ASSISTANT COLLECTOR OF CUSTOMS & ANR. versus L. R. MALWANI AND ANR.

AsSISTANT COLLECTOR OF CUSTOMS & ANR.

L. R. MALWANI AND ANR.

October l 6, 1968

[J, C. SHAH, V. R.i\MASWAMI, G. K. MITTER, K. S. HEGDE, AND A. N. GROVER, JJ.j

Constitution of India, Art. 20(2)-Accused given benefit of doubt by customs authority in respect of alleged offence under Sea CustO'ms Act, 1878-Subsequent prosecution before Magistrate in respect of same offence whether barred by nrticle-Principle of issue estoppel whether applies-Delay in filing complaint, effect-Code of Criminal Procedure, ss. 173(4)-Section whether applicable in trial on complaint by cus-toms uuthorities-S. 94(1) whether can be used to secure supply of documents mentioned in s. 173(4) to the accused.

The accused persons were charged with having entered into conspi-racy at Bombay and other places m the beginnmg c.i October 1959 or thereabout for the purposes of smuggling foreign goods into India and having, in purauance of that consplfacy, smuggled several items of foreign goods in the years 1959 and 1960. In that connection an en-quiry was held by the Customs authorities. ln the course of the enquiry some of the goods said to have been smuggled were seized. After the close of the enquiry those, goods were ordered to be confiscated. In addition penalty was imposed on some of the accused. Accused No. 1 and 2 were given by the Collector benefit of doubt on the ground that there was no conclusive evidence against them. Thereafter the Assistant Collector of Customs after obtaining the required sanction of the Government filed complaint against five persons including Accused I and 2 under s. 120-B I.P.C. read with s. 167 of the Sea Customs Act, 1878 as well as under s. 5 .of the Imports and Exports (Control) Act, 1947. Before the commencement of the enquiry the 1st accused filed an application before th~ Magistrate raising therein various questions of law namely {i) whether the prosecution of Accused I and 2 was barred by Art. 20(2) of the Constitution by reason of the decision of the Collector of Customs (ii) whether tl.ie finding of the Collector of Customs ope-rated as an issue estoppel in the criminal case against Accused 1 and 2, (iii) whether the prosecution amounted to an abuse of the process of the Court in view of the inordinate. delay in launching the same, and (iv) whether s. 173(4) Cr. P.C. was applicable to the facts of the case, and (v) whether the documents mentioned in the petition of Accmed No. 1 to the Magistrate could be summoned under s. 94 Cr. P.C. The Magis-trate dismissed the application of Accused No. 1. In revision the High Court, while agreeing with the Magistrate on other issues, did not agree with' him that there was no need at the stage1 to summon the statements of the witness recorded by the customs authorities in the enquiry under the Sea Customs Act. It directed the Magistrate to summon those statements and to see that the prosecution made available copies of these statements to the accused before the commencement of the enQuiry in the case. Against the orders of the High Court the customs authorities as well as the accused appealed to this Court.

HELD : (i) In order to get the benefit of s. 403 Criminal Procedure Code or Art. 20(2) it is necessary for an accused person to establish

that he had been tried by "court of competent jurisdiction" for an offence and he is convicted or acquitted of that offence and the said acquittal is in force. If that much is established, it can be contended that he is not liable to be tried again for any other offence for which different charge from the one made against him might have been rnade under s. 236 or for which he might have been convicted under s. 237. It has been repeatedly held by this Court that adjudicatioµ before Collector of customs is not "prosecution" nor the Collector of customs "Court". Therefore in the present case the plea of the accused based on Art. 2()(2) could not be accepted. [442 B---G]Maqboo/ Hussain v. State of Bombay, [1953] S.C.R. 730 and Thomas Dana v. State of Punjab, [1959] S.C.R. 274, applied.

(ii) Before the accused can call into aid the rule of issue estoppel, he must establish that in previous lawful trial before competent court he has secured verdict of acquittal which verdict is binding on his pro-secutor. In the instant case since the proceeding before the· Collector was not criminal trial it follows that the decision of the Collector did not amount to verdict of acquittal in favour of accused Nos. 1 and 2. [444 A-BJ

Sambasivan v. Public Prosecutor, Federation of Malaya, [1950] A.C. 458 at p. 479, Pritam Singh v. State of Punjab, A.I.R. [1956] S.C. 415 ancl N. R. Ghose @ Nikhil Ranjan Ghose v. State of West Bengal, [1960] 2 S.C.R. 58, applied.

(iii) The question of delay in filing the complaint may be circum-stance to be taken into consideration in arriving at the final verdict. .But by itself it affords no ground for dismissing the complaint. [444 DJ

(iv) Section 173 Criminal Procedure is attracted only in case in-vestigated by police officer under Ch. XIV of the Code followed by final report. Section 173(4) was incorporated into the Code by Cen-tral Act 25 of 1955 because of the changes effected in the mode of trials in cases instituted on police ·reports. Under the new procedure prescribed in s. 251 (A) of the Code, but for the facility provided to him under s. 173 ( 4) an accuse person. would have been greatly handi-capped in his defence. But in case instituted on complaint like the present, and governed by ss. 252 to 259 of the Code no such difficulty arises and the position is as it was before the amendment of the Code in 1955. [444 H; 445 G] The High Court was wrong in holding that the Legislature did not make available the benefit of s. 173 ( 4) Criminal Procedure Code in cases instituted otherwise than on police reports by oversight. It is not proper to- assume except on very good grounds that there is any lacuna in any statute or that the legislature has not done its duty properly. [445 HJ

(y) Section 9'4(1) does not empower Magistrate to direct the pro-secution to gtve copies of any documents to an accused person. It was impermissible for the High Court to read into s. 94 Criminal Procedure Code the requirements of s. 173 ( 4) of the1 Code. The High Court was wrong in indirectly applying to cases instituted on private complaints the requirements of s. 173(4). [446 E-F]

Further the High Court was not justified in interforittg with the dis-cretion of the learned Magistrate. Whether particular document should be summoned or not is essentially in the discretion of the trial court. In the present case the reasons given by the Magistrate for his

order were good reasons. Unnecessary interference with the orders of the ,trial court results in waste of public money and time as had happened in the present case. [447 DI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 15 and 35 of 1967.

Appeals from the judgment and order dated Octob.er 12, 1966 of the Bombay High Court in Criminal Revision Applica-tion No. 289 of 1966.

• (in Cr. A. 35 of 1967) '

N. S. Bindra, R. M. Parikh and S. P. Nayar, for the appellants (in Cr. A. No. 15 of 1967) and the respondents (in Cr. A. No. 35 of 1967).

N. N. Keswani, for the appellants (in Cr. A. No. 35 of 1967) and the respondents (in Cr. A. No. 15 of 1967).

K. R. Chaudhuri, for the intervener (in Cr. A. No. 15 of 1967).

The Judgment of the Court was delivered by

Hegde, 1. These appeals by certificate arise from the decision of the High Court of Bombay in Criminal Revision Application No. 23 8 of 1966 wherein the following questions of law arise for decision :

(i) Whether the prosecution from which thes.e Cri-minal Revision Petitions arose is barred under Art. 20

(2) of the Constitution as against accused Nos. 1 and 2 in that case by reason of the decision of the Collec-tor of Customs in the proceedings under the Sea ·Cus-toms Act?

(ii) Whether under any cucumstance the finding of the Collector of Customs that the 1st and 2nd accus.ed are not proved to be guilty operated as an issue estoppel in the criminal case against those accused? (iii) Whether the present prosecution amounts to an abuse of the process of the Court in view of inordi-nate delay in launching the same and consequently whether it is liable to be quashed ? (iv) Whether s. 173 ( 4), Criminal Procedure Code is applicable to the facts of this case and '(v) Whether the documents mentioned in the peti-• tion filed by the 1st accused on August 3, 196§ are re-quired to be summoned under s. 94, Criminal Proce-H dure Code? The aforementioned questions were raised before the trial ...,.,,. Magistrate by the 1st accused by means of an application but

the learned Magistrate found no substance in the pleas advanced in that app1icat10n and accordingly he dismissed the same as per his order elated 25-1-1966. In revision, Division Bench of the Bombay High Court agreeing with the trial Magistrate negatived all but one of the contentions advanced on behalf of accused Nos. 1 and 2. It did not agree with the learned Magistrate that there was no need, at that stage to summon the statements of witnesses recorded by the Customs authorities in the enquiry under the Customs Act. It directed the learned Magistrate to summon those statements and curiously enough, it went further and directed him to see that the prosec.ution made available the copies of those statements to the accused before the commence-ment of the enquiry in the case. In so far as the other docu-ments called for are concerned, the High Court after indicating, what according to it, is the Jaw on the subject left the matter to the discretion of the learned Magistrate. Criminal Appeal No. 15 of 1967 is filed by the Assistant Collector of Customs, Bombay and the State of Maharashtra and Criminal Appeal No. 35 of 1967 is the appeal filed by accused Nos. 1 and 2 in the case (Case No. 98 of 1965 in the Court of the Chief Presidency Magistrate, Bombay). The appellants in Criminal Appeal No. 15 of 1967 challenge the correctness of the decision of the Bombay High Court in so far as it went against them and the appellants in Criminal Appeal No. 35 of 1967 challenge that decision in other respects.

The prosecution case is that the accused persons and some other unknown persons had entered into conspiracy at Bombay and other places in the beginning of October, 1959 or thereabout for the purpose of smuggling foreign goods into India and in pursu-ance of that conspiracy they had smuggled several items of foreign goods in the years 1959 and 1960.

In that connection an enquiry was held by the Customs autho-rities. In the course of the enquiry some of the goods said to have been smuggled were seized. After the close of the enquiry those goods were ordered to be confiscated. In addition penalty was imposed on some of the accused. Thereafter on February 19, 1965, the Assistant Collector of Customs Bombay after ob-tain_ing the required s.anctio_n of the Governme~t filed complaint agamst ·five persons mcludmg the appellants rn Criminal Appeal No. 35 of 1967 (accused Nos. 1 and 2 in the case) under s. 120-B, I.P.C. read with els. (37), (75), (76) and (81) of s. 167 of the Sea Customs Act, 1878 (Act VIII of 1878) as well as under s. 5 of the Imports and Exports (Control) Act 19~7. Before the commencement of the enquiry in that com~ plam!, the 1st accused filed on August 3, 1965, the application mentiOned above. 3Sup.C.I.J69-ll

Now we shall proceed to examine the contentions set out earlier.

Reliance on Art. 20 ( 2) is placed under the following . cir-cumstances. In the enquiry held by the Collector of Customs, he gave the benefit of doubt to accused Nos. 1 and 2. This is what he stated therein : "As regards M/ s. Larmel Enterprises (of which accused No. 1 is the proprretor and accused No. 2 is the Manager) although it is apparent that they have directly assisted the importers in their illegal activities and are morally guilty. Since there is no conclusive evidence against them to hold them as persons concern-ed in the act of unauthorised importation, they escape on benefit of doubt."

This is

Despite this finding the Assistant Collector in his complaint referred to earlier seeks to prosecute these accused persons. Hence the question is whether that prosecution is barred under Art. 20(2) of the Constitution which says that no person shall be prosecuted and punished for the same offence more than once. This Art. has no direct bearing on the question at issue. Eve-dently those accused persons want to spell out from this Art. the rule of autrefois acquit embodied in s. 403, Criminal Procedure Code. Assuming we can do that still it is not possible to hold that proceeding before the Collector of Customs is prosecu-tion for an offence. In .order to get the benefit of s. 403, Criminal Procedure Code or Art. 20 ( 2), it is necessary for an accused person to establish that he had been tried by "court of compe-tent jurisdiction" for an offence and he is convicted or acquitted of that offence and the said conviction or acquittal is in force. If that much is established, it can be contended that he is not liable to be triecl again for the same offence nor on the same facts for any other offence for which different charge from the one made against him might have been made under s. 236 or for which he might have been convicted under s. 23 7. It has been repeatedly held by this Court that adjudication before Collector of Customs is not "prosecution" nor the Collector of Customs '.'Court". ln·Maqbool Hussain v. The State of Bombay('), this Court held that the wording of Art. 20 of the Constitution and the words used therein show that the proceedings ·therein contemplated are proceedings ~f t~~ nat1:1re of criminal proceed-mgs before· court of law or iud1c1al tnbunal and "prosecution" in. this cont.ex~ would mean an initiation or starting of proceed-mgs of crurunal nature before court of law or judicial tribu-nal in accordance with the procedure prescribed in the statute

(l) [1953] S.C.R. 730.

which creates the offence and regulates the procedure. This Court further held that where person against whom proceed-ings had 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 criminal court for an offence under s. 23 of the Foreign Exchange Regula-B tion Act in respect of the same act, the proceeding before the Sea Customs authorities was not "prosecution" and the order for confiscation was not "punishment" inflicted by Court or judicial tribunal within the meaning of Art. 20(2) of the Consti-tntion and hence his subsequent prosecution was not barred. The said rule was reiterated in Thomas Dana v. State of Punjab(') and in several other cases.

We shall not take up the contention that the finding of the Collector of Customs referred to earlier operated as an issue es-toppel in the present prosecution. The issue estoppel rule is but facet of the doctrine of autrefois acquit. In Sambasivan v. Public Prosecutor, Federation of Malaya([2]), Lord MacDermott enunciated the said rule thus :

"The effect of verdict of acquittal pronounced by competent court on lawful charge and after law-ful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim "Res judicata pro veritate accipitur" is no Jess appli-cable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the pro-secution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not con-clusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other."

The rule laid down in that decision was adopted by this Court in Pritam Singh v. State of Punjab([8 ]) and again in N.R . Ghose alias Nikhil Ranjan Ghose v. State of West Bengal(').

But before an accused can call into aid the above rule, he must establish that in previous lawful trial before competent court, he has secured verdict of acquittal which verdict is binding on his prosecutor. In the instant case for the reasons already men-tioned, we are unable to hold that the proceeding before the Col-lector of Oustoms is criminal trial. From this it follows that the decision of the Collector does not amount to verdict of ac-quittal in favour of accused Nos. 1 and 2.

This takes us to the contention whether the prosecution must be quashed because of the delay in instituting the same. It is urged on behalf of the accused that because of the delay in launch-ing the same, the present prosecution amounts to an abuse of the process of the Court. The High Court has repelled that con-tention. It has come to the conclusion that the delay in filing the complaint is satisfactorily explained. That apart, it is not the case of the accused that any period of limitation is prescribed for filing the complaint. Hence the court before which the com-plaint was filed could not have thrown out the same on the sole ground that there has been delay in filing it. The question of delay in filing complaint may be circumstance to be taken into consideration in arriving at the final verdict. But by itself it affords no ground for dismissing the complaint. Hence we see no substance in the contention that the prosecution should be quashed on the ground that there was delay in instituting the complaint.

We also see no merit in the contention that the accused in this case are entitled to the benefit of s. 173 ( 4), Criminal Pro-cedure Code which provides that before the commencement of the enquiry or trial the officer-in-charge of the police station who forwards report under s. 173, Criminal Procedure Code, should furnish or cause to be furnished to the accused, free of cost, copy of the report forwarded under s. 17 3 (1 ) , Criminal Proce-dure Code of the first information report recorded under s. 154, Criminal Procedure Code and all other documents or relevant ex-tracts thereof on which the prosecution proposes to rely, includ-ing the statements and confessions, if any, recorded under s. 164, Criminal. Procedure Code and the statements recorded ·under s. 161, Criminal Procedure Code of all the persons whom the prosecution proposes to examine as its witnesses.

On plain reading of s. 173, Criminal Procedure Code, it is clear that the same is wholly inapplicable to the facts of the pre-· sent case. In the instant case no report had been sent under s. 173, Criminal Procedure Code. Therefore that provision is not attracted. That provision is attracted only in case investi-gated by police officer under Chapter XIV of the Criminal Pro-cedure Code, followed up by final report under s. 173, Crimi-nal Procedure Code. It may be remembered that sub-s. ( 4) of

s. 173, was incorporated into the Criminal Procedure Code for the first time by Central Act 26 of 195.5, P!esumabl:y b~cause of the changes effected in the mode of trials m cases mstttuted on police reports. Before the Criminal Procedure Code was amend-ed by Act 26 of 1955, th~re .was no diffe!ence in the PI"?cedure to be adopted in the cases mst1tuted on pohce reports and m other cases. Till then in all cases irrespective of the fact whether they were instituted on police reports or on private complaints, the procedure regarding enquiries or trials was identical. In both type of cases, there were two distinct sta&es i.e., the enquiry stage and the trial stage. When the prosecut10n witnesses were ex-amined in case before charge is framed, it was open to the. accused to cross-examine them. Hence there was no need for making available to the accused the documents mentioned in sub-s. ( 4) of s. 173, Criminal Procedure Code. The right given to him under s. 162, Criminal Procedure Code was thought to be sufficient to safeguard bis interest. But Act 26 of 1955 as men-tioned earlier made substantial changes in the procedure to be adopted in the matter of enquiry in cases instituted on police re-ports. That procedure is now set out in s. 251 (A), Criminal Procedure Code. This new procedure truncated the enquiry stage. Section 251 (A), Criminal Procedure Code says that the Magistrate, if upon consideration of all the documents referred to in s. 173 and making such examination if any, of the accused as be thinks necessary and after giving the prosecution and the accused an opportunity of being beard considers the charge against the accused to be groundless he shall discharge him but if he is of opinion that there is· ground for presuming that the ac-cused has committed an offence triable as warrant case which he is competent to try and which in his opinion could be ade-quately puinshed by him, he shall frame in writing charge against him. Under the procedure pn~scribed in s. 251(A), Cri-minal Procedure Code but for the facility provided to him under s. 173 ( 4) of that Code an accused person would have been greatly handicapped in bis defence. But in case instituted on complaint, like the one before us and governed by ss. 252 to 259 of the Criminal Procedure Code, no such difficulty arises. There-in the position is as it was before the amendment of the Crimi-nal Procedure Code in 19 5 5.

We ard. unable to agree with the learned Judges of the High Court that the legislature did not make available the benefit of s. 173 ( 4), Criminal Procedure Code in cases instituted other-wise than on police reports by oversight. The observations of the learned Judges in the course of their judgment that "Evett the great Homer occasionally nods. There is nothing to show that the legislature has applied its mind to the question of the amend-ment of the procedure so far :is the investigation of an offence

under the Sea Customs Act is concerned at the time when it was considering amendments to the Criminal Procedure Code" is without any basis. In the first place, it is not proper to assume except on very good grounds that there is any lacuna in any statute or that the legislature has not done its duty properly. Secondly from the history of the legislation to which reference has been made earlief, the reason for introducing s. 173 ( 4) is clear. The learned judges of the High Court were constrained to hold that s. 173 ( 4), Criminal Procedure Code in terms does not apply to the present case. But strangely enough that even after coming to the conclusion that provision is inapplicable to the facts of the present case, they have directed the learned Magistrate to require the prosecution to make available to the accused, the copies CJf the statements recorded from the prosecution witnesses during the enquiry under the Customs Act. They have purported to make that order under s. 94 ( 1), Criminal Procedure Code which to the extent material for our present purpose reads :

"Whenever any Court ... ·'· . . . . . considers that production of any document or other thing is neces-sary or desirable for the purposes of any . . . . . . en-quiry, trial or other proceeding under this Code by or before such Court . . . . . . such Court may issue summons . . . . . . to the person in whose possession and power such document or thing is believed to be, requir-ing him to attend and produce it. or to produce it, at the time and place stated in the summons or order."

This section does not empower Magistrate to direct the prose-cution to give copies of anv documents to an accused person. That much apoears to be plain from the language of that section. It was impermissible for the High Court to read into s. 94, Cri-minal Procedure Code the requirements of s. 173 ( 4), Criminal Procedure Code. The High Court was not justified, in indirectly applying to cases instituted on private comolaints the require-ments of s. 173 ( 4), Criminal Procedure Code.

That apart we do not think that the High Court was justified in interfering with the discretion of the learned Magistrate. Whether oarticular document should be summoned or not is essentially in the discretion of the trial court. In the instant case the Soecial Public Prosecutor had assured the learned trial Magistrate that he would keep in readiness the statements of v..it-nesses recorded bv the Customs authorities and shall make avail-. able to the defence Counsel the statement of the concerned wit-ness as and when he is examined. Iii view of that assurance, the learned Magistrate observed in his order :

"The recording of the prosecution evidence is yet con:unence in this case and at present there are no mate>

ASSTT. COLLECTOR CUSTOMS v. MALWANI (Hegde, !.)

rials before me to decide whether or not the production of any of the statements and documents named by the accused in his application is desirable or necessary for the purpose of the enquiry or trial. As stated at the out-set, the learned Special Prosecutor has given an under-taking that he would produce all the relevant state-ments and documents at the proper time in the course of the hearing of the case. The request made for the issue of the summons under s. 94, Criminal Procedure Code is also omnibus."The reasons given by the learned Magistrate in support of his order are good reasons. The High Court has .not come to the conclusion that the documents in question, if not produced in court are likely to be destroyed or tampered with or the same are not likely to be made available when required. It has pro-ceeded on the erroneous basis that the accused will not have fair trial unless they are supplied with the copies of those state-ments even before the enquiry commences. Except for very good reasons, the High Court should not interfere with the discretion conferred on the trial courts in the matter of summoning docu-ments. Such interferences would unnecessarily impede the prog-ress of cases and result in waste of public money and time as has happened in this case.

For the reasons mentioned above, we allow Criminal Appeal No. 15 of 1967 and dismiss Crimina1 Appeal No. 35 of 1967. In other words, we restore the order of the learned Magistrate.

Criminal Appeal No. 15 of 1967 allowed. Criminal Appeal No. 35 of 1967 dismissed .