LEO ROY FREY versus THE SUPERINTENDENT, DISTRICT JAIL, AMRITSAR AND ANOTHER

1957 entitled to copies of the material before the respondent lnayat Ullah previous to the issuing of the notice under s. 7 of the __ c'· d' Act. The appeal, accordingly, fails and is dismissed 'ne usto oan, 'th ts EMl:ttee Property Wl COS . Imam J.

Appeal dismissed.

1957 October, 31

LEO ROY FREY v.

THE SUPERINTENDENT, DISTRICT JAIL, AMRITSAR, AND ANOTHER (and connected petition)

(S. R. DAS. C. J., VENKATARAMA AIYAR, S. K. DAS, A. K. SARKAR and VIVIAN BosE JJ.)

Sea Customs_;_Award of confiscation and penaity-Ij bar to prosecution for criminal conspiracy-Sea Customs Act, 1878 (VIII of 1878), ss. 167 (8), 186-Indian Penal Code (Act XLV of 1860), s. 120B-Constitution of India, Art. 2() (2). •

The petitioners were found guilty under s. 167 (8) of the Sea Customs Act and the currency and other goods recover-ed from their possession were confiscated and heavy per-sonal penalties imposed on them by the Collector of Cen-tral Excise and Land Customs. Complaints were thereafter lodged against them by the Customs authorities before the Additional District Magistrate under s. 120B of the Indian Penal Code, read with s. 23/23B of the Foreign Exchange Regulations Act, 1947, and s. 167 (81) of the Sea Customs Act, as also under other sections of the two latter Acts. The Magistrate granted bail but they could not furnish the requisite security and were, therefore, kept in judicial custody. By two petitions under Art. 32 of the Constitution they prayed for the issue of writs of certiorari and/or pro-hibition for quashing the proceedings pending against them in the Court of the Magistrate as also for the issue of writs of habeas corpus. It was contended on their behalf that in view of the provision of Art. 20 (2) of the ~nstitution they could not be prosecuted and punished twice over for the same offence and the proceedings pending. before the Addi-tional Magistrate violated the protection afforded by Art. 20 (2) of the Constitution.

He!d, that the contention was without substance and the petitions must be dismissed.

The fact that in imposing confiscation and penalties under s. 167 (8) of the Sea Customs Act, the Collector of

Customs acts judicially is not decisive and. d~s not attr~ct 1957 the protection of Art. 20 (2) of the Constitution. Section Leo Roy Frey 186 of the Act does not prevent the infliction of any other v. punishment to which the- person concerned may be liable The ~11p~rintellfle11t,under any other law D[1]str1c! Jail, • Amritsar

• F. N. Roy v. Collector of Customs, Petition No. 438 of 1955, decided on May 16, 1957, referred to.

Criminal conspiracy is an offence under s. 120B of the Indian Penal Code but not so under the Sea Customs Act, and ·the petitioners were not and could not be charged with jt before the Collector of Customs. It is an offence sepa-rate from the crime which it may have for its object and is complete even before the crime is attempted or completed, and even when attempted or completed, it forms no ingre-dient of such crime.

United Swtes v. Rabinowith, (1915) 238 U.S. 78, referred to.

ORIGINAL JURISDICTION: Petitions Nos. 126 and

127 of 1957. (Under article 32 of the Constitution of India for enforcement· of Fundamental Rights.)

N. C. Chatterjee and Nanak Chand for the peti-

tioners.

M. C. Setalvad, Attorney-General for India, B. Sen

and R. H. Dhebar, for the respondents.

1957. October 31. The following Order of the

Court was delivered by

DAS C. J.-In their respective separate petitions,

Das C.J.

t~ petitioners pray ( 1) for an order, direction or writ in the nature of certiorari and/or prohibition calling for the records in the case of the Assistant Collector of Land Customs & Central Excise; Amritsar, against the two petitioners and one Moshe Baruk, on the file of the Additional District Magistrate of Amritsar and for quashing the proceedings therein, habeas corpus for the production before this Court of the persons of the petitioners to be dealt with accord-ing to law.

The facts appearing from the records are shortly as

follows: The petitioner, Leo Roy Frey, purchased car No. C.D. 75TT6587 from an officer of the American Embassay in Paris. This car was sold by the petitioner Frey to the petitioner Thomas Dana, in May 1957. On transfer, the car was registered in the name of the petitioner Dana on May 18, 1957. Both the petitioners thereafter booked their passage,s through the American

1957 Express Company from Geneva to Bombay by s.s. uo Roy Frey ASIA. The car was also shipped by the same vessel. The Supe;i,,tendent, The two petitioners disembarked at Karachi on June Disrric! Jail, 11, 1957, and after brief halt at Karachi, they Amr11sar left together by plane for Bombay and reached Bombay Das C.J. on the same day. The petitioners stayed together at the Ambassador Hotel at Bombay from June 11, 1957, to the afternoon of June 19, 1957. On the last men-tioned date both of them left Bombay by plane and reached Delhi the same evening. They occupied room No. 1 at Janpath Hotel and stayed there from June 19, to June 29, 1957. After the car, which had been booked by rail from Bombay to Delhi, had arrived in Delhi, the two petitioners left Delhi and travelled together in the car from Delhi to Amritsar on June 22, 1957, and after staying the night there, they arrived at Attari Road Land Customs Station on their wny out to Pakistan on June 23, 1957. The Customs officers there required the petitioners to declare in Baggage Declaration Forms supplied to them the articles which they had in their possession, including any goods which were subject to Export Trade Control and/or Foreign Exchange restrictions and/or were dutiable. Each of the petitioners completed his Baggage Declara-tion Form and handed it over to the Customs authori-ties duly signed by him. On that very day the persons of each of the petitioners were also searched and certain currency and movable property which had not been included in the baggage declaration were recover-<!d. Amongst other things, pocket radio and time-piece were recovered from the petitioner Dana and pistol of · 22 bore with 48 live cartridges of the same bore was recovered from the person of the petitioner Frey. Both the petitioners were put under arrest on the same day, namely, June 23, 1957. On June 30, 1957, the petitioners were interrogated and the car was thoroughly searched. As result of such inten-sive search and minute inspection, "a secret chamber above the petrol tank was discovered. On opening the secret chamber, Indian currency to the tune of Rs. 8,50,000 and U.S. dollars amounting to 10,000 were discovered in the concealed recess and seized by the

police. On July 7, 1957, notice was issued to the 1957 petitioner Dana under s. 167(8) of the Sea Customs LeoRoyFrey Act to show cause before the Collector why under Tlte sup:;intendem, that section penalty should not be imposed on him Distric! Jail, · and why the seized articles should not be confiscated. Amritsar similar notice was served on the petitioner Frey, on Das c. J. July 9, 1957. The petitioners made representations in writing and were also heard in person. On July 24, 1957, the Collector of Central Excise and Land Customs made an order for the confiscation of the currency and also of the motor car with an option to the petitioner Dana to redeem the car on payment of Rs. 50,000 and also ordered confiscation of articles other· than the currency recovered from the car sub-ject to redemption on payment of Rs. 100. The Col-1ector was ·also satisfied that each of the two petitioners was equally guilty of an offence under s. 167(8) of the Sea Customs Act and imposed personal penalty of Rs. 25,00,000 on each of the petitioners, to be paid within two months from the date of the order or such extended period as the adjudicating officer might allow.On August 1Z 1957, the Assistant Collector of Cus-toms and Central Excise, Amritsar, lodged complaint against the two petitioners and one Moshe Baruk of Bombay before the Additi .:>nal District Magistrate, Amritsar, under s. 23 read with s. 8 of the Foreign Exchange Regulations Act, 1947 and s. 167 (81) of the Sea Customs Act, 1878, as amended by the Sea Customs (Amendment) Act, 1955. ~ubsequently, fresh complaint was filed by the same Assistant Col-lector of Land Customs and Central Excise against the two petitioners and the said Moshe Baruk before the Additional District Magistrate, Amritsar, under s. 23 read with s. 8 of the Foreign Exchange Regulations Act, 1947, ands. 167(81) of the Sea Customs Act and s. 120-B of the Indian Penal Code, read with s. 23/ 23-B, Foreign Exchange Regulations Act and s. 167 (81 ), Sea Customs Act, 1878. case was also started against the petitioner Frey under the Indian Arms Act for being in possession of the pistol and the cart-ridges in contravention of the provisions of s. 20. of

1957 that Act. He was ordered to be let out on bail in the IAo Roy Frey sum of Rs. 10,000 with one surety in the Arms Act Th• Sup Distr~~' vint fa;,,'" nit 1 'case has concluded case, Vfhich he furnished. The trial of the Arms in the Court of the Additional Act Anvirsar District Magistrate but orders ;ire pending. fhe peti-Das c. J. tioners, Frey and Dana, were directed to be released on bail in the sum of rupees five lakhs and ten lakhs respectively, which were finally reduced by the High Court to rupees two lakhs and five lakhs respectively. Neither of the petitioners could furnish the requisite security and they have, therefore been in judicial custody. They have now come forward with these applications for the reliefs already mentioned. Their main contention, urged before us, is that they have been deprived of their liberty otherwise than in accordance with procedure established by law.

In ordinary circumstances the production of the

order or warrant for the apprehension and detention of an undertrial prisoner would be good return to writ of habeas corpus. But the petitioners contend that in this case there has been violation of their fundamental right under Art. 20(2) of the Constitu-tion. Relying on the observations in the decision of the Calcutta High Court in Assistant Collector v. Soorajmai ('),and in the decision of the Madras High Court in CoHector of Customs v. A.H.A. Rahiman([2]), it is contended that in making the order of confisca-tion and penalty under s. 167(8) of the Sea Customs Act, the Collector was acting judicially and therefore the petitioners have already been proceeded with and punished for the offence of importation and attempted exportation of goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chap. IV of the Sea Customs Act, and consequently they cannot again be prosecuted and punished for the same offence. The argument is that the pending proceedings, before the Additional District Magistrate offend against the protection given to the petitioners by Art. 20(2) of Constitution. That in imposing confiscation and penalties the Collector acts ]udicially has been held by this Cou'rt in its judgment (1) (1952) 56 C.W.N. 452. (') A.l.R. 1957 Mad. 496.pronounced on May 16, 1957, in F. N. Roy v. Col.f,ector 1957 of Customs ( [1]). No question has been raised as to the Le~ Roy Frey maximum amount of penalty that can be imposed The Sup:;intencfenunder s. 167(8) and we are not called upon to express District Jail, any opinion on that point. But the fact that the Col-Amritsar lector of Customs acted judicially is not decisive and Das c. J. does not necessarily attract the protection guaranteed by Art. 20(2) and the question still remains whether the petitioners' case comes within the provisions of Art. 20(2). That article protects person from being '"prosecuted and punished for the same offence more than once". The question has to be answered as to whether the petitioners had previously been prose-cuted and punished for the same offence for which . they are now being prosecuted before the Additional District. Magistrate. The proceedings before the Customs authorities were under s. 167(8) of the Sea Customs Act. Under s. 186 of that Act, the award of any confiscation, penalty or increased' rate of duty under that Act by an officer of Customs does not prevent the infliction of any punishment to which the person affected thereby is liable under any other law. The offences with· which the petitioners are now charged include. an offence under s. 120B, Indian Penal Code. Criminal conspiracy is an offence created and made punishable by the Indian Penal .Code. It is not an offence under the Sea Customs Act. The offence of conspiracy to commit crime is different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the elemerit of conspiracy as one of its ingredients. They are, therefore, quite separate offences .. This is also the view expressed by the United States Supreme Court in United States v. Rabinowich(2). The offence of cri-minal conspiracy was not the subject matter of the pro-ceedings before the Collector of Customs and therefere it canno~ be said that the petitioners have already been prosecuted and punished for the "same offence".

(2) (1915) 238 U.S. 78.

(1) Petition No. 438 of 1955.

1957 It is true that the Collector of Customs has used the Leo Roy Frty words "punishment" and "conspiracy", but those The Supe~inwulent words were used in order to bring out that each of the Dis1ric_1 Jail, 'two petitioners was guilty of the offence under Ammsar s. 167 ( 8) of the Sea Customs Act. The petitioners Das c. J. were not and could never be charged with criminal conspiracy before the Collector of Customs and there-fore Art. 20(2) cannot be invoked. In this view of the matter it is not necessary for us, on the present occa-sion, to refer to the ·case of Maqbool Hussain v. The State of Bombay(') and to discuss whether the words used in Art. 20 do or do not contemplate only proceed-ings of the nature of criminal proceedings before court of law or judicial tribunal as ordinary under-stood. In our opinion, Art. 20 has no application to the facts of the present case. No other points having been urged before us, there applications must be dis-missed.

Applications dismissed.

PARSHOTAM LAL DHINGRA

v. UNION OF INDIA (S. R. Das, C. J., Venkatarama Aiyar, S. K. Das, A. K. SARKAR and V1vrAN BosE JJ.)

Union Service-Employee's protection under the Consti-tution.-Availability-"Dismissed or ·removed or reduced in rank;' Meaning of-Railway Servant reverted to substan-tive post in lower class, if reduced in rank-Constitution of India, Arts. 311, 310.

The appellant, Parshotam Lal Dhingra, was appointed to the Indian Railway Service as Signaller (Telegraphist) in 1924 and was promoted to the post of Chief Controller in 1950, both the posts being in class III Service. On July 2, 1951 he was appointed to officiate in class II SerVice as Asstt. Superintendent Railway Telegraphs. On certain adverse remarks made against him in his Confidential Repo<t for the year ending March 31, 1953, the General Manager on June 21, 1953, remarked as follows-"! am disappointed to read these reports. He should revert as subordinate till he makes good the short-coming noticed in this chance of his as an officer. Portions underlined te be communicated to him." Thereupon the appellant made representation, but on August 19, 1953, the General Manager issued notice (') [19$3] S.C.R. 730.