ORDER M. Murtaza Husain, J.
1. This revision is directed against the appellate order dated 9-1-1978 passed by the 1st Addl. Sessions Judge, Baharaich whereby he upheld revisionist's conviction under Section 135(b) of the Customs Act, 1962 and Section 85 of Gold (Control) Act, 1968 ordered by the C.J.M., Baharaich. The learned Chief Judicial Magistrate had awarded one year's Rule I, to the revisionist on each count. While maintaining his conviction for those offences, the learned 1st Addl. Sessions Judge reduced the revisionist's sentence of one year's Rule I. on each count to six months' R. I.
2. The case under revision arose on the basis of a complaint dated 3-9-73 filed by the respondent against the revisionist in the Court of C.J.M. Baharaich alleging that at 1 p.m. on 16-10-70 in Hanuman Gali in the Bazar of Bahraich the respondent was found to be in possession of a piece of foreign gold, bearing No. 9990 and weighing 114.700 gms., which was primary gold and which could not be legally kept by the respondent in his possession. It was also mentioned in the complaint that departmental proceedings under Sections 111 and 112 of the Customs Act, and Section 74 of the Gold (Control) Act, 1968 were taken against the revisionist by the prescribed authority and the recovered gold was confiscated in favour of the Government and a penalty of Rs. 250 was awarded to him under Section 112 of the Customs Act and also under Section 74 of the Gold (Control) Act. The learned Chief Judicial Magistrate framed charges under Section 85 of Gold (Control) Act and Section 135(b) of the Customs Act against the revisionist. He pleaded not guilty to the charges. The learned C.J.M. believed the prosecution evidence and convicted and sentenced the revisionist as aforesaid. His appeal was dismissed by the learned Sessions Judge though modification in his two sentences was ordered as already indicated above.
3. The concurrent finding of fact given by the two courts below is that at the alleged time and place the revisionist was found in unauthorised possession of foreign and primary gold weighing 114.700 gms. This finding is based upon the testimony of S. B. Saxena, Central Excise Inspector P. W. 1 and Ram Dularey P. W. 2. The Courts below have believed those witnesses and there is no good ground for this Court, while sitting in revision, to disagree with the appreciation of evidence done by those courts. I, therefore, uphold the said finding of fact. On the basis of that finding the revisionist has been rightly convicted under Section 135(b) of Customs Act as he had acquired possession of foreign gold presumably through smuggling, and also under Section 85 of the Gold (Control) Act as he was in unauthorised possession of primary gold. The conviction of the revisionist for those two offences is thus well merited.
4. It has been argued on behalf of the revisionist that because the entire gold recovered from revisionist's possession has already been confiscated, under Section 111 of the Customs Act and penalty has also been imposed upon him under Section 112 of that Act and under Section 74 of Gold (Control) Act so the revisionist's prosecution in the present case was hit by the rule of double jeopardy and was barred by Article 20(2) of the Indian Constitution and Section 26 of the General Clauses Act.
5. Article 20(2) of the Constitution lays down that-
(2) No person shall be prosecuted and punished for the same offence more than once.
While interpreting the implication of that Article it has been laid down by the Supreme Court in Maqbool Hussain v. State of Bombay and S.A. Vankataraman v. Union of India that:
The ambit and contents of the guarantee of the fundamental right given in Article 20(2) are much narrower than those of the common law rule in England or the doctrine of "Double jeopardy" in the American Constitution. Article 20(2) of the Constitution of India does not contain the principle of "autrefois acquit". In order to enable a citizen to invoke the protection of Clause (2) of Article 20 of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words "prosecuted and punished" are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted.
It was further observed in that authority that:
The language of Article 20 and the words actually used in Article 20(2) afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding, before a court of law or judicial tribunal, and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute, but which is not required by law to try a matter judicially and on legal evidence.
It is thus obvious that in order to attract the bar imposed by Article 20(2) of the Constitution to prosecution and punishment, there must be evidence that the first prosecution and punishment was by a judicial tribunal in a criminal proceeding.
6. In Maqbool Husain's case (supra) the penalty imposed by Sea Customs Authorities through confiscation or imposition of increased rate of duty or penalty was not considered to operate as a bar for the prosecution of the person concerned under Section 23 of Foreign Exchange Regulation Act. Similarly in S.A. Venkataraman's case 1954 Cri. LJ 993 (SC) (supra) penalty earlier imposed upon the accused under the Public Servants Inquiries Act was held not to operate as a bar for his prosecution under the Prevention of Corruption Act in a competent criminal court.
7. In Zamir Ahmad v. State 1968 All WR (HC) 452 the order of confiscation and imposition of penalty passed by the excise authorities under Section 33 of the Central Excises & Salt Act was not considered to be a bar for the prosecution of the accused under Section 9 of the Act.
8. Again in Gopi Nath v. State 1979 Cri LJ 414 : 1979 All LJ 159 earlier prosecution of the accused under Section 16 of Prevention of Food Adulteration Act was held not to stand in the way of the prosecution for prosecuting him under Section 353, I.P.C.
9. Section 127 of the Customs Act, and Section 77 of Gold (Control) Act specifically lay down that proceedings of confiscation of property and imposition of penalty upon any person by the prescribed authorities under the provisions of those Acts could not prevent infliction of any other punishment to which the person affected thereby was liable under the penal provisions of those Acts. Apparently, therefore, the confiscation of gold recovered from the revisionist's possession and imposition of penalty upon him by the Customs and Excise Authorities under Section 112, Customs Act and Section 74 Gold (Control) Act cannot be said to operate as a bar under Article 20(2) of the Constitution for the purposes of his prosecution and conviction under other penal provisions of these Acts.
10. Section 26 of the General Clauses Act runs as follows:
Where an act or omission constituted an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
This section again bars second trial of an accused person if he has already been prosecuted and punished for the same offence by a competent court. The confiscation of the recovered gold and imposition of penalty upon the revisionist by the customs and excise authorities under the provisions of Customs Act and the Gold (Control) Act being not in the nature of criminal proceedings amounting to prosecution, and conviction, the bar imposed by Section 26 of the General Clauses Act could not apply to the revisionist's present prosecution. I am, therefore, of the opinion that the prosecution of the revisionist in the present case was neither barred by Article 20(2) of the Constitution, nor by Section 26 of the General Clauses Act. On facts also his conviction ordered by the courts below is fully justified.
11. Considering, however, the circumstance that the occurrence took place in the year 1970 i.e., about ten years back and the entire gold recovered from revisionist's possession has been confiscated, whose present value runs in thousands of rupees, and penalty of Rs. 250 has already been imposed upon him by the prescribed authority each under Section 112 Customs Act and Section 74, Gold (Control) Act, I do not think that the revisionist should be sent to jail. A fine of Rs. 200 on each of the two counts would in my opinion, be adequate punishment for him.
12. This revision is consequently dismissed and the conviction of the revisionist ordered for the two offences referred to above by the courts below is upheld. The sentence of six months' R.I. awarded to him by the lower appellate court on each count is set aside, and in lieu thereof a fine of Rs. 200 is imposed upon the revisionist on each count. He is given four months' time with effect from today to pay the said amount of fine which shall be received by the C.J.M. concerned as soon as it is tendered before him along with a certified copy of this order. In default of payment of the aforesaid amount of fine the revisionist shall undergo R. I. for six months on each count, which two sentences shall run concurrently. The revisionist is on bail. He need not surrender. His bail bonds are discharged.