# THOMAS DANA v. THE STATE OF PUNJAB

- **Citation:** [1959] Supp. 1 S.C.R. 274
- **Court:** Supreme Court of India
- **Decided:** 1956-09-20
- **Case number:** Criminal Revision No. 145 of 1958
- **Bench:** S. R. Das, N. H. Bhagwati, B. P. Sinha, K. SuBBA RAO, K. N. WANCHoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thomas-dana-v-the-state-of-punjab-1655
- **Pages:** 37

## Headnote

Sea Customs-Confiscation of goods and imposition of penalty
by Collector of <;ustoms-Subsequent conviction and sentence by
Magistrate, if violative of fundamental right to protection against
double jeopardy-Constitution of India, Art. 20(2)-Sea Customs
Act, I878 (8 of I878), ss. I67(8) and I67(8I).
The two petitioners were apprehended while attempting to
smuggle a huge amount of Indian and foreign currency and other
contraband goods out of India and the Collector of Central Excise
and Land Customs passed orders confiscating the seized goods
and imposing heavy personal penalties on both of them under
(1) S.C.R. SUPREME COURT REPORTS
275
s. 167(8) of the Sea Customs Act. On a subsequent complaint
made by the Customs Authorities on the same facts, the petitioners were convicted and sentenced by the Additional District
Magistrate to various terms of imprisonment under s. 23, read
withs. 23B, of the Foreign Exchange Regulation Act, s. 167(81)
of the Sea Customs Act and s. 120B of the Indian Penal Code.
The Additional Sessions Judge in appeal affirmed the said orders
of conviction and sentences and the High Court refused to interfere in revision. It was contended on behalf of the petitioners,
who had, at an earlier stage, made an unsuccessful attempt to
move this Court under Art. 32 and have the prosecutions quashed, that the orders of conviction and sentences passed on them
by the Courts below infringed the constitutional protection
against double jeopardy afforded by Art. 20(2) of the Constitution.
Held, (Per Das, C. J., Bhagwati, B. P. Sinha and Wanchoo,
JJ., Subba Rao, J., dissenting) that the contention was without
substance and must be negatived.
In order to sustain a plea of double jeopardy and to avail of
the protection of Art. 20(2) of the Constitution it was incumbent
to show that (1) there was a previous prosecution, (2) a punishment and (3) that for the same offence, and unless all the three
conditions were fulfilled the Article did not come into operation.
The word 'prosecution' as used in that Article contemplated a
proceeding of a criminal nature either before a court or a judicial
tribunal.
Maqbool Hussain v. The State of Bombay, [1953] S.C.R. 730,
relied on.
The insertion of s. l87A into the Sea Customs Act by the
amending Act of 1955, left no scope for doubt that the hierarchy
of Authorities under that Act functioned not as Courts or judicial
tribunals but as administrative bodies, even though in recording
evidence or hearing arguments they acted judicially. The words
" offences " and " penalties " used by the Act could not have the
same meaning as in Criminal Law and a penalty or confiscation
ordered under s. 167(8) of the Act could not be a punishment
such as is inflicted by a Criminal Court for a criminal offence.
Sewpujanrai Indrasanrai Ltd. v. The Collector of Customs and
others, [1959] S.C.R. 821, referred to. '
Nor were the Customs Authorities invested with the powers
of a Criminal Court under the Schedule to s. 167 and the
procedure laid down by Ch. XVII of the Act, and any orders
passed by them either in rem or in personam, by way of confiscation of the goods or imposition of penalties on the person,
could only be in the nature of administrative ones made in the
interest of revenue and could not bar a criminal prosecution.
Morgan v. Devine, 59 L. Ed. n53: 237 U.S. 632 and United
States of America v. Anthony La Franca, ?5 L. Ed. 551: 282 U.S.
568, considered.
Thomas Dana
v.
Th• State of
Punjab
1958
1'homas Dana
v.
The State of
I'unjab
276
SUPREME COURT REPORTS [1959] Supp.
The proceedings against the petitioners before the Collector
of Customs under s. 167(8) of the Sea Customs Act could not,
therefore, be a prosecution within the me:ining of Art. 20(2) of
the Constitution and the petitioners were not put to double
jeopardy.
Per Subba Rao, J.-The prosecution of 'the petitioners before the Magistrate and the punishment inflicted on them
directly infringed Art. 20(2) of the Constitution.
There can be no inco

## Text

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274
SUPREME COURT REPORTS [1959] Supp.
r958
Industrial Tribunal before discharging, punishing or
-
effecting a change in the conditions of service of the
s. K. G. Suga• Ltd. workmen concerned no application under s. 33-A of
Sri A/iv.Hassan, the Act could be maintained against it even on the as.
Chairman, Indus- sumption that the allegations made in the said applitrial Tribunal, cations were correct.
Bihar &- Othm
The result, therefore, is that the proceedings in Miscellaneous Cases Nos. 26 and 27 of 1955 before the resBhagwati ].
N
d
b
p
pondent
o. 1, In ustrial Tri unal, Bihar,
atna are
NovembeY 4.
without jurisdiction and liable to be quashed. The
appeal of the appellant will therefore be allowed, the
order made by the High Court on September 20, 1956,
will be set aside and a writ of certiorari will issue
against respondent No. l quashing the proceedings in
the said Miscellaneous Cases Nos. 26 and 27 of 1955.
The appellant will be entitled to its costs throughout
against the contesting respondents.
Appeal allowed.
THOMAS DANA
v.
THE STATE OF PUNJAB
(and connected appeal)
(S. R. DAS, c. J., N. H. BHAGWATI, B. P. SINHA,
K. SuBBA RAO and K. N. WANCHoo, JJ.)
Sea Customs-Confiscation of goods and imposition of penalty
by Collector of <;ustoms-Subsequent conviction and sentence by
Magistrate, if violative of fundamental right to protection against
double jeopardy-Constitution of India, Art. 20(2)-Sea Customs
Act, I878 (8 of I878), ss. I67(8) and I67(8I).
The two petitioners were apprehended while attempting to
smuggle a huge amount of Indian and foreign currency and other
contraband goods out of India and the Collector of Central Excise
and Land Customs passed orders confiscating the seized goods
and imposing heavy personal penalties on both of them under
(1) S.C.R. SUPREME COURT REPORTS
275
s. 167(8) of the Sea Customs Act. On a subsequent complaint
made by the Customs Authorities on the same facts, the petitioners were convicted and sentenced by the Additional District
Magistrate to various terms of imprisonment under s. 23, read
withs. 23B, of the Foreign Exchange Regulation Act, s. 167(81)
of the Sea Customs Act and s. 120B of the Indian Penal Code.
The Additional Sessions Judge in appeal affirmed the said orders
of conviction and sentences and the High Court refused to interfere in revision. It was contended on behalf of the petitioners,
who had, at an earlier stage, made an unsuccessful attempt to
move this Court under Art. 32 and have the prosecutions quashed, that the orders of conviction and sentences passed on them
by the Courts below infringed the constitutional protection
against double jeopardy afforded by Art. 20(2) of the Constitution.
Held, (Per Das, C. J., Bhagwati, B. P. Sinha and Wanchoo,
JJ., Subba Rao, J., dissenting) that the contention was without
substance and must be negatived.
In order to sustain a plea of double jeopardy and to avail of
the protection of Art. 20(2) of the Constitution it was incumbent
to show that (1) there was a previous prosecution, (2) a punishment and (3) that for the same offence, and unless all the three
conditions were fulfilled the Article did not come into operation.
The word 'prosecution' as used in that Article contemplated a
proceeding of a criminal nature either before a court or a judicial
tribunal.
Maqbool Hussain v. The State of Bombay, [1953] S.C.R. 730,
relied on.
The insertion of s. l87A into the Sea Customs Act by the
amending Act of 1955, left no scope for doubt that the hierarchy
of Authorities under that Act functioned not as Courts or judicial
tribunals but as administrative bodies, even though in recording
evidence or hearing arguments they acted judicially. The words
" offences " and " penalties " used by the Act could not have the
same meaning as in Criminal Law and a penalty or confiscation
ordered under s. 167(8) of the Act could not be a punishment
such as is inflicted by a Criminal Court for a criminal offence.
Sewpujanrai Indrasanrai Ltd. v. The Collector of Customs and
others, [1959] S.C.R. 821, referred to. '
Nor were the Customs Authorities invested with the powers
of a Criminal Court under the Schedule to s. 167 and the
procedure laid down by Ch. XVII of the Act, and any orders
passed by them either in rem or in personam, by way of confiscation of the goods or imposition of penalties on the person,
could only be in the nature of administrative ones made in the
interest of revenue and could not bar a criminal prosecution.
Morgan v. Devine, 59 L. Ed. n53: 237 U.S. 632 and United
States of America v. Anthony La Franca, ?5 L. Ed. 551: 282 U.S.
568, considered.
Thomas Dana
v.
Th• State of
Punjab
1958
1'homas Dana
v.
The State of
I'unjab
276
SUPREME COURT REPORTS [1959] Supp.
The proceedings against the petitioners before the Collector
of Customs under s. 167(8) of the Sea Customs Act could not,
therefore, be a prosecution within the me:ining of Art. 20(2) of
the Constitution and the petitioners were not put to double
jeopardy.
Per Subba Rao, J.-The prosecution of 'the petitioners before the Magistrate and the punishment inflicted on them
directly infringed Art. 20(2) of the Constitution.
There can be no inconsistency in an authority under an Act
functioning in an administrative capacity in respect of certain
specified duties while it acts as a judicial tribunal in respect of
others, and the question as to which of them it discharges in a
judicial capacity has to be decided on the facts of each case and
in the light of well-settled characteristics of a judicial tribunal.
Cooper v. Wilson, [1937] 2 K. B. 309 and Venkataraman v.
Union of India, [1954] S.C.R. II50, relied on.
Although this Court has held that the Sea Customs Authorities in adjudging confiscation do not function as judicial tribunals but as mere administrative authorities, the question as to
whether in irnposing persqnal penalties they act as judicial
tribunals still remains open.
Maqbool Hussain v. The State of Bombay, [1953] S.C.R. 730
and Sewpujanrai lndrasanrai Ltd. v. The Collector of Customs,
[1959] S.C.R. 821, explained.
An examination of the entire scheme of the Sea Customs Act
leaves no manner of doubt that the Customs Authorities act as
judicial tribunals so far as offences under s. 167 of the Act are
concerned.
The word 'prosecuted' used in Art. 20(2) of the Constitution
is comprehensive enough to include a prosecution before an
authority other than a Magistrate or a Criminal Court, and the
offences described in s. 167 of the Sea Customs Act are offence;:;
within the meaning of the General Clauses Act and the Indian
Penal Code and the penalties prescribed therefor are nothing but
punishments inflicted for those offences either by the Custon1s
Authorities or the Magistrate.
The question of the identity of an offence lrns to be determined on the facts of each particular case and the real test is
,vhether the previous prosecution and punishment \Vere 'based on
the same facts on which rested the subsequent prosecution an<l
punishment.
ORIGINAL JURISDICTION:
Petition No. 65 of 1958.
Petition under Article 32 of the Constitution of
India for enforcement of fundamental rights.
AND
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 112 of 1958.
(1) S.C.R. SUPREME COURT REPORTS
277
Appeal by special leave from the judgment and
order dated February 28, 1958, of the Punjab High
Court in Criminal Revision No. 145 of 1958.
N. C. Chatterjee and Nanak Chand, for the petitioner
and the appellant.
·
H. N. Sanyal, Additional Solicitor-General of India,
H.J. Umrigar, R. H. Dhehar and T. M. Sen, for the
respondent in both the matters.
1958. November 4.
The Judgment of Das, C. J.,
Bhagwati, Sinha and Wanchoo, JJ. was delivered by
Sinha J . ., Subba Rao, J., delivered a separate judgment.
SINHA, J.-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 quest,ion 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 N'ovember 16, 1954,
issued by the Government of the Republic of Cuba.
The second petitioner is a citizen of the United S~ates'
of America, and holds a U.S.A. passport No. 45252,
dated July 1, 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 May 14, 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
re<J.ched K<J.rnchi on June 11, 1957, and from there,
flew to Bombay. From June 11 to 19, 1957, they
Thomas Dana
v.
The State of
Punjab
Sinha J.
Thomas Dana
v.
The StaJe of
Punjab
Sinha ].
278
SUPREME COURT REPORTS (1959] Supp.
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 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 Ainritsar,
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 at
Attari, 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:-
Indian currency
Rs. 40
Pakistan currency
Rs. 50
U. S. Dollars
$. 30·00
Gold ring
l (valued at Rs. 100)
Personal effects
Valued at $ lOO·OO
Car
Valued at Rs. 15,000
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 :-
Indian currency
Pakistan currency
U.S. Dollars
. Hong Kong Dollars
Thailand currency
Pocket radio
Time-piece
Rs. 900
Rs. 250
$.
l·OO
$.
l·OO
78
1
1
' .
(1) S.C.R.
SUPREME COURT REPORTS
279
The second petitioner, in his statement, had declared
the following articles :-
Indian currency
Rs. 40
U~ S. Dollars
$.
500·00
U.S. Coins
$.
1·23
Belgian coins
BJ!' 26·00
French coins
BF 205·00
Italian coins
II,. 400·00
Wrist watch
1
Persona.I effects
Rs. 1,00,000
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 ta.king appropriate
action under the Indian Arms Act. The car was
thoroughly searched, and as a. result of the intensive
search and minute examination on June 30, 1957, a.
secret chamber a.hove 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 :-
Indian currency
U. S. Dollars
Empty tin containers
(rectangular)
Rs. 8,50,000
$.
10,000·00
10 (The containers bore
marks to indicate that
they were used for
carrying gold ha.rs)
Mirror
1,
besides other insignificant things. Under the Indian
law, Indian currency over Rs. 50, Pakistan currency
over Rs. 100 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
Thomas Dana
v.
The State of
Punjab
Sinha j,
x958
Thomas Dana
v.
The State of
Pu~jab
Sinha J.
280
SUPREME COURT REPORTS (1959] Supp.
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,
Indian currency
Rs. 8,50,900
Pakistan currency
Rs.
250
U.S. Dollars
$.
10,001·00
Hong Kong Dollar
$.
l ·OO
Tha.ila.nd currency
T.
78·00
pocket radio, a.nd the / time-piece, etc., were seized
under s. 178 of the Sea Customs Act, 1878. Both the
petitioners were ta.ken into custody for infringement
of the law. On July 7, both the petitioners were called upon to show cause before the Collector of Central
Excise a.nd Land Customs, New Delhi, why a penalty
should not be imposed upon them under s. 167(8) of
the Sea Customs Act, 1878, and why the seized
articles aforesaid, should not be confiscated under
s. 167(8) and s. 168 ofthe Act. Both the petitioners
objected to ma.king a.ny statements in answer to the
show-cause notice, on the ground tha.t the matter wa.$
subjudice and any statement ma.de by them, migh.t
prejudice them in their defence. But a.t the sa.me time,
the second petitioner disclaimed a.ny 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 ca.use, the Collector of Central
Excise and Land Customs, New Delhi, passed orders
on July 24, 1957. He ca.me to the conclusion tha.t
the petitioners had planned to smuggle Indian a.nd
foreign currency out of India., in contravention of the
law. They ha.d been acting in concert with ea.ch other,
and had, throughout the different stages of their
journey from France to India., been acting together,
and while leaving India. for Pa.kista.n, were travelling
together by the sa.me ca.r, until they reached the
Attari Road Land Customs Station, on their wa.y to
Pakistan. He directed tha.t the different kinds of
currency which had been seized, a.s a.foresa.id, 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
(1) S.C.R.
SUPREME COURT REPORTS
281
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. 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 on each
of the petitioners, under s. 167(8) of the Sea Customs
Act.
After making further inquiry, on August 12, 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 Regnfa.tion 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 November 13, 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 s\lall be
36
Tltonzas Dana
v.
The State of
P1111jab
Si>1ha ].
Thomas Dana
v.
ThtJ StattJ of
Punjab
Sinha ].
.
282
SUPREME COURT REPORTS [1959] Supp.
confiscated ti> 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 December 13, 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 not necessary, for the purposes of these cases, to set
out in detail the findings arrived at by the appelli;i.te
court, or the evidence on which those conclusions were
based. It is enough to state that both the courts of
fact agreed in C()ming to the conclusion that the accused persons had entered into a conspiracy. to smuggle
contraband property out of this country.
The petitioners moved the High Court of Judicature
for the State of Punjab, separately, against their con-
-victions 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 February 28, 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 carpus 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 limine. All these orders
were passed on April 28, 1958. Subsequently, the first
petitioner moved this Court for revocation of the
special leave granted to him, ahd for an early hearing
of his writ petition No. 65 of 1958, as the points for
consideration were common to both the eases. This
(1) S.C.R.
SUPREME COURT REPORTS
283
Court granted the prayers by its order dated May 13,
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
prohibitfon, 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 preser.t case,
refused to guash 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 October 31,
1957, (reported in [1958] S. C. R. 822), it has now become necessary to determine that controversy.
It was vehemently argued on behalf of the petitioners tha~ the prosecution of the petitioners under
the provisions of the Acts aforesaid, and their convictions and imposition of sentences by the courts below,
infringe the protection against double
jeopardy
enshrined in Art. 20(2) of the Constitution, which is in
these terms :-
r958
Thomas D11na
v.
The State of
Punjab
Sinha ].
Thomas Dana
v.
The Statt. of
Punjab
Sinha }.
284
SUPREME COURT REPORTS [1959) Supp.
" No person shall be prosecuted and punished for
the same offence more than once."
It is manifest that in order to bring the petitioners'
case within the prohibition of Art. 20(2), it must be
shown that they had been " prosecuted" before the
Collector of Customs, and " punished " by him for the
"same offence" for which they have been convicted
and punished as a result. of the judgment and orders of
the courts below, now impugned. If any one of these
three essential conditions, is not fulfilled, that is to
sa.y, if it is not shown that the petitioners had been
"prosecuted " before the Collector of Customs, or that
they had been " punished " by him in the proceedings
before him, resulting in the confiscation of the properties aforesaid, and the imposition of a heavy
penalty of Rs. 25,00,000, each, or that they had been
convicted and" sentenced" for the "same offence",
the petitioners will have failed to bring their case
within the prohibition of Art. 20(2). It has been argued, in the first instance, on behalf of the petitioners
that they had been " prosecuted " within the meaning
of the article. On the other hand, the learned Additional Solicitor-Genera.I has countered that argument
by the contention that the previous adjudication by
the Collector of Customs, was by an administrative
body which has to act judicially, as held by this Court
in F. N. Roy v. GollectO'f of Customs('), and reiterated
in Leo Roy Frey v. Superintendent, District Jail,
Amritsar ('); but the Collector was not a criminal
court which could in law, be said to have tried the
petitioner for an offence under the Indian Penal Code,
or under the penal provisions of the other Acts mentioned above.
It is, therefore, necessary first to consider whether
the petitioners had really been prosecuted before the
Collector of Customs, within the meaning of Art. 20(2).
To "prosecute", in the special sense of law, means,
according to Webster's Dictionary, "(a.) to seek to
obtain, enforce, or the like, by legal process ; as, to
prosecute a right or a claim in a court of law. (b) to
pursue (a person) by legal proceedings for redress or
(1) [1957) S.C.R. II51.
(2) [1958] S.C.R. 822.
(1) S.C.R. SUPREME COURT REPORTS
285
punishment ; to proceed against judicially ; esp., to
accuse of some crime or breach of law, or to pursue for
redress or punishment of a crime or violation of law,
in due legal form before a legal tribunal ; as, to prosecute a man for trespass, or for a riot." According to
Wharton's Law Lexicon, 14th edn., p. 810, "prosecution " means '' a proceeding either by way of indictment or information, in the criminal courts, in order
to put an offender upon his trial. In all criminal pros~cutions the King is nominally the prosecutor." This
very question was discussed by this Court in the case
of Maqbool Hussain v. The State of Bombay (1), with
reference to the context in which the word "prosecution" occurred in Art.· 20. In the course of the judgment, the following observations, which apply with
full force to the present case, were made:-
" ...... and the 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
the procedure."
In that case, this Court discussed in detail the provisions of the Sea Customs Act, with particular reference
to Chapter XVI, headed "Offences· and Penalties".
After examining those provisions, this Court came to
the following conclusion :-
"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."
•
The learned counsel for the petitioners, did not
categorically attack the correctness of that decision,
but .·suggested that that case could be distinguished
on the ground that in the present case, unlike the
case then before this Court, a heavy penalty of
Rs. 25,00,000 on each of the petitioners, was imposed
by the Collector of Central Excise and Land Customi;,
(1) [1953] S.C.R. 730, 738, 739, 743·
T honias Dana
v.
The Stale of
Punjab
Sinka ].
Thonu1s Dana
v.
The State of
Punjab
Sinha J,
286
SUPREME COURT REPORTS [1959) Supp.
besides ordering confiscation of properties and currency
worth over Si lacs. · But that circumstance alone can:
not be sufficient in law· to distinguish the previous
decision of this Court, which is otherwise directly in
point. Simply because the Revenue Authorities took
a very serious view of the smuggling activities of the
petitioners, and imposed very heavy penalties under
item 8 of the Schedule to s. 167 of the Sea Customs
Act, would not convert the Revenue Authorities into a
court of law, if the Act did not contemplate their
functioning as such. That the Sea Customs Act did
not envisage the Chief Customs Officer or the other
officers under him in the hierarchy of the Revenue
Authorities under the Act., to function as a Court, is
made absolutely clear by certain provisions of that
Act. The most important of those is the new s. 187 A,
which was inserted by the Sea Customs (Amendment)
Act, (21 of 1955). That section is in these terms:-
" 187A. No Court shall take cognizance of any
offence relating to smuggling of goods punishable under
item 81 of the Schedule to section 167, except upon
complaint in writing, made by the Chief Customs
officer or any other officer of Customs not lower in
rank than an Assistant Collector of Customs authorized
in this behalf by the Chief Customs officer."
This section makes it clear that the Chief Customs
Officer or any other officer lower in rank than him, in
the Customs department, is not a " court '', and that
the offence punishable under item 81 of the Schedule
to s. 167, cannot be taken cognizance of by any court,
except upon a complaint in writing, made, as prescribed
in that section. This section, in our opinion, sets at rest
the controversy, which has been raised in the past upon
certain expressions, like " offences" and "penalties",
used in Chapter XVI. These words have been l}Sed in
that Chapter in their generic sense and not in their
specific sense under the penal law.
\Vhen a proceeding by the Revenue Officers is meant, as is the case in
most of the items in the Schedule to s. 167, those
officers have been empowered to deal with the offending articles by way of confiscation, or with the person
(1) S.C.R. SUPREME COURT REPORTS
287
infringing those rules, by way of imposition of penalties in contradistinction to a sentence of imprisonment
or fine or both. When a criminal prosecution and
punishment of the criminal, in the sense of the Penal
law, is intended, the section makes a specific reference
to a trial by a Magistrate, a conviction by such Magistrate, and on such conviction, to imprisonment or to
fine or both. In this connection, reference may be
made to the penalties meJ.ltioned in the third column
against items 72, 74, 75, 76, 76A, 76B, 77, 78 and 81,
which illustrate the latter class of the penalty in
column 3. The penalties mentioned in the third column
of most of the items of the Schedule to s. 167 of the
Act, do not make any reference to a conviction by a
Magistrate and punishment by him in terms of imprisonment or of fine or of both. For example, item 76C,
which was inserted by the Sea. Customs Amendment
Act X of 1957, in the third column meant for penalties,
has only this "such vessel shall be liable to confiscation and the master of such vessel shall be liable to a
penalty not exceeding one thousand rupees". Item
76A, on the other hand, specifically mentioning conviction, imprisonment and fine, was im1erted by Sea
Customs Act XXI of 1955.
Both the amending Acts,
by which the aforesaid additional offences were created, and penalties prescribed, were enacted after the
coming into force of the Constitution. The Legislature
was, therefore, aware of the distinction made throughout the Schedule to s. 167, between a proceeding before
Revenue authorities by way of enforcing the preventive and penal provisions of the Schedule and a
criminal trial before a Magistrate, with a view to
punishing offenders under the provisions of the same
section. It is, therefore, in the teeth of these provisions to contend that the imposition of a penalty by the
Revenue officers in the hierarchy created by the Act,
is the same thing as a punishment imposed by a.
criminal court by way of punishment for a criminal
offence.
This distinction has been very clearly brought out
in the recent judgment of this Court in the case of
Sewpujanrai lndrasanrai Ltd. v. The Collector of
Thomas Dana
v.
The State of
Punjab
Sinha ].
Thomas Dana
v.
The Stat,, of
Punjab
Sinha ].
288
SUPREME COURT REPORTS
[1959] Supp.
Customs (1 ). In that case, though the question of
double jeopardy under Art. 20(2) of the Constitution,
had not been raised, this Court has pointed out the
difference in the nature of proceedings against offending
art,icles and offending persons.
A. proceeding under
the Sea Customs Act and the corresponding provisions
of the Foreign Exchange Regulation Act, in respect of
goods which have been the subject-matter of the proceeding, has been held to be of the nature of a proceeding in rem whereas, a proceeding against a person concerned in smuggling goods within the purview of those
Acts, is a proceeding in personam, resulting in the imposition of a punishment by way of imprisonment or
fine on him, where the offender is known. In the
former case, the offender may not have been known,
but still the offending goods seized may be confiscated
as a result of t·he proceedings in rem. That case was
not concerned with the further question whether, ·besides the liability to the penalty as contemplated by
s. 23(l}(a), namely, a penalty not exceeding three times
the value of the foreign exchange in respect of which
the contravention had taken place, the person contravening the provisions of the Foreign Exchange Regulation Act, 1947, upon conviction by. a court, is also
punishable with imprisonment which s. 23(l)(b) prescribes, namely, imprisonment for a term which may
extend to 2 years, or with fine, or with both. The
decision of this Court (supra) is also an authority for
the proposition that in imposing confiscation and
penalty under the Sea Customs Act, the Collector acts
judicially. But that is not the same thing as holding
that the Authority under s. 167 of the Act, functions
as a Judicial Tribunal or as a Court.
An ·Administrative Tribunal, like the Collector and other officers in
the hierarchy, may have to act judicially in the sense
of having to consider evidence and hear arguments in
an informal way, but the Act does not contemplate
that in so doing, it is functioning as a court. As
already pointed out, s. 187 A, which was inserted by
the Amending Act of 1955 (21 of 1955), brings out, in
bold relief, the legal position that the Chief Customs
(1) [1959] S.C.R. 821.
(1) S.C.R. SUPREME COURT REPORTS
289
Officer or any other officer of Customs, does not function as a court or as a Judicial Tribunal. All criminal
offences are offences, but all. offences in the sense of
infringement of a law, are not criminal offences. Likewise, the other expressions have been used in their
generic sense and not as they are understood in the
Indian Penal Code or other laws relating to criminal
offences.
Section 167 speaks of offences mentioned in
the first column in the Schedule, and the third column
in that Schedule lays down the penalties in respect of
each of the contraventions of the rules or of the sections in the Act.
There are as many as 81 entries in
the Schedule to s. 167, besides those added later, but
each one of those 81 and more entries, though an
offence, being an act infringing certain provisions of the
sections and rules under the Act, is not a criminal
offence. Out of the more than 81 entries in the
Schedule to s. 167, it is only about a dozen entries,
which cont.emplate prosecution in the criminal sense,
the remaining entries contemplate penalties other than
punishments for a criminal offence.
The provisions of
Chapter XVII of the Act, headed "Procedure relating
to offences, Appeals, etc.", also make it clear that the
hierarchy of the Customs Officers under the Act have
not been empowered to try criminal offences.
They
have been only given limited powers of search. Similarly, they have been given limited powers to summon
persons to give evidence or to produce documents. It
is true that the Customs Authorities have been empowered to start proceedings in respect of suspected
infringements of the provisions of the Act, and to impose penalties upon persons concerned with those
infringements, or to order confiscation of goods or property which are found to have been the subjectmatter of the infringements, but when a trial on ~
charge of a criminal offence is intended under any
one of the entries of the. Schedule aforesaid, it is only
the Magistrate having jurisdiction, who is empowered
to impose a sentence of imprisonment or fine or both.
It was also suggested in the course of the argument
thn.t the use of a particular phraseology in the Act,
37
Thomas Dana
v.
The State of
P1<njab
-· -
5inha ].
Thomas Dana
v.
The Stale of
Punjab
Sinha ].
c )
290
SUPREME COURT REPORTS [1959] Supp.
should not stand in the way of looking at the substance of the matter. It may be that the Act has
drawn a distinction between confiscation of property
and goods, and imposition of penalties on persons concerned with the infringement, on the one hand, and
the imposition of a. sentence of imprisonment or fine
or both by a Magistrate, on the other hand ; but, it is
further contended, the Customs Authorities, who
impose a penalty or who order confiscation of goods of
very large value, are in substance imposing punishments within the meaning of the criminal law. In
this connection, our particular attention was drawn to
para. 24 of the order dated July 24, 1957, passed by
the Collector of Central Excise and Land Customs, New
Delhi, which is in these terms:-
" 24.
Having regard to all the circumstances of
the case, I find that both Sarvshri Thomas Dana and
Leo Roy Frey are equally guilty of the offence. They
attempted to smuggle Indian and foreign currency out
of India.. I hold both of them as the persons concerned in the offence committed under section 167(8) of the
Sea Customs Act, 1878. The foregoing facts prove
beyond doubt that the offence was the result of the most
deliberate and calculated conspiracy to smuggle this
huge amount of currency out of the country. The
offenders, therefore, deserve deterrent punishment. I,
therefore, impose a personal penalty of Rs. 25,00,000
(Rupees twenty-five lakhs only) each on Shri Thomas
Dana and Shri Leo Roy Frey which should be paid
within two months from the date of this order or such
extended period as the adjudicating officer m'l.y
allow."
The expressions " equally guilty of the offence ", "the
offence was the result of the most deliberate and calculated conspiracy to smuggle ", and " deserve deterrent
punishment", have been greatly emphasized in aid of
the argument that the Collector had really intended to punish the petitioners in respect of the "offence",
and found them "guilty". It is true that these
expressions are commonly used in judgments given in
criminal trials, but the same argument can be used
(1) S.C.R. SUPREME COURT REPORTS
291
against the petitioners by saying that mere nomenclature does not matter. What really matters is whether
there has been a " prosecution ".
It is true that the petitioners were dealt with by the
Collector of Central Excise and Land Customs, for the
" offence " of smuggling ; were found "guilty'', and
a deterrent "punishment" was imposed upon them,
but as he had. not been vested with the powers of a
Magistrate or a criminal court, his proceedings against
the petitioners were in the nature of Revenue proceedings, with a view to detecting the infringement of the
provisions ~f the Sea Customs Act, and imposing
penalties when it was found that they had been guilty
of those infringements. Those penalties, the Collector
had been empowered to impose in order not only to
prevent a recurrence of such infringements, but also to
recoup the loss of revenue resulting from such infringements. A person may be guilty of certain acts which
expose him to a criminal prosecution for a criminal
offence, to a penalty under the law intended to collect
the maximum revenue under the Taxing law, and/or,
at the same time, make him liable to damages in torts.
For example, an assessee under the Income-tax law,
may have submitted a false return with a view to
defrauding the Revenue. His fraud being detected, the
Taxing Officer may realise from him an amount which
may be some multiple of the amount of tax sought to
be evaded. But the fact that he has been subjected
to such a penalty by the Taxing Authorities, may not
avail him against a criminal prosecution for the offence
of having submitted a return containing false statements to his knowledge. Similarly, a person may use
defamatory language against another person who may
recover damages in .tort against the maker of such a
defamatory statement. But the f~ct that a decree for
damages has been passed against him by the civil
court, would not stand in the way of his being prosecuted for defamation. In such cases, the law does
not allow him the plea of double jeopardy.
That this is the law in America also, is borne out
by the following quotation from the " Constitution
Thomas Dana
v.
The State of
Punjab
Sinha/.
Tho1nas Dana
v.
The Stale of
Punjab
Sinha ].
292
SUPREME COURT REPORTS [1959] Supp.
of the United States of America "-revised and annotated in 1952 by Edward S. Corwin-at p. 840 :-
"A plea of former jeopardy must be upon a prosecution for the same identical offense.