V.K. AGARWAL, ASSISTANT COLLECTOR OF CUSTOMS versus VASANTRAJ BHAGWANJI BHATIA & ORS.

Citation: [1988] 3 S.C.R. 450 · Decided: 07-04-1988 · Supreme Court of India · Bench: M.P. THAKKAR · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
V.K. AGARWAL, ASSISTANT COLLECTOR OF CUSTOMS 
v. 
VASANTRAJ BHAGWANJI BHATIA & ORS. 
APRIL 7, 1988 
[M.P. THAKKAR AND K.N. SINGH, JJ.J 
Gold (Control) Act, 1968-Whether acquittal of a person charged 
with offence under section 111 read with section 135 of Customs Act, 
1969, creates a legal bar against his prosecution under section 85 of-
On the basis of same material and facts of offence under Customs Act. 
Respondents 1 to 3 were prosecuted for an offence punishable 
under section 111 read with section 135 of the Customs Act, 1969, on 
the basis of recovery of primary gold from their house. Respondent No. 
3 was convicted and respondents Nos. 1 & 2 were acquitted. Later, the 
same persons were sought to be prosecuted under section 85 of the Gold 
D (Control) Act, 1968 relying on the find of the primary gold from the 
very same premises at the time and on the occasion of the same raid at 
the house of the said respondents, which had given rise to the prosecu-
tion under the Customs Act, as stated above. The respondents 1 to 3 
contended that the new trial was barred. The trial Magistrate accepted 
this plea and ordered the prosecution to be dropped. The Sessions 
E Judge confirmed the order of the trial court. The High Court affirmed 
the decision of the Courts below, holding that the trial was barred by 
virtue of section 403 (1) of the Code of Criminal Procedure, 1898 (Cr. 
P.C.). The State then approached this Court by this appeal. 
F 
Allowing the appeal in part, the Court, 
HELD: The ingredients required to be established in respect of 
an offence under the Customs Act are altogether different from the .ones 
required to be established for an offence under the Gold (Control) Act. 
In respect of the former, the prosecution has to establish that there was 
a prohibition against the import into Indian sea waters of goods which 
G 
were found to he in the possession of the offender. In respect of the 
offence under the Gold (Control) Act, it is required to he established 
that the offender was in possession of primary gold. In regard to the 
latter offence, it is not necessary to establish that there is any prohibi-
tion against the import of gold. Mere possession of gold of purity not 
less than 9 carats in any unfinished or semi-finished form would be an 
H offence under the Gold Control Act. [454F-H; 455AI 
450 
V.K. AGARWAL v. V.B. BHATIA 
451 
fl >' 
The respondents were tried and acquitted for the offence under 
the Customs Act in connection ·with the possession of gold. Their trial 
A 
won Id be barred by section 403(1) of the Code of Criminal Procedure, 
provided they are sought to be prosecuted on the "same facts" for any 
offence for which a different charge from the one made against them 
might have been made under Section 236 and for which they might have 
} j. 
been convicted under Section 237, Criminal Procedure Code. [455D-E] 
B 
In order to establish their plea of bar under Section 403(1), the 
respondents have to establish that (I) there must have been a 'doubt' as 
to whether the offence nnder the 'Customs Act' could be .proved or 
't 
whether the offence under the 'Gold (Control) Act' would be proved 
• .c and (2) that in the context of this doubt an alternative charge could have c 
' 
been framed under Section 236. [ 456C] 
On a true interpretation of Section 236, it would appear that the 
Section would be attracted where the offence would fall either under 
one or the other of the two alternative charges. It would not be attracted D 
If an offence could fall under both of the alternative charges. What Is 
contemplated by section 236 is framing of an alternative charge where 
on the facts of the case an offence would fall under one of the two 
~ 
alternative charges, bot the act would not constitute an offence under 
both the charges. This point is made clear by the Illustrations to Section 
236. In this case, the respondents could be found guilty of both the 
E 
offences in the context oflhe possession of gold. If it is established that 
there was a prohibition against the import of gold and that the respon-
dents were found in possession of gold which they knew or had reason to 
~· 
believe was liable to be conf1SCated, they would be guilty of that off-
ence. They would also be guilty of an offence under the Gold (Control) 
Act, provided the gold was of a purity of at least 9 carats. they would 
F 
have violated the provisions of 'both' the Customs Act and the Gold 
(Control) Act if t

Excerpt shown. Read the full judgment & AI analysis in Lexace.