Leo Roy Frey Vs. The Superintendent,
District Jail, Amritsar & ANR  INSC 94 (31 October 1957)
DAS, SUDHI RANJAN (CJ) AIYYAR, T.L.
VENKATARAMA DAS, S.K.
CITATION: 1958 AIR 119 1958 SCR 822
Sea Customs-Award of confiscation and
Penalty-If a bar to prosecution for criminal conspiracy-Sea Customs Act, 1878
(VIII of 1878), ss. 167(8), 186-Indian Penal Code (Act XLV of
1860),s.120B-Constitution of India, Art. 20(2).
The petitioners were found guilty under s.
167(8) of the Sea Customs Act and the currency and other goods recovered from
their possession were confiscated and heavy personal penalties imposed on them
by the Collector of Central Excise and Land Customs. Complaints were thereafter
lodged against them by the Customs authorities before the Additional District
Magistrate under s. 120B of the Indian Penal Code, read with S. 23/23B of the
Foreign Exchange Regulations Act, 1947, and s. i67(8i) of the Sea Customs Act,
as also under other sections of the two latter Acts. The Magistrate granted
bail but they could not furnish the requisite security and were, therefore,
kept in judicial custody. By two petitions under Art. 32 Of the Constitution
they prayed for the issue of writs of certiorari and/or prohibition for
quashing the proceedings pending against them in the Court of the Magistrate as
also for the issue of writs of habeas corpus. It was contended on their behalf
that in view of the provision of Art. 20(2) Of the Constitution they could not
be prosecuted and punished twice over for the same offence and the proceedings
pending before the Additional Magistrate violated the protection afforded by
Art. 20(2) of the Constitution.
Held, that the contention was without
substance and the petitions must be dismissed.
The fact that in imposing confiscation and
penalties under s. 167(8) of the Sea Customs Act, the Collector of Customs acts
823 judicially is not decisive and does not attract the protection of Art.
20(2) of the Constitution. Section 186 of the Act does not prevent the
infliction of any other punishment to which the person concerned may be liable
under any other law.
F. N. Roy v. Collectoy of Customs, Petition
NO. 438 Of 955, decided on May 16, 1957, referred to.
Criminal conspiracy is an offence under s.
120B of the Indian Penal Code but not so under the Sea Customs Act, and the
petitioners were not and could not be charged with it before the Collector of
Customs. It is an offence separate from the crime which it may have for its
object and is complete even before the crime is attempted or completed, and
even when attempted or completed, it forms no ingredient of such crime.
United States v. Rabinowith, (1915) 238 U.S.
78, referred to.
ORIGINAL JURISDICTION: Petitions Nos. 126 and
127 of 1957.
(Under Article 32 of the Constitution of
India for enforcement of Fundamental Rights).
N. C. Chatterjee and Nanak Chand, for the
M. C. Setalvad, Attorney-General for India,
B. Sen and R. H. Dhebar, for the respondents.
1957. October 31. The following Order of the
Court was delivered by DAS C.J.--In their respective separate petitions, the
petitioners pray (1) for an order, direction or writ in the nature of
certiorari and/or prohibition calling for the records in the case of the
Assistant Collector of Land Customs & Central Excise, Amritsar, against the
two petitioners and one Moshe Baruk, on the file of the Additional District
Magistrate of Amritsar and for quashing the proceedings therein, and (2) for an
order, direction or writ in the nature of habeas corpus for the production
before this Court of the persons of the petitioners to be dealt with according
The facts appearing from the records are
shortly as follows:
The petitioner, Leo Roy Frey, purchased a car
No. C.D. 75 TT 6587 from an officer of the American Embassy in Paris. This car
was sold by the petitioner Frey to the petitioner Thomas Dana, in May 1957. On
transfer, the car was registered in the name of the petitioner Dana on May 18,
1957. Both the petitioners thereafter booked their passages through the, 824
American Express Company from Geneva to Bombay by s.s. ASIA.
The car was also shipped by the same vessel.
The two petitioners disembarked at Karachi Ion June 11, 1957, and after a brief
halt at Karachi, they left together by plane for Bombay and reached Bombay on
the same day. petitioners stayed together at the Ambassador Hotel at Bombay
from June 11, 1957, to the afternoon of June 19, 1957. On the last mentioned
date both of them left Bombay by plane and reached Delhi the same evening. They
occupied room No. I at Janpath Hotel and stayed there from June 19, to June 29,
After the car, which had been booked by rail
from Bombay to Delhi, had arrived in Delhi, the two petitioners left Delhi and
travelled together in the car from Delhi to Amritsar on June 22, 1957, and
after staying the night there, they arrived at Attari Road Land Customs Station
on their way out to Pakistan on June 23, 1957. The Customs officers there
required the petitioners to declare in Baggage Declaration Forms supplied to
them the articles which they had in their possession, including any goods which
were subject to Export Trade Control and/or Foreign Exchange restrictions
and/or were dutiable. Each of the petitioners completed his Baggage Declaration
Form and handed it over to the Customs authorities duly signed by him. On that
very day the persons of each of the petitioners were also searched and certain
currency and movable property which had not been included in the baggage
declaration were recovered. Amongst other things, a pocket radio and a
time-piece were recovered from the petitioner Dana and a pistol of 22 bore with
48 live cartridges of the same bore was recovered from the person of the
petitioner Frey. Both the petitioners were put under arrest on the same day,
namely, June 23, 1957. On June 30,1957, the petitioners were interrogated and
the car was thoroughly searched. As a result of such intensive search and
minute inspection, a secret chamber above the petrol tank was discovered. On
opening the secret chamber, Indian currency to the tune of Rs. 8,50,000 and
U.S. dollars amounting to 10,000 were discovered in the concealed recess and
825 seized by the police. On July 7, 1957, notice was issued to the petitioner
Dana under s. 167(8) of the Sea Customs Act to show cause before the Collector
why under that section penalty should not be imposed on, him and why the seized
articles should not be confiscated. A similar notice was served on the
petitioner Frey, on July 9, 1957. The petitioners made representations in
writing and were also heard in person. On July 24, 1957, the Collector of
Central Excise and Land Customs made an order for the confiscation of the
currency and also of the motor car with an option to the petitioner Dana to
redeem the car on payment of Rs. 50,000 and also ordered confiscation of
articles other than the currency recovered from the car subject to redemption
on payment of Rs. 100. The Collector was also satisfied that each of the two
petitioners was equally guilty of an offence under s. 167(8) of the Sea Customs
Act and imposed a personal penalty of Rs. 25,00,000 on each of the petitioners,
to be paid within two months from the date of the order or such extended period
as the adjudicating officer might allow.
On August 12, 1957, the Assistant Collector
of Customs and Central Excise, Amritsar, lodged a complaint against the two
petitioners and one Moshe Baruk of Bombay before the Additional District
Magistrate, Amritsar, under s. 23 read with s. 8 of the Foreign Exchange
Regulations Act, 1947 and s. 167 (81) of the Sea Customs Act, 1878, as amended
by the Sea Customs (Amendment) Act, 1955. Subsequently, a fresh complaint was
filed by the same Assistant Collector of Land Customs and Central Excise
against the two petitioners and the said Moshe Baruk before the Additional
District Magistrate, Amritsar,' under s. 23 read with s. 8 of the Foreign
Exchange Regulations Act, 1947, and s. 167(81) of the Sea Customs Act and s'
120-B of the Indian Penal Code, read with S. 23/23-B, Foreign Exchange
Regulations Act and s. 167(81), Sea Customs Act, 1878. A case was also started
against the petitioner Frey under the Indian Arms Act for being in possession
of the pistol and the cartridges in contravention of the provisions of s. 20 of
826 that Act. He was ordered to be let out on bail in the sum of Rs. 10,000
with one surety in the Arms Act case, which he furnished. The trial of the Arms
Act case has concluded in the Court of the Additional District Magistrate but
orders are pending. The petitioners, Frey and Dana, were directed to be
released on bail in the sum of rupees five lakhs and ten lakhs respectively,
which were finally reduced by the High Court to rupees two lakhs and five lakhs
Neither of the petitioners could furnish the
requisite security and they have, therefore, been in judicial custody.
They have now come forward with these
applications for the reliefs already mentioned. Their main contention, urged
before us, is that they have been deprived of their liberty otherwise than in accordance
with procedure established by law.
In ordinary circumstances the production of
the order or warrant for the apprehension and detention of an undertrial
prisoner would be a good return to a writ of habeas corpus.
But the petitioners contend that in this case
there has been a violation of their fundamental right under Art. 20(2) of the
Constitution. Relying on the observations in the decision of the Calcutta High
Court in Assistant Collector v. Soorajmal (1), and in the decision of the
Madras High Court in Collector of Customs v. A. H. A. Rahiman (2), it is
contended that in making the order of confiscation and penalty under s. 167(8)
of the Sea Customs Act, the Collector was acting judicially and therefore the
petitioners have already been proceeded with and punished for the offence of
importation and attempted exportation of goods, the importation or exoprtation
of which is for the time being prohibited or restricted by or under chap. IV of
the Sea Customs Act, and consequently they cannot again be prosecuted and
punished for the same offence. The argument is that the pending proceedings
before the Additional District Magistrate offend against the protection given
to the petitioners by Art. 20(2) of Constitution. That in imposing confiscation
and penalties the Collector acts judicially has been held by this Court in its
judgment (I) (1952) 56 C.W.N. 452.
(2) A.I.R. 957 Mad. 496.
827 pronounced on May 16, 1957, in F. N. Roy
v. Collector of Customs (1). No question has been raised as to the maximum
amount of penalty that can be imposed under s. 167(8) and we are not called
upon to express any opinion on that point.
But the fact that the Collector of Customs
acted judicially is not decisive and does not necessarily attract the
protection guaranteed by Art. 20(2) and the question still remains whether the
petitioners' case comes within the provisions of Art. 20(2). That article
protects a person from being prosecuted and punished for the same offence more
than once". The question has to be answered as to whether the petitioners
had previously been prosecuted and punished for the same offence for which they
are now being prosecuted before the Additional District Magistrate. The
proceedings before the Customs authorities were under s. 167(8) of the Sea
Customs Act. Under s. 186 of that Act, the award of any confiscation, penalty
or increased rate of duty under that Act by an officer of Customs does not
prevent the infliction of any punishment to which the person affected thereby
is liable under any other law. The offences with which the petitioners are now
charged include an offence under s. 120B, Indian Penal Code. Criminal
conspiracy is an offence created and made punishable by the Indian Penal Code.
It is not an offence under the Sea Customs Act. The offence of a conspiracy to
commit a crime is a different offence from the crime that is the object of the
conspiracy because the conspiracy precedes the commission of the crime and is
complete before the crime is attempted or completed, equally the crime
attempted or completed does not require the element of conspiracy as one of its
ingredients. They are, therefore, quite separate offences. This is also the
view expressed by the United States Supreme Court in United States v.
The offence of criminal conspiracy was not
the subject matter of the proceedings before the Collector of Customs and
therefore it cannot be said that the petitioners have already been prosecuted
and punished for the "same offence".
(1) Petition NO. 438 Of 1955. 105 (2) (1915)
238 U.S. 78.
828 It is true that the Collector of Customs
has used the words " punishment " and " conspiracy ", but
those words were used in order to bring out that each of the two petitioners
was guilty of the offence under s. 167(8) of the Sea Customs Act. The petitioners
were not and could never be charged with criminal conspiracy before the
Collector of Customs and therefore Art. 20(2) cannot be invoked. In this view
of the matter it is not necessary for us, on the present occasion, to refer to
the case of Maqbool Hussain v. The State of Bombay (1) and to discuss whether
the words used in Art. 20 do or do not contemplate only proceedings of the
nature of criminal proceedings before a court of law or a judicial tribunal as
ordinarily understood. In our opinion, Art. 20 has no application to the facts
of the present case. No other points having been urged before us, these
applications must be dismissed.