LexASSISTANT COLLECTOR OF CUSTOMS & ANR. versus L. R. MALWANI AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
AsSISTANT COLLECTOR OF CUSTOMS & ANR.
v.
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 a 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 a 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 a
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
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ASSTT. COLLECTOR CUSTOMS v. MALWANl
439
that he had been tried by a "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 a
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 a
Collector of customs is not a "prosecution" nor the Collector of customs
a "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 a previous lawful trial before a competent court
C
he has secured a verdict of acquittal which verdict is binding on his pro-
secutor.
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