented.
1953. April 17. The Judgment of the Court was
delivered by Bhagwati J.
95
•
732
SUPREME COUR'l.
1 REPOR'l'8
(195'3]
1958
BHAGWATI J.-This appeal by special leave from a
,, b -;--H
. judgmeut and order of the High Court of J udic~ture
u<ag ooo
μssarn
B
b
.
·
·
h
v.
at
om ay raises an irnporta!lt quest10n as to t e
Th• Stats of construction of article 20(:J) of the Constitution.
Bombay.
The. appellant, a citiJrnn of Bharat, arrived at the
Bhagwau. J.
•
Sa

## Text

_Characters 0–39,700 of 46,205. This is a partial read: ask again with offset=39700 for what follows._

1953
April 17.
J
730
SUPREME COURT REPORTS
(1953) .
MAQBOOL HUSSAIN
v.
THE STA'l'E OF BOMBAY.
JAGJIT SINGH
v.
THE STATE OF PUNJAB.
VIDYA RATTAN
v.
THE STATE OF PUNJAB.
PARMAN AND
1!.
THE SI'ATE OF PUNJAB.
[PATANJALI SASTRI C.J., MuKHERJEA, S.R. DAs,
GHULAM HASAN and BHAGWATI JJ.]
· Constitution of India, 1B50, Art. 20(2)-Fundamental rights-
".htre fois acquit"-When subsequent prosecution barred-Confiscation of goods by Sea Customs Authorities·-Whether bars prosecution
u11de1· Foreign Exchange Regulation Act-Punishment by Jail
Superintendent under Jail Rules - Whether bars prosecntion under
Penal Gode-Sea Customs Act (VIII of 1878), s.167-Foreign Excha1'ge Regulation Act (VII of 1947), s. 23-Punjab Communist
Detenus Rules, Rule 41.
The wording of Art. 20 of the Constitution and the words
used therein show that the proceedings therein contemplated are
proceedings of the nature of criminal proceedings before a court of
law or a judicial tribunal and "prosecution" in this context would
mean an initiation or starting of proceedings of a criminal nature
before a court of law or a judicial tribunal in accordance with the
procedure prescribed in the statute which creates the offence and
regulates tbe procedure.
Where a person against whom proceedings harl been taken by
the Sea Customs Authorities under s. 167 of the Sea Customs Act
and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an
offence under s. 23 of the Foreign Exohange Regulation Act in
respect of the same act:
•
•
S.C.R.
SUPREME COUR'r REPORTS
731
Held, that the proceeding before the Sea Customs Authorities
1958
was not a nprosecution" and the order for confiscation was not a
-
"punishment" inflicted by a Court or Judicial Tribunal within the Maqboo! H1main
meaning of Art. 20(2) of the Constitution and the prosecution was
v
not barred.
The Stat• of
The detenus in a jail made a general assault on jail officials
Bombay.
and some of those who were removed to the cells resorted to
hunger strike; and they were separately confined and letters and
interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the J •il Superintendent filed complaints against them before a Magistrate under
r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences
under ss. 332 and 353and147 and 149 of the Indian Penal Code:
Held, (i) that the detenus were governed by the Punjab
Communist Detenus Rules and not the Prisons Act and the proceedings taken by the Jail Superintendent against the detenus did
not constitute a prosecution and punishment within the meaning
of Art. 20 (2) so as to prevent a subsequent prosecution for offences
under the Indian Penal Code ;
(ii) the Jail Superintendent having taken action under r. 41
(1) for the hunger strike and punished the detenus with stoppage
of letters etc. it was not open to him to make a cnmplaint against
them again to the }fagistrate for the san1e offence of having
com1nitted a jail offence by resorting to hunger strike.
CRIMINAL
APPELLATE
JuRISDICTIO:'I:
Criminal
Ap.peal No. 81 of l!-!52. Appeal by special leave
from the Judgment and Order dated 12th February,
1951, of the High Court ol .J udicatare at Bombay in
Criminal Application No. 644 of 1950. Petitions
Nos. 170, 171and172, being petitions under Art. 32
of the Constitution, were also heard along with
Appeal No. 81 of 1952 ..
Ishwarlal O. Dalal for the appellant.
M. O. Setalvad, Attorney-General for India (Poru1
A. Mehta, with him) for the Snate of Bombay.
S. M. Sikri, Advocate-General of Punjab (Jindra Lal,
with him) for the State of Punjab.
Jagjit Singh, Petitioner in Petition No. 170 of
1951, in person.
Other petitiopers not represented.
1953. April 17. The Judgment of the Court was
delivered by Bhagwati J.
95
•
732
SUPREME COUR'l.
1 REPOR'l'8
(195'3]
1958
BHAGWATI J.-This appeal by special leave from a
,, b -;--H
. judgmeut and order of the High Court of J udic~ture
u<ag ooo
μssarn
B
b
.
·
·
h
v.
at
om ay raises an irnporta!lt quest10n as to t e
Th• Stats of construction of article 20(:J) of the Constitution.
Bombay.
The. appellant, a citiJrnn of Bharat, arrived at the
Bhagwau. J.
•
Santa Cruz airport from Jedd11h on the tith NoYemher, 1949. On landing he did not declare 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 the 25th August, 1948.
The Customs Authorities thereupon
took action under
section 167,
clanRe (8), of the Sea Customs Act VITI of 1878, and
confiscated the gold by an order dat@d the 19th
December, 1949. 'rhe 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 the 30th .January, 1950, to the
appellant. Nobody came forward to redeem the gold.
On the 22nd March, 19.50, a complaint was filed in
the Court of the Chief Presidency Magistrate, Bombay, aga.inst the appellant charging him with having
committed an offence under section 8 of the Foreign
Exchange Regulation Act VII of 1947, read with the
notification dated the 2.5th August, 1948. 'rhe appellant thereupon on the 12th June, 1950, filed a petition
in the High Court of Bombay under article 228 of the
Constitution contending that his prosecution in the
Court of the Chief Presidency Magistrate wa.s in violation of the fundamental right guaranteed to him
under article 20(2) of the Constitution and praying
that as the case involved a substantial question of
law as to the interpretation of the Constitution, tbe
determination of which was necessary for the disposal
of the case, the case may be withdrawn from the file
of tbe Chief Presidency Magistrate to the High Conrt
and the High Court may either dispose of the case
themselves or determine the question of law and return it to the Chief Presidency Magistrate's Court
for disposal. A rule was issued by the High Court ou
S.C.R.
SUPREME COURT REPORTS
733
the 26th June, 1950,, which ca.me on for hearing on
1963
the 9th August, 1950, before Ba.vdeka.r and Vyas JJ.
.
'l'he rule wa~ made ab,;olute and the High Court Maqbool Hu""'"
directed that the proceedings pending against the The ;;at• of•
appellant in the Court of the Chief Presidency
Bombay.
Magistrate be withdrawn and brought before the
High Court under article 2·28 of the Constitution.
BhagwatiJ.
The case was thereupon withdrawn ani! brought
before the High Court and was heard by the High
Court on the 17th October, 1950. The learned
Judges of the High Court, Cha.gla. C.J. and Gajendragadkar J. were of the opinion that the appellant
could claim the benefit of article 20(2) only if he wa>
the owner of the gold which wn.s confi,cated and that
before they decided as to whether there had been a
prosecution and a. punishment within the meanmg of
article 20(.J) it was necesoary that the Chief Presidency Magistrate should determine the question of
fact as to whether the appellant was the owner of the
gold which had been confiscated and in respect of
which an option was given to him as stated above.
They therefore sent the matter back to the Chief
.Presidency Magistrate djrectiug him to find a:; to
whether the appellant was or was not the owner of
the gold stating that they would deal with the application after the finding was returned. The Chief
Presidency Magistrate recorded evidence and on the
20th January, 1950, recorded the finding ~hat the
appellant was the owner of the gold in q uestiou and
returned the finding to the High Court. Chagla C.J.
and Gajendragadkar J. heard the petition further on
the 12th February, 1951. They reversed the finding
of the Chief Presidency Magistrate, dismissed the
application of the appellant and directed that the
case should go back to the Chief Presidency M agistrate for dispesal according to law. The appellant
obtained on the 1st :'jovember, 1951, special leave to
appeal against the judgment and order passed by the
High Court.
The question that arises for our determination in
this app.eal is whether by re11.son of the procPedin11s
•
734
SUPREME COURT REPORTS
[1953]
1959
taken by the Sea Customs Aut4orities the appellant
u b 7; . could be said to have been prosecuted and punished
ag
00 v. "''"'~for the same offence with which he was charged in
• Th• stats of the Court of the Chief :Presidency Magistrate, BomBombay.
h!Ly. There is no doubt that the act which constitutes
au offence under the Sea Customs Act as also an
•
Bh.agwati J.
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 the 25th August, 1948.
The appellant
could be proceeded against under section 167(8) of the
Sea Customs Act as also under section 23 of the
Foreign Exchange Regulation Act in respect of the
said acb. Proceedings were in fact taken under section 167 (8) of the Sea Customs Act which resulted in
the confiscation of the gold. Furth~r proceedings were
taken under section 23 of the 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 provisions of article 20(2) of the Constitution he could not be prosecuted and punished
agam.
'l'he word offer;ce has not been defined in the Constitution. But article 367 provides that the General
Clauses Act, 1897 (Act X of 1897), shall apply for the
interpretation of the Constitution.
Section 3(37) of
the General Clauses Act defines an offence to mean
any act or omission made punishable by any law for
the time being in force and there is no doubt that both
under the provisions of section 167 (8) of the Sea
Customs Act and section 23 of the Foreign Exchange
Regulation Act the a.ct of the appellant was made
punishable and constituted an offence.
In order however to attract the operati.on of article 20(2) the appellant must have been prosecuted
and punished for the same offence when proceedings
were ta.ken by the Sea Customs Authorities.
The
,
s.c.R.
SbPREME COURT REPORTS
7315
High Court did not go into the question as to whether
l 968
tbe appellant was prosecuted when proceedings were M b ~H
.
• k
b f
h S
C
A h , ,
I
,
aq OO•
uss•in
.a en e ore t e ea
ustoms
ut onties.
t cons1v.
dered the question of punishment in the first instance
The State of
and thought it necessary to arrive at a finding as ta
Bombay.
the ownership of the confiscated gold before it could
consider the application of the appellant.
In the
Bhagwatt .r.
opinion of the High Court the appellant could be
said to have been punished only if it were established
that he was the owner of the confiscated gold. If he
was the owner, the confiscation was ·a punishment,
which would not be so if he W'as not the owner of the
gold.
This question of the ownership of the gold was not
in our opinion material. 'l'he gold was found in the
possession of the appellant when he landed at the
Santa Uruz airport. '!'he appellant was detained and
searched by the Customs.Authorities and the gold was
seized from his person.
Proceedings under section
167 (8) were taken by the Customs Authorities and
after examining witnesses an order was passed on the
19th December, 1949, confiscating the gold and giving
an option to the owner to pay a fine of Rs. 12,000 in
lieu of such confiscation under section 183 of the Sea
Customs Act.
Copy of this order was forwarded to the
appellant and for all practical purposes the appellant was treated as the owner of the confiscated gold.
As a matter of fact when evidence was recorded before the Chief Presidency Magistrate on remand the
Assistant Collector of Customs gave evidence that no
one else had claimed the gold and had the appellant
paid the penalty and obtained the Reserve Bank permit and produced the detention slip be would have
been given the gold.
Once the appellant was found.
in possession of the confiscated gold the burden of
proving that he was not the owner would fall upon
whosoever affirmed that he was not the owner.
'!.'be
complaint which was filed in the Court of the Chief
Presidency Magistrate, Bombay, also proceeded on the
footing that the appellant committed an offence in so
far as he brought the gold without the permit from
736
SUPREME COUR'l' REPORTS
[i953j
I95B
the Reserve Bank of India, that no permit was.ever
-
. applied for or granted to the appellant and that the
Maqbool Hussa•n
l
h
b
·
·
f h
'
v
appel ant ad
een given an opportumty o s owmg
'
The s;ate of whether he had obtained such permit but that he
Bombay.
failed to produce the s:i,me. It appears therefore that
the question of the ownership could not assume as
BhagwatiJ. much importance ~s the High Court attached to it.
If the Court came to the conclusion that the appellant was prosecuted wheu proceedings were taken by
the 8ea Customs Authorities there was not much
scope left fort-he argument that he was not punished
by the confiscation of tlle gold and the option given
to him to pay a fine of Rs. 12,000 in lien of such confiscation. 'fo be deprived of the right of possession
of valuable goods may well be regarded in certain
circumstances as by itself a punishment.
We have
therefore got to determine whether under the circumstances the appellant cau be said to have been prosecuted when proceedings were taken by the Sea
Customs Authorities.
The fundamental right which is guaranteed in article 20(2) enunci&tes the principle of "autrefois convict" or "double jeopardy". 'fhe roots of that principle are to be found in the well established rule of the
common law of England "that where a person has been
convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal
proceedings for the same offence." (Per Charles J. in
Reg. v. Miles (1).
'l'o the same effect is the ancient
maxim "Nemo bis debet punire pro uno delicto'', that
is to say that uo one ought to be twice punished for
one offence or q,s it is sometimes written "pro eadem
causa'', ,that is, for the same cause .
. :This is the principle on which the party pursued
h-as available to him the plea of "autrefois convict"
or"autrefois acquit''.
"'rhe plea of 'autrefois convict' or 'autrefois acquit' a,;ers that the defendant
has 'been previously convicted or acquitted on a
charge for the same offence as that in respect of
which he is arrnigned ...... The question for the 'jury
(I) •4 Q.B.D. 423,
S.C.R.
SUPREME COURT REPORTS
737
· on the issus is whether the defendant has previouqly
1953
been ip jeopardy iu re;;pect of the charge on which he,, 6 -;--H
.
.
.
d f
h
l
f [
,
;uaq OO•
ussain
is arra1gne , or t e ru e o
aw Is that a person must
v.
not be put in peril twice for the same offence.
The
ThB Stat• of
test is whether the former offence .and the offence no~ Bombay.
charged have the~me 1ngrer11e.uts IU the sense that
-
.
the facts constitutmg the oue are sufficient to justify
Bhagwat• .r.
a conviction of the other, not that the facts relied on
by the Crown are the same in the two trials.
A plea
of 'autrefois acquit' is not proved unless it is shown
that the verdict of aGquittal of the previous charge
necessarily involves an acquittal of the latter." (Vide
Halsbnry's
Laws of England, Hailsham Edition,
Vol. 9, pages 152 and 163, paragraph 212).
This principle found recognition in section 26 of
the General Clauses Act, 1897 ,-
"Where an act or omission constitutes an offence
under two or more enactments, then the offender shall
be liable to be prosecuted and punished nuder either
or any of those enactment& but shall not be liable to
be punished twice for the same offence,"
and also in section 403 (1)
of
the Criminal
Procedure Code, 1898,-
" A person who ·has been tried by a court of
competent jurisdiction for an offence and convicted
or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be
tried again for the same offence, nor on the same facts
for any other offence for which a different charge
from the one made against him might have been made
under section 236, or for which he might have been
convicted under section 237."
The Fifth Amendment of the American Constitu·
tion enunciated this principle in the manner follow·
ing:-
" ............... nor shall any person be subject for the
same offence to be twice put in jeopardy of life or
limb; nor shall be compelled, in any criminal case, to
be witness against himself .......... , .... "
738
SUPREME COURT REPORTS
[1953]
t95B
Willis in his Constitutional Law, at page .528, obserb -19
. ves that the phrase "jeopardy of lifo or limb" indicates
Maq oo
ussa<n h
1•
•
•
•
•
d t
·
f
h
v
t at tue 1mmumty 1s restncte
o crimes o
t e
The st~t• of big best grade, and this is the way Blackstone states
Bombay.
the rule: "Yet, by a gradual process of liberal con·
struction the courts have extended the scope of the
Bhagwali J. clause to make i~ applicable to all indictable offences,
including misdemeanours." .......... " Under the United
States rule, to be put in jeopardy there must be a
valid indictment or information duly presented to a
court of competent jurisdiction, there must be an
arraignment and plea, and a lawful jury must be
impanelled and sworn. It is not necessary to have a
verdict.
The protection is not against a second
punishment but against the peril in which he is placed
by the jeopardy mentioned."
These w~re the materials which formed the background of the guarantee of fundamental right given
in article 20(2). It incorporated within its scope the
plea of "autrefois convict" _as known to the British
jurisprudence or the plea of double jeopardy as known
to the American Constitution but circumscribed it by
providing that there should be not only a prosecution
but also a punishment in the fir3t instance in order
to operate as a bar to a second prosecution and
punishment for the same offence.
The words "before a court of law or judicial
tribunal" are not to be found in article 20(2). But if
regard be had to the whole background indicated
above it is clear that in order that the protection of article 20(2) be invoked by a citizen there
must have been a prosecution and punishment
in respect of the same offence before a court of law or
a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must
be authorised by law to administer and not before a
tribunal which entertains a departmental or an administrative enquiry even though set up by a statute
but not required to proceed on legal evidence given
on oa.th. The very wording of article 20 and the
words use<l therein:-" convicted", " commission of
•
S.C.R.
SUPREME COURT REPORTS
739
the act charged as an offence", "he subjected to a
1968
penalty", "commission of the offence"," prnsecutedM b -lH
.
d
. h d" "
d
f
ff
"
ld
aq oo
u•M•n
an
pums e
,
accuse
o any o euce , won
v.
indicate that the proceedings therein contemplated The state of
are of the nature of criminal proceedings before a
Bombay,
court of law or a judicial tribunal and the prosecution in this context would mean an initiation or startBhagwati '·
ing of proceedings of a criminal nature before a court
of law or a judicial tribunal in accordance with the
procedure prescribed in the statute which creates the
offence and regulates the procedure.
The tests of a judicial tribunal were laid down by
this Court in Bharat Bank Ltd., Delhi v. Employees
of the Bharat Bank Ltd., Delhi(') in the following
passage quoted with approval by Mahajan and
Mukherjea JJ. from Oocper v. Wilson(') at page 340 :-
"A true judicial decision presupposes ~n existing
dispute between two or more parties and then involves
four requisites :-(1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) If the dispute between them is a question of
fact, the ascertainment of the fact by means of evidence adduced by the parties to the di,pute and often
with the assistance of argument by or on behalf of the
parties on the evidence; (3) If the dispute between
them is a question of law, the submission of legal
argument by the parties; and ( 4) A decision which r"'
disposes of the whole matter by a finding upon the
facts in dispute and application of the law of the
land to the facts so found, including where required a
ruling npon any disputed question of law."
The question whether the Sea Customs Authorities
when they entertained proceedings for confiscation
of tbe gold in question acted as a judicial tribunal
has got to be determined in accordance with the abov~
tests.
The Sea Customs Act, 1878, was enacted to consolidate and amend the law relating to the levy of sea
customs duties. The hierarchy of the officials are the
(1) (1950] S.C.R. 459,
96
(2) [1937] 2 K.B. 309. •
740
SUPREME COURT REPORTS
[1953
1958
Customs Collector, who is the officer of· Customs for
u b ~ . the time being in separate charge of a custom house,
aq
00 v ussaintbe Chief Customs Officer who is the 'Chief ExecuTh• Stat• of tive Officer of the Sea Customs for a port and the
Bombay.
Chief Customs Authority which is the Central Board
of Revenue.
Sections 18 'and 19 enact prohibitions
Bhagwati J. and restrictions on importation and exportation of
goods and section 19 (a) provides for detention and
confiscation of goods whose importation is prohibited.
After making various provisions for the levy of sea
customs duties, Chapter XVI enacts offences and
penalties and several offences mentioned in the first
column of the scheaule to section 167 are made
punishable with penalties mentioned in the third
column thereof. Item 8 relates to the offence committed by the importation of goods contrary to the prohibition or restriction imposed in that behalf under
sections 18 and 19 of the Act and penalty prescribed
for such an offence is:-
"Such goods shall be liable to confiscation; any
person concerned in any such offence shall be liable
to a penalty not exceeding three times the value of
the goods, or not exceeding one thousand rupees."
Chapter XVII prescribes the procedure relating to
offences, appeals, etc. Powers of search are given to
the officers of customs but provision is made that a
person about to be searched can require the officer to
take him previous to search before the nearest Magistrate or Customs Collector. Search warrant can only
be issued by the Magistrate and can be executed in
the same way and has the same effect as a search
warrant issued under a law relating to criminal procedure.
Powers are also given to the officers of
Customs to arrest persons reasonably suspected ol
_having committed an offence under the Act but the
person arrested is to be forthwith taken before the
nearest Magistrate or Customs Collector. The Magis·
trate is entitled either to commit such person to jail
or order him to be kept in custody of the police for
such time as is necessary to enable the Magistrate to
communicl'.te with the proper officers of Customs. No
•
S.C.R.
SUPREME COUH'l' REPORTS
741
such power is given to the Customs Collector. Sec1953
tion 18l(A) also prnvides for the detention of pack-
-
· ·
·
bl
.
.
d ·
h Maqboo! Himain
age' conta1111ng cei:t1a1 pu teat100.; unporte mto t e
States. Section 182 provides that except in the case Th• ~~tao/
of certain offences therein mentioned which involve
Bombay.
proceedings before a Magistrate confiscation, increased rate of duty or penalty can be adjudged by the
Bh?gwati J.
Customs Authorities therein mentioned and section 183 provides for option to be given to the owner
of the goods confiscated to pay in lieu of confiscation such fine as the officer thinks fit. Section 186 provides that the award of any confiscation, penalty or
increased rate of duty under the Act by an officer of
Customs is not to prevent the infliction of any punish·
ment to which the person affected thereby is liable
under any other law. An :ippea,l is provided under
section 188 from a decision or order of the officer of
Customs to the Chief Customs Anthoritv who is
thereupon to make such further enquiry" and pass
such order as he thinks fit confirming, altering or
annulling the deuision or or.der appealed against.
Section 191 provides .for a revision by the Central
Government on the application of a person aggr.ieved
by any decision or order passed by an officer of Customs or the Chief Customs Authority from which no
appeal lies. Section 193 provides for the enforcement of the payment of penalty or increased rate of
duty as adjudged against any person by an officer of
Customs. If such officer is not able to realise the unpaid amount from other goods in charge he can notify
in writing tQ any Magistrate within the local limits
of whose jurisdiction such person may be, his name
and residence and the amonnt of penalty or increased
rate of duty unrecovered and such Magistrate is
thereupon to proceed to enforce payment of the said
amount in like manner as if such penalty or increased
rate had been a fine inflicted by himself.
It is clear on a perusal of the above provi,;ions that
the powers of search, arrest and detention are given
to the Cnstoms Authorities for the levy of sea cnstoms
duties and provision is made at the same ti~e for a
742
SUPREME COURT REPOR'i'S
[1953j
1963
reference to the Magistrate in all cases· where search
b - 1-
. warrants are needed and detention of the arrested
Mag oo HuS3a•n
·
· d C
·
ff
f
·
t
v.
person 1s require .
ertam o ences o a senous na ure
·Th• St•te of are to be tried only by Magistrates who are the only
Bombay.
authorities who can inflict punishments by way of
imprisonment. l!;ven though the customs officers are
Bhagwati J. invested with the power of adjudging· confiscation,
increased rates of duty or penalty the highest penalty
which can be inflicted is Rs. 1,000. Confiscation is no
doubt one of the penalties which the Customs Authorities can impose but that is more in the nature of
proceedings in rem than proceedings in parsonam, the
object being to confiscate the offending goods which
have been dealt with contrary to the provisions of the
law and in respect of the confiscation also an option
is given to the owner of the goods to pay in lieu of
confiscation such fine as the officer thinks fit.
All
this is for the enforcement of the levy of and safeguarding the recovery of the sea customs duties.
There is no procedure prescribed to be followed by
the Customs Officer in the matter of such
adjudication and the · proceedings before the Customs Officers are not assimilated in any manner
whatever to proceedings in courts of law according
to the provisions of the Civil or the Criminal
Procedure Code.
'l
1he Customs
Officers are not
required to act judicially on legal evidence tendered
on oath and they are not authorised to administer
oath to any witness.
The appeals, if any, lie before
the Chief Customs Authority which is the Central
Board of Revenue and the power of revision is given
to the Central Government which certainly is not a
judicial authority. In the matter of the enforcement
of the payment of penalty or increased rate of duty
also the Customs Officer can only proceed against
other goods of the party in the possession of the
Customs Authorities. But if such penalty or increased
rate of duty cannot be realised therefrom the only
thing which he can do is to notify the matter to the
appropriate Magistrate who is the only person empowered to enforce payment as if such penalby or
)
•
,
S.C.R.
SUPREME COURT REPORTS
743
increased rate of duty had· been a fine inflicted by
I9M
himself. The process of recovery can be issued only
-
.
b th M
.
d
b
h C
A h .
Magbool Huuain
y
e
ag1strate an not y t e
ustoms
ut onty.
v
All these provisions go to show that far from being
Th• s;at• of
authorities bound by any rules of evidence or procedBombay.
ure established by law and invested with power to
enforce their own judgments or orders the Sea CusBhagwati J.
toms Authorities are merely constituted administrative
machinery for the purpose of adjudging confiscation,
increased rates of duty and penalty preseribed in
the Act.
The same view of the
functions and
powers of Sea Customs Officers was expressed in a
decision of the Bombay High Court to which
our attention was called.
(See Mahadev Ganesh
Jamsandekar v. The Secretary of State for India in
Council(').
We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of
confiscation, increased rate of duty or penalty under
the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of
double jeopardy.
It therefore follows that when the Customs Authorities confiscated the gold in question neither the
proceedings taken before the Sea Customs Authorities constituted a prosecution of the appellant nor
did the order of confiscation constitute a punishment
inflicted by a court or judicial tribunal on the appellant. The appellant could not be said by reason of
these proceedings before the Sea Customs Authorities to have l)een "prosecuted and punished" for the
same offence with which he was charged before the
Chief Presidency Magistrate, Bombay, in the complaint which was filed against him under section 23 of
the Foreign Exchange .Regulation Act.
The result therefore is that the appeal fails a.nd
must be dismissed.
Petitions Nos. 170, 171 and 172 of 1951.
{I) 119221 I.L.R. 46 Bom. 732.
744
SUPHEME COURT REPORTS
[1953j
1958
By an order of this Co.urt dated the·26th Novemb - 1-
. her, 1952, these petitions were ordered to be heard by
Moq
00 vHuss••• the Constitution Bench along with Criminal Appeal
The s;ateof No. 81of1952, as the same point as regards "autreBombay.
fois convict" or "double jeopardy" was also involved
therein. Jagjit Singh, Vidya Rattan and Parma Nand,
Bhagwati J. the three petitioners in the respective petitions were
detenus under the Preventive Detention Act, 1950,
detained in the Central Jail, Ferozepur, and governed
by the Punjab Communist Detenus Rules, 1950, framed
by the Government of Punjab under section 4(a) of
the Act.
On the 6th J?ebruary, 1950, it is alleged, a
general assault on jail officials was made by the
detenus including J agjit Singh. An alarm was rung
and the warder guard after some time overpowered
the detenus who were responsible for the assault.
Thirteen jail officials and twelve detenus sustained
injuries and the detenus were all removed to cells. On
the 7th February, 1950, the three detenu petitioners
resorted to a hunger strike which continued upto the
10th April, 1950. They were separately confined from
and after the 6th February, 1950.
'!'heir letters
and interviews were stopped for two months with
effect from the 7th February, 1950, and papers and
books were stopped with effect from the 8th February, 1950, for the duration of the hunger strike.
The. hunger strike continued and they continued to be separately confined till the 10th April,
1950. It appears that more than H months after the
hunger strike the Jail Superintendent, Shri K. K.
Mattu, filed a complaint against .Jagjit ':iingh in the
Court of Shri P. L. Soudhi, M.LC., Ferozepur, under
rule 41(2) of the Punjab Communist · Detenus Rules
charging him with having committed a jail offence in
resorting to hunger strike. He also filed a complaint
before the same Magistrate against Jagjit 8ingh for
having committed offences under sections 332 and
353 and sections 147 and 149 of the Indian Penal
Code.
He further filed against Vidya Rattan and
Parma Nand complaints under rule 41 (2) of the Punjab Communist Datenus Rules for having committed·
S.C.R.
SUPREME COUR'f REPORTS
745
a.
jail offenoe in resorting to hunger strike.
On
I91iB
the 16th February. 1951, the three detenu petitioners M b lH
.
filed before this Court petitions under article 32 of •q
00
v. '"'""'
the Constitution asking for the issue of a writ of proThe state of
hibition not to proceed with the prosecutions of the
Bombay.
petitioners in the said cases on the ground that they
had been prosecuted and punished for the same
Bhagwati J.
offence already by the Jail Superintendent and therefore they could not be prosecuted and punished for
the same offence once again and that the prosecutions
which were launched against them in the Court of
Shri P. L. Soudhi, M.I.C., Ferozepur, could not lie as
being in contravention of the fundamental right
guaranteed nuder article 20 (2) ·of the Constitution.
J agjit Singh argued his own petition in person.
Vidya Rattan had intimated to this Court tha.t he
would be satisfied with the decision on Jagjit Singh's
petition and wanted his absence to be excused. Parma
Nand did not appear at t!:ie hearing even though
notice of the hearing was served upon him.
It was urged by Jagjit Singh that the proceedings
which were adopted by
the
Jail Superintendent
against the petitioners amounted to their prosecution
and punishment for the same offence and that therefore the prosecution which was now launched against
them was not competent as it exposed them to double
jeopardy and violated the fundamental right guaranteed to them nuder article 20(2). It was on the other
hand urged by the Advocate-General of Punjab that
the Jail Superintendent merely took disciplinary
action against the petitioners and the punishment if
any which was meted out to them was for breaches of
discipline within the meaning of section 4(a) of the
Act and the Punjab Communist Detenus Rules, 1950,
framed thereunder, that there was no prosecution and
punishment of the petitioners within the meaning of
article 20(2) and that therefore the petitions were
liable to be dismissed.
Section 4 of the Preventive Detention Act, 1950
(Act No. IV of 1950), provides for power to regulate
place and conditions of detention.
·
746
SUPREME COURT REPORTS
(1953)
19sa
" Every person in respect of whom· a detention
-
. order has been made shall be liableMagbooz Hussa,~.n
.
v.
(a) to be detained m such place and under such
Th• State of conditions, including conditions as to maintenance,
Bombay.
discipline and punishment for breaches of discipline,
as the appropriate Government may, by general or
Bhagwati J.
. l
d
. f
,,
spema or er, spem y ........... .
'rhe Punjab Communist Detenus Rules, 1950, were
framed by the Government of Punjab in exercise of
the powers conferred by section 4 (a) of the Act.
Rules 39, 40 and 41 provide for offences and punishments. Rule 39 lays down certain rules of discipline
and rule 40 provides.that any detenu who contravenes
any of the provisions of rule 39 or refuses to obey any
order issued thereunder, or does any of the acts
~entioned in the following portion cf the rule 40,
vie.:-
{i) assaults, insults, threatens or obstructs any
fellow prisoner, any officer of the jail or any other
Government servant, or any person employed in or
visiting the jail, or .............. ..
(xii-a) goes on hunger-strike (other than a token
strike), or ..........
shall be deemed to have committed a jail offence.
Rule 41 is important and bears particularly on the
question which we have to decide. It provides:-
"(l) Where upon suoh enquiry as 3e thinks fit to
make, the Superintendent is satisfied that a detenu
is guilty of a jail offence, he may a.ward the detenu
one or more of the following punishments :-
(a) confinement in cells for a period not exceeding 14 days .........
(d) cancellation or reduction, for a period not
exceeding two months of the privilege of writing and
receiving letters or of receiving newspapers and
books,
(e) cancellation or reduction, for a period not
exceeding two months of the privilege of having in-
~erviews ........ ,
..
S.C.R.
SUPREME COURT REPORTS
747
(2) If any detenu is guilty of a jail offence which
19~8
by reason of his having frequently committed such M qboo!Hussain
offences or otherwise is in the opinion of the Superin-
"
v.
tendent not adequately punishable by him under the Th• Stat• of
provisions of sub-rule (1), he may forward such
Bombay.
detenu to t'he Court of a Magistrate of the first class
having jurisdiction, and such Magistra~e shall thereBhagwati J.
upon inquire into and try the charge so brought
against the deteuu and upon conviction shall sentence
him to imprisonment for a term not exceeding one
year: Provided that where the act coustit_utiug the
offence constitutes an offence punishable under the
Indian Penal Code with imprisonment for a term
exceeding one year, nothing in this rule shall preclude the deteuu from being tried and sentenced for
such offence in accordance with the provisions of the
Indian Penal Code."
It is clear from the above rules that the Jail Superintendent is constituted the authority for determining
whether a detenu is guilty of a jail offence and for the
award to such a deteuu of one or more of the punishments prescribed in rule 41. If this punishment is
considered to be a,dequate the Jail Superintendent is
to award him the appropriate punishment. No procedure is prescribed by the rules and the Superintendent is not required to act only on evidence given on
oath.
He can punish after such enquiry as he thinks
fit to make.
Thus he may not take any evidence or,
make any judicial enquiry at all but may yot punish.
If however the detenn cannot in the opinion of the
Ja.il Superintendent be adequately punished by him
by reason of his having frequently committed such
offence or otherwise the Jail Superintendent is empowered to forward such a detenu to the Court of a
Magistrate of the First Class having jurisdiction and
the jail offence in that case can be enquired into by
the Magistrate who would try the charge brought
against the deteuu, <;onvict him and sentence him to
imprisonment for a term not exceeding one year.
Tbe proviso covers the cases where the offence is
punishable with imprisonment for a term exceeding
97
748
SUPREME COURT REPORTS
[1953)
1958
one year under the India'.l Penal Code aHd nothing in
Maqbooi Hu,,ain rule 41 is to preclude th,3 detenu from being tried and
v.
sentenced for such offence in accordance with the
Tho Stat• of provisions of the Indian Penal Code.
'l'he whole
Bombay.
scheme of rule 41 is to constitute the Jail Superintendent only an administrative authority to maintain
Bhagwati J. jail discipline and inflict summary punishment on the
detenus for breach of that discipline by committing a
jail offence. It is only when the Jail Superintendent
considers that the offence is not adequately punishable .by him that he can send the case to the Magistrate. If he actually himself punishes he cannot,
under this rule, refer the case again to the Magistrate.
A reference by him after punishment will be wholly
unauthorised and without jurisdiction and the prosecution before the Magistrate would be illegal and not
in accordance with procedure established by law.
It was contended that nuder sections 45, 46 and 52
of the Prisons Act ([X of 1894) the Jail Superintendent was constituted an authority bound to act judicially for the purposes of enquiry into and trial of
the prisoners for similar offences and the detenus
under the Punjab Communist Detenus Rules, 1950,
being put in the same category as civil prisoners the
proceedings before the Jail Superintendent for having
committed the Jail offences under rules 40 and 41
above amounted to a prosecution of the petitioners
before him as a judicial tribunal.