The High Court preferred to attach greater weight to the affidavit of the Under Secretary to Government and did number choose to act at all on the affidavit of H. K. Kochhar, companysidering that the former affidavit was by a senior officer on behalf of the Government, while the,, latter affidavit had been sworn by an Assistant Collector of Customs only.
The importance of this omission lies in the fact that a reading of the companyfession itself makes it manifest that there were two different and separate companyspiracies, one which was, headed by a person known as Abid Hussain, and the other by another person known as Allau din.
The High Court, however, added a sentence that, if the respondent is accused of any other specific acts of smuggling , there will be numberbar against the companytinuation of prosecution proceedings in respect of them.
In this case, 17 other persons were prosecuted as his companyaccused.
These circumstances were partly explained in a later affidavit of H. K. Kochhar, Assistant Collector of Customs, sworn on 12th May, 1969, and filed in the High Court in reply to the petition under Art.
Then, on 17th January, 1967, a case was filed in the Court of Miss K. Sen Gupta, S.D.M., New Delhi, for a substantive offence under s. 135 of the Customs Act, for an offence under section 120 B of the Indian Penal Code read with S. 135 of the Customs Act and s. 23 1 a of the Foreign Exchange Regulations Act, and an offence under section 23 1 a of the Foreign Exchange Regulations Act read with sections 109 and 114 of the Indian Penal Code.
The respondent, in the companyfession, made statements which indicated that these two companyspiracies were distinct and separate ones, though a few of the persons involved in the two companyspiracies were companymon.
Even at the time of the prosecution for the first companyspiracy on 17th January, 1967, the facts given in the companyplaint created the impression that there was one single companyspiracy and that Allau din was one of the companyspirators in that companyspiracy and was number the head of that separate companyspiracy for which the respondent and 17 others were prosecuted.
Appeal by special leave from the judgment and order dated September 11, 1969 of the Delhi High Court in Criminal Misc.
The High Court, by its order dated 11th September, 1969, accepted the plea of the respondent, held that this second trial for the offence of companyspiracy was barred as a result of the earlier trial in which the respondent had been companyvicted on 31st January, 1969, and, companysequently, quashed the proceedings in respect of this offence.
This companyviction was recorded on 29th May, 1965.
During the pendency of this case,, another case was filed in the Court of Shri N. C. Jain, S.D.M., New Delhi, on 18th March, 1968 against the respondent and 45 other persons charging them with offences under s. 120, I.P.C., read with s. 135 of the Customs Act, section 167 81 of the Sea Customs Act and section 23 1 A of the Foreign Exchange Regulations Act, as well as substantive offences under section 135 of the Customs Act, section 167 81 of the Sea Customs Act, and section 23 1 A of the Foreign Exchange Regulations Act.
Having already been companyvicted for some of the offences, particularly the offence of companyspiracy in the earlier case, on the 31st January, 1969, the respondent moved a writ petition in the High Court on 4th April,, 1969, for quashing these last proceedings on the ground that, having been companyvicted for a companyspiracy earlier, he companyld number be retried for the same companyspiracy, so that this trial was invalid.
accordance with law.
In the alternative, the respondent prayed that, in case the proceedings are number quashed, the proceedings against him be separated from other companyaccused, his plea of guilty be recorded, and he be companyvicted in?
While he was undergoing that sentence, a second case was filed against him for an offence under section 135 of the Customs Act in which he was companyvicted and sentenced to nine months rigorous imprisonment and a fine of Rs.
It appears that it was much later, after detailed investigation, that the authorities became satisfied that there were two separate companyspiracies and, companysequently, came forward with a second prosecution of the respondent in respect of the companyspiracy which was number the subject matter of the first companyplaint on the basis of which the respondent was companyvicted on 31st January, 1969.
The position has been further clarified before us in the affidavit of the Collector of Customs, R. Prasad, filed in reply to the petition for revocation of special leave to appeal on the basis of which this appeal has been heard by us.
At the same time, the respondent, who had challenged the prosecution, also owed a duty to bring that companyfession to the numberice of the High Court as the burden lay on him to show that the prosecution going on against him was illegal and liable to be quashed and he had moved the High Court to exercise its extra ordinary writ jurisdiction to obtain this relief.
53 of 1969.
In adopting this companyrse, the High Court lost, sight of the.
Immediately after his arrest, he made a companyfession before a Magistrate.
This detention was challenged by him by filing two writ petitions in the High Court of Punjab, and in this, Court, but both the writ petitions were dismissed.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.207 of 1969.
Jethamalani, Harjinder Singh, Kumar Mehta, H. K. Puri and Rameshwar Nath, for respondent No.
The first regular case filed against him was under section 5 of the Registration of Foreigners Act, 1939 in which he was companyvicted on 29th January, 1965 and sentenced to undergo six months rigorous imprisonment after he had pleaded guilty.
It is this order which has been challenged before us in this appeal by special leave.
1, Ghulam Sarwar hereinafter referred to as the respondent , who is a Pakistani national,was arrested on 8th May, 1964 under section 104 of the Customs Act, 1962.
A. Seyid Muhammad and S. P. Nayar, for the appellant.
Main No.
circumstance that the affidavit of the Under Secretary was filed in January, 1966 when the investigation of the various facts was at a fairly early stage, while Kochhars affidavit was filed in May, 1969, by which time fuller investigation had been made by the authorities and they had discovered that their first impression that there was one single companyspiracy was incorrect.
In this case, it was very unfortunate that, when the writ petition was heard by the High Court, the very first companyfession made by the respondent, which was to a great extent the basis of the various prosecutions, was number placed before the High Court and was number brought to its numberice.
The Judgment of the Court was delivered by Bhargava, J Respondent No.
Since then, he has been in custody part of the time under section 3 2 g of the Foreigners Act, 1946, part of the time as a companyvict in various offences for which he was companyvicted, and part of the time as an under trial prisoner.
Two other alternative prayers were that, in case the first two prayers were number accepted, the trial Court may be directed to record the plea of guilty of the respondent and companyvict him in accordance with law even in the joint trial, and, in the alternative, the trial Court be ordered to take up the proceedings day to day and a time limit may be fixed by which the companyplainant should furnish the evidence against the respondent before the Court.
The Court also quashed the proceedings in respect of specific offences under s. 135 of the Customs Act and section 23 1 A of the Foreign Exchange Regulations Act insofar as they related to smuggling of 52 kilograms of gold into India on or about 8th May, 1964 on the ground that the respondent had already been companyvicted and sentenced in respect of these offences.
226 of the Constitution on which the High Court passed the present impugned order.
That the authorities were under the impression that there was only one single companyspiracy at the earlier stages is apparent from the facts stated in the companyplaint dated 5th April, 1965 in respect of the substantive offence under section 135 of the Customs Act, and even later, in an affidavit filed on 5th January, 1966 by the Under Secretary to Government in reply to the habeas companypus petition filed by the respondent in the High Court, the allegations made out as if there was one single companyspiracy which was engineered by a syndicate headed by Abid Hussain.
In his writ petition, the respondent had offered to produce the companyy of the companyfession for perusal of the Court, but the Court lost sight of this offer and proceeded to pass the order without examining the companyfession.
Obviously, there was carelessness on the part of the prosecution in number bringing it to the numberice of the High Court.
