Holding

Acquittal under the Customs Act does not bar prosecution under the Gold (Control) Act because the two offences have different statutory ingredients, and Section 403(2) of the CrPC permits trial for a distinct offence.

Summary

The State prosecuted Vasantraj Bhagwanji Bhatia and others for possession of primary gold under the Customs Act, 1969 (Sec. 111 read with Sec. 135); one respondent was convicted and two were acquitted. The same authorities later sought to prosecute the three respondents under the Gold (Control) Act, 1968 (Sec. 85) for possession of gold of at least 9 carats, relying on the same seizure. The trial magistrate and Sessions Judge dismissed the second prosecution, holding that Section 403(1) of the CrPC barred a subsequent trial on the same facts, a view affirmed by the Gujarat High Court. On appeal, the Supreme Court examined the ingredients of the two offences and held that they are distinct – the Customs offence requires proof of a prohibition on import, whereas the Gold Control offence requires only possession of gold of a certain purity, with no import prohibition needed. Consequently, Section 403(1) does not apply; instead Section 403(2) permits prosecution for a distinct offence, and the High Court's decision was reversed. The appeal was allowed, allowing the State to proceed with the prosecution under the Gold (Control) Act.

Issues considered

Whether an acquittal under section 111 read with section 135 of the Customs Act, 1969 bars a subsequent prosecution under section 85 of the Gold (Control) Act, 1968 on the same facts.
Whether the two offences constitute the same offence for the purpose of Section 403(1) of the Code of Criminal Procedure, 1898.
Whether Section 236 CrPC, dealing with alternative charges, is attracted in the present facts.

Legislation cited

Code of Criminal Procedure, 1898s. 236, s. 237, s. 403(1), s. 403(2)
Constitution of Indias. Article 20(2)
Customs Act, 1969s. 111, s. 135
General Clauses Act, 1897s. 26
Gold (Control) Act, 1968s. 85

Subjects

double jeopardySection 403 CrPCdistinct offencesCustoms ActGold Control Actacquittalalternative chargeSection 236 CrPCSection 237 CrPCArticle 20(2) ConstitutionGeneral Clauses Act

Judgment

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

APRIL 7, 1988

B [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.
c 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.

Allowing the appeal in part, the Court,
F
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
A
the Customs Act in connection ·with the possession of gold. Their trial
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
whether the offence under the 'Gold (Control) Act' would be proved
't
'
• .c
and (2) that in the context of this doubt an alternative charge could have
been framed under Section 236. [456C]
c

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 the aforesaid ingredients were established. It is not as if
in case they were found guilty of an offence under the Customs Act,
they could not have been found guilty under the Gold (Control) Act or
vice versa. Upon being found guilty of both the offences, the Court may
impose a concurrent sentence in respect of both the offences or the G
~ sentences could be ordered to run consecutively. There was, therefore,
no question of the framing of an alternative charge--0ne under the
Customs Act and the other, under the Gold (Control) Act. If the ingre-
dients of both the offences are satisfied, the same act of possession of
gold would constitute an offence both under the Customs Act and also
under Gold (Control) Act. It could not, therefore, be said that they H
452 SUPREME COURT REPORTS I 1988] 3 S.C.R.

A could have been tried on the same facts for an alternative charge in
the context of section 236 Cr. P.C. at the time of the former pro-
ceedings. The submission urged in the context of Section 403(1) could
not succeed. [456C-H; 457D-F]

B A separate charge could have been framed in respect of the dis-
tinct offence under the Gold Control Act. The conclusions reached by
the Court brought the matter squarely within the parameters of the law
settled by this Court in the State of Bombay v. S.L. Apte & Anr., [1961]
3 S.C.R. 107. [459A-B] -
C Section 403(1) does not come to the rescue of the respondents I to ~- •
3; section 403(2) of the Code clearly concludes the matter against them. \
The High Court was in error in holding that the subsequent trial was
barred. The appeal was accepted on this point and the decision of the
Courts below and the High Court was reversed. That 20 years has
elapsed since the date of the seizure was no ground for not proceeding
D further with the matter as the offence in question was a serious
economic offence which undermines the entire economy of the Nation.
But the Sessions Judge had quashed the proceedings not only on this
ground but also on the basis of certain factual findings which counsel
for the appellant himself found difficult to assail at this juncture. The
operative order of the High Court could not, therefore, be disturbed in ~
E the peculiar facts and circumstances of the case. The finding of the
lower courts and the High Court was reversed on the question of
maintainability of the subsequent prosecution but no further order
could be passed in the circumstances. [460A-F]

/
F Maqbool Hussain v. State of Bombay & Ors. etc., [1953] SCR
Vol. IV P-730; State of Bombay v. S.L. Apte & Anr., [1961] 3 S.C.R. p.
107, referred to.
r
\

CRIMINAL APPELLATE JURISDICTION: Crimina!Appeal
No. 169 of 1978.
G
From the Judgment and Order dated 10.11.1975 of the Gujarat
High Court in Criminal Revision Application No. 273 of 1975.
"
\
V.C. Mahajan, Mrs. Indira Sawhney and Miss. A. Subhashini
H for the Appellants.
V.K. AGARWAL v. V.B. BHATIA [THAKKAR, J.) 453

G .A. Shah, Anil K. Naurya, K.L. Hathi Miss Madhu Mool· A
chandani, Vimal Dave and M.N. Shroff for the Respondents.

The Judgment of the Court was delivered by

THAKKAR, J. Does the acquittal of an accused charged with
B
}~ having committed an offence punishable under Section 111 read with
Section 135 of the Customs Act, 1969 create a legal bar to the said
accused subsequently being prosecuted under Section 85 of the Gold
- (Control) Act, 1968? The High Court having answered this question
(in the affirmative) against the prosecution and having directed the
. dropping of the subsequent proceedings on the premises that the
-l .. acquittal in the former proceedings operated as a legal bar to the c
~· ,.. prosecution of the accused in the latter proceedings, the State has
approached this Court by way of the present appeal. By certificate
under Article 134(i)(c) of the Constitution of India.

Respondents 1 to 3 came to be prosecuted as a result of a raid at D
their house in which primary gold valued at Rs.84,770 at the material
time was found along with some other articles. They were prosecuted
for an offence punishable under section 111 read with Section 135 of
the Customs Act, 1969. In that case present respondent No. 3 was
convicted whereas present respondent Nos. 1 and 2 were acquitted.
The same alleged offenders were later on sought to be prosecuted E
under Section 85 of the Gold (Control) Act, 1968 relying on the find of
primary gold from the very same premises at the time and on the
occasion of the very same raid which gave rise to the prosecution under
the Customs Act which had culminated in the conviction of respondent
No. 3 and the acquittal of respondents 1 and 2. A contention was
thereupon raised on behalf of respondents I to 3 that the new trial was F
barred. The Chief Judicial Magistrate accepted this plea and ordered
that the prosecution be dropped. The learned Sessions Judge con-
firmed the said order. The appellant challenged the order passed by
the learned trial Magistrate as confirmed by the learned Sessions
Judge by way of a Revision Appl_ication Criminal Revision Application
No. 273 of 1975 to the High Court. The High Court affirmed the G
decision of the Courts below holding that the present trial was barred
by virtue of Section 403(1) of the Code of Criminal Procedure, 1898
(Cr. P.C.). Hence this appeal. In order to determine this question it is
necessary to identify the ingredients which will have to be established
by the prosecution in order to bring home the guilt under the different
provisions. These ingredients may be catalogued as under: H
454 SUPREME COURT REPORTS I 1988] 3 S.C.R.

A Ingredients of the charge Ingredients of the charge
for the offence under for the offence under Sec.
Section 111 read with Sec. 85 of the Gold (Control)
135 of the Customs Act, 1969 Act, 1968 for which the
in respect of which the respondents are sought
respondents were acquitted. to be prosecuted.
B
i) Inter alia being in posses- The offender owns or has in
sion of or being concerned in his possession, custody, or
keeping or concealing of
goods which the offender
control any primary gold of
not less than 9 carats in
-
knows or has reason to purity in unfinished or
believe are liable to semi-finished from or in
c confiscation under blocks, bars etc.
Section 111.

ii) The goods in question, gold,
was imported within the
D Indian Customs waters
contrary to a prohibition
contained under the Customs
Act.

iii) There was a prohibition
E in respect of the import
of gold at the material
time as contemplated by
Sec. 111-D of the Customs
Act.

F It is therefore evident that the ingredients required to be
established in respect of the 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 were found to be in the
G possession of the offender. On the other hand in respect of the offence
under the Gold (Control) Act, it is required to be established that the
offender was in possession of primary gold meaning !hereby gold of a
purity of not less than 9 carats in any unfinished or semi-finished form.
In regard to the latter offence it is not necessary to establish that there
is any prohibition against the import of gold into Indian sea waters.
ti Mere ,possession of gold of purity not less than 9 carats in any
V.K. AGARWAL v. V.B. BHATIA [THAKKAR, J.J 455

unfinished or semi-finished form would be an offence under the Gold A
Control Act. It is therefore stating the obvious to say that the ingre-
dients of the two offences are altogether different. Such being the case
the question arises whether the acquittal .for the offences under "the
Cust")ms Act which requires the prosecution to establish altogether
different ingredients operates as a bar to the prosecution of the same
person in connection with the charge of having committed the offence B
) under the Gold (Control) Act.
Reliance has been placed on Section 403(1) 1 of the Code of
Criminal Procedure, 1898 (Cr. P.C.) in support of the plea that the
rosecution. under ~he Gold (Control) Act would be barred on the
basis of the undermentioned facts: · '
('.
~ · i) that the respondents had been tried by a competent Co~rt for C
the offence of being in possession of gold under the Customs
Act and had been acquitted; ·
ii) they are sought to be prosecuted on the same facts for an
offence under the Gold (Control) Act.
D
It is not in dispute that the respondents were tried and acquitted for
the offence under the Customs Act in connection with the possession
of a quantity of gold. Their trial would be barred by Section 403(1)
provided they are sought to be prosecuted on "same facts" .for any
offence for which a different charge from the one made against them
might have been made under-Section 236 1 and for which they might E
have been convicted under Section 2372 ·

1. 0 Section 403(1): A pe.r.son who has once been tried by a Court of competent jurisd-
iction for an offence and convicted or acquitted of such offence shall, while such
conviction or acquittal remains in force, not be liable to bC tried again for the same
offence, nor on the same facts for any other offence for which a different-charge from
the one made against him might have been made under Section 236, or for which be F
'might have been convicted under section 237". -
1. ''236. If a single act Or series of acts is of such a nature that it is do~btful which of
several offefices of. the facts which can be proved will constitute the accused may be
charged with having committed all or any of such offences, and any number of such
charges may be tried at once; or he may be charged in the alternative with having
committed some one of the said offences. · '
Illustrations G
(a) xxxx
(b) xxxx".
2. "'237. (1) If in the Case mentioned in section 236, the accused is charged .with one
offence, and it appears in evidence that be committed a different offence for which
he might have been charged under the provisions of that section, he may be con·
victed of the offence which he is shown to have committed, although he was not H
charged with it."
r
•i ..
456 SUPREME COURT REPORTS I 1988] 3 S.C.R.
'( .....
In order to successfully establish their plea of bar under Section
A
403(1) the concerned respondents will therefore have to establish that:

i) It was doubtful as to which of the several offences the facts
whkh could be proved by the prosecution would constitute.

B ii) And they could have been charged in the alternative with
having committed one or other of the said offences. ~·
In other words .what they would be required to establish would be that
(1) there must have been a 'doubt' as to whether the offence under the -
'Customs Act' could be proved or whether the offence under the 'Gold

.~-~
(Control) Act' would be proved and (2) that in the context of this
c doubt an alternative charge could have been framed under Section 236. .'
Now, on & 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 if an offence could fall under both of the alternative charges.
D 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 tQe two alternative charges, but the act would not constitute an
offence under both the charges. This point is made clear by the illustra-
tions to Section 236 viz:
)......
E "(a) A is accused of an act which may amount to theft, or
receiving stolen property, or criminal breach of trust
of cheating. He may be charged with theft, receiving
stolen property, criminal breach of trust and cheating
or he may be charged with having committed theft, or

F
receiving stolen property, or criminal breach of trust
or cheating.

(b) A states on oath before the Magistrate that he saw B
f
hit C with a club. Before the Sessions Court A states on
oath that B never hit C. A may be charged in the
alternative and convicted of intentionally giving false
G evidence, although it cannot be proved which of these
contradictory statements was false."
~-
Illustration (a) refers to framing of an alternative charge in
respect of theft or receiving of stolen property or criminal breach of
trust or cheating. It will be seen that a person cannot be said to have
H committed the offence both of theft as also of 'receiving of stolen
V.JC. AGARWAL v. V.B. BHATIA !THAKKAR, J.I 457
y
property'. A person who himself commits the theft, cannot be guilty of
the charge of 'receiving stolen property' whereas a person who may A
have nothing to do with commission of theft, but who may be found in
possession of the stolen property, would be guilty of the offence of
'receiving stolen property'. Now the prosecution cannot foresee
whether the person from whose possession the stolen article was found
•~ was himself the thief or as merely a person who had received stolen
property from the thief. A person cannot be found guilty of both
B

'theft' as also for 'receiving stolen property'. And it is in such a case

- that an alternative charge under Section 236 could be framed. In the
present case the concerned respondents could be found guilty of both
the offences in the context of the possession of gold. If it was
established that there was a prohibition against the import of gold and
; -~ that he was found in possession of gold which he knew or had reason to c
believe was liable to confiscation he would be guilty of that offence.
He would also be guilty of an offence under the Gold (Control) Act
provided the gold is of a purity of atleast 9 carats. He would have
violated the provisions of 'both' the Customs Act and the Gold (Con-
trol) Act if the aforesaid. ingredients were established. It is not as if in D
case he was found guilty of an offence under the Customs Act, he
could not have been found guilty under the Gold (Control) Act or vice
versa. Upon being found guilty of both the offences the Court may
perhaps impose a concurrent sentence in respect of both the offences
~ but the Court has also the power to direct that the sentence shall run
consecutively. There is therefore no question of framing of an altema- E
tive charge one, under the Customs Act, and the other, under the
Gold (Control) Act. If the ingredients of both the offences are
satisfied the same act of possession of the gold would constitute an
offence both under the Customs Act as also under the Gold (Control)

:{ ~
Act. Such being the position it cannot be said that they could have
been tried on the same facts for an alternative charge in the context of
Section 236 Cr. P.C. at the time of the former proceedings. The sub-
F

mission urged in the context of Section 403(1) cannot therefore sue-
ceed for it cannot be said that the persons who are sought to be tried in
the subsequent proceedings could have been tried on the same facts at
the foml.er trial under Section 236.
G
Strong reliance has been placed on behalf of the respondents on
·~ Maqbool Hussain v. The State of Bombay & Ors. etc. etc., [1953)
S.C.R. Vol. IV p. 730 in support of the submission that the second
prosecution is barred. In Maqbool's case the central issue arose in the
context of the fact that a person who had arrived at an Indian Airport
from abroad on being searched was found in possession of gold in H
·~

458 SUPREME COURT REPORTS I19881 3 S.C.R.
~ ·.
A contravention of the relevant notification, prohibiting the import of
gold. Action was taken against him by the Customs authorities and the
gold seized from his possession was confiscated. Later on a prosecu-
tion was launched against him in the criminal court at Bombay charging
him with having committed the offence under Section 8 of the Foreign
Exchange Regulation Act (Act 7 of 1947) read with the relevant notifi-
B cation. In the background of these facts the plea of 'autrefois acquit'
was raised seeking protection under Article 20(2) of the Constitution
of India. This Court came to the conclusion that the proceedings
before the Customs authority did not constitute the 'prosecution' of
the appellant. The Court also took the view that the penalty imposed
on him did not constitute a 'punishment' by the judicial tribunal.
-
C Under the circumstances the trial was not barred. The ratio of the .J_.
decision is altogether different and has no application in so far as the l .
plea raised by the respondents is concerned. However, reliance is
placed on certain observations made in the course of the discussion, at
p. 737. To quote:

D "The test is whether the former offence and the offence now
charged have the same ingredients in the sense that the facts
constituting the one are sufficient to justify a conviction of
the other, not that the facts relied on by the Cro1;n are the
same in the two trials. A plea of 'autrefois acquit' is not
proved unless it is shown that the verdict of acquittal of the ).,..;
E previous charge necessarily involves an acquittal of the lat·
ter." (Vide Halsbury's Laws of England, Hailsham Edi·
lion. Vol. 9 pages 152 and 153, paragraph 212)."

(Emphasis added)

F We have already applied the very test indicated in this passage. But we
have reached the conclusion that in the present case this test does not
):
support the respondents' submission in asmuch as the ingredients of
the two offences are different in scope and content. The facts con·
stituting the offence under Customs Act are different and are not
sufficient to justify the conviction under the Gold Control Act. It must
G also be realized that what is necessary is to analyze the ingredients of
the two offences and not the allegations made in the two complaints as
declared by this Court in State of Bombay v. S. L. Apte & Another,
,_ .
11961] 3 S.C.R. p. 107.

We have also concluded that a separate charge could have been
H framed .in respect of the distinct offence under Gold Control Act

• . i···
V.K. AGARWAL v. V.B. BHATIA [THAKKAR, J.) 459

Under the circumstances the plea raised by the defence cannot A
succeed. The two conclusions reached by· us brings the matter squarely .
within the parametres of the law settled by this Court decades ago in
S.L. Apte's case (Supra). In that case the element of 'dishonesty' was
required to be established under section 409 of Indian Penal Code
whereas it was not required to be established under Section 105 of the 8
Indian Insurance Act. In this backdrop this Court has enunciated the
law in the context of the plea based on Article 20{2) of the Constitu-
tion, Section 26 of General Clauses Act and section 403{2) of the
- Criminal Procedure Code in no uncertain terms:

"If, therefore, the offences were distinct there is no ques-
tion of the rule as to double-jeopardy as embodied in Art. c
20{2) of the Constitution, being applicable.

The next point to be considered is as regards the
scope of s. 26 of the General Clauses Act. Though s. 26 in
its opening words refers to "the act or omission constituting D
an offence under two or more enactments", the emphasis is
not on the facts alleged in the two complaints but rather on
the ingredients which constitute the two offences with
which a person is charged. This is made clear by the con-
cluding portion of the section which refers to "shall not be
liable to be punished twice for the same offence". If the E
offences are not the same but are distinct, the ban imposed
by this provision also cannot be invoked. It therefore fol-
lows that in the present case as the respondents are not
being sought to be punished for "the same offence" twice
but for two distinct offences constituted or made up of
different ingredients the bar of the provision is inappli- F
cable.

In passing, it may be pointed out that the construc-
tion we have placed on Art. 20(2) of the Constitution and
s. 26 of the General aauses Act is precisely in line with the
terms of s. 403(2) of the Criminal Procedure Code which G
runs:

403{2) A person acquitted or convicted of any offence
may be afterwards tried for any distinct offence for which a
~- separate charge might have been made against him ·on the
former trial under section 235, sub-section (I)". H
460 SUPREME COURT REPORTS 11988) 3 S.C.R.

A There is no manner of doubt that section 403( 1) does not come to
rescue of the respondents 1 to 3 whereas section 403(2) of the Code
clearly concludes the matter against them.

The High Court was therefore in error in holding that subse-
B quent trial was barred. We accept the appeal on this point and reverse
the decision of the Courts below and the High Court. The appellant
was understandably seriously aggrieved by the erroneous enunciation
of law by the High Court as it would cause prejudice in other matters
involving the same point which may have been pending or might arise
in future. With the position of law being now settled in the appellant's -
favour the main objective of the appellant is achieved. Learned
C counsel for the appellant indicated at the very commencement that the
main purpose of the appeal was to have the true position in law senled.
That 20 years have elapsed since the date of the seizure (November 15,
1968) is, in our opinion, no ground for not proceeding furtker with
the matter inasmuch as the offence in question is a serious economic
offence, which undermines the entire economy of the Nation. The
D delay occasioned in the working of the judicial system by the ever-
increasing workload cannot provide an alibi for upholding such a plea.
However in the present case the Sessions Court has quashed the pro-
ceedings not only on this ground but also on the basis of certain factual
findings as well and the learned Counsel for the appellant himself
E found it difficult to assail these findings at this juncture. The operative
order passed by the High Court cannot therefore be disturbed in view
.of the facts and circumstances peculiar to this particular case. We
accordingly allow the appeal to this extent and reverse the finding of
the Lower Courts and High Court on the question of maintainability of
the subsequent prosecution but find ourselves unable to pass any
further orders under the circumstances.
F
S.L. Appeal allowed.