Law Maker

Maqbool Hussain v. State of Bombay

Supreme Court of India · 17 April 1953 · 5 judges · 1953 AIR 325; 1953 SCR 730

Article 20(2) bars a second prosecution only after a prosecution and punishment before a court or judicial tribunal; customs confiscation is not one, so the later prosecution under the Foreign Exchange Regulation Act could proceed.

Facts

The appellant arrived at Bombay from Jeddah with 107.2 tolas of gold which he did not declare. The Customs Authorities confiscated the gold under Section 167(8) of the Sea Customs Act, 1878, giving the owner an option to pay a fine of Rs. 12,000 in lieu. He was then prosecuted before the Chief Presidency Magistrate under the Foreign Exchange Regulation Act, 1947. He pleaded Article 20(2); the Bombay High Court rejected the plea and he appealed by special leave. Three petitions under Article 32 by detenus, who had been punished by the Jail Superintendent for a hunger strike and were later prosecuted before a Magistrate for the same jail offence, were heard with the appeal.

Questions before the Court

  1. What is meant by being 'prosecuted and punished' for the same offence under Article 20(2)?
  2. Does confiscation of goods by the Sea Customs Authorities under the Sea Customs Act amount to prosecution and punishment that bars a later prosecution under the Foreign Exchange Regulation Act?
  3. Does punishment of detenus by the Jail Superintendent under the Punjab Communist Detenus Rules, 1950 bar their later prosecution before a Magistrate?

What the Court held

  • Article 20(2) embodies the plea of autrefois convict or double jeopardy, but requires both a prosecution and a punishment in the first instance before it bars a second prosecution and punishment for the same offence.
  • The earlier proceeding must be a prosecution of a criminal nature before a court of law or a judicial tribunal required to decide judicially on evidence on oath, not a departmental or administrative enquiry, even one set up by statute.
  • The Sea Customs Authorities are administrative machinery, not a judicial tribunal. Confiscation under the Sea Customs Act was neither a prosecution nor a punishment by a court, so the prosecution under the Foreign Exchange Regulation Act was not barred and the appeal was dismissed.
  • The Jail Superintendent acting under the detenus' rules is an administrative authority, so Article 20(2) did not apply. But having punished the detenus himself under Rule 41(1), he had no power to send them to a Magistrate for the same jail offence. That prosecution was not according to procedure established by law under Article 21 and was quashed.
  • One petitioner's prosecution for offences under Sections 332, 353, 147 and 149 of the Indian Penal Code was allowed to proceed: the punishment register showed he had not been punished for them, and rioting under Sections 147 and 149 was not a jail offence and was triable only by the Magistrate.

Why it matters

The judgment settles the meaning of Article 20(2): the protection against double jeopardy in the Constitution is narrower than the American rule, since it requires an earlier prosecution and punishment for the same offence before a court or judicial tribunal. Departmental and administrative proceedings, such as customs confiscation, do not bring the bar into play. The judgment also applies Article 21 to quash a prosecution that the governing rules did not authorise.

In the Court's words

Copied from the official judgment; each passage links to its page.

“It incorporated within its scope the plea of "autrefois convict" as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.”
Bhagwati, J.Page 6 of the judgment
“But if regard be had to the whole background indicated above it is clear that in order that the protection of article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal,required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or ail administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath.”
Bhagwati, J.Page 6 of the judgment
“We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy.”
Bhagwati, J.Page 9 of the judgment

Provisions interpreted

Case and bench

Parties
Maqbool Hussain v. The State of Bombay (with Jagjit Singh v. The State of Punjab and connected petitions)
Case
Criminal Appeal No. 81 of 1952, with Petitions Nos. 170, 171 and 172 of 1951 under Article 32
Decided
17 April 1953
Bench
Bhagwati, Natwarlal H., Sastri, M. Patanjali (CJ), Mukherjea, B.K., Das, Sudhi Ranjan, Hasan, Ghulam
Opinions
Unanimous. Judgment of the Court delivered by Bhagwati, J.

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