The Chief Presidency Magistrate recorded evidence and on the 20th January, 1950, recorded the finding that the appellant was the owner of the gold in question and returned the finding to the High Court.
Chagla C.J. and Gajendra gadkar J. heard the petition further on the 12th February, 1951.
In the opinion of the High Court the appellant companyld be said to have been punished only if it were established that he was the owner of the companyfiscated gold.
The appellant thereupon on the 12th June, 1950, filed a petition in the High Court of Bombay under article 228 of the Constitution companytending that his prosecution in the Court of the Chief Presidency Magistrate was in violation of the fundamental right guaranteed to him under article 20 2 of the Constitution and praying that as the case involved a substantial question of law as to the interpretation of the Constitution, the determination of which was necessary for the disposal of the case, the case may be withdrawn from the file of the Chief Presidency Magistrate to the High Court and the High Court may either dispose of the case themselves or determine the question of law and return it to the Chief Presidency Magistrates Court for disposal.
Appeal by special leave from the Judgment and Order, dated 12th February, 1951, of the High Court of Judicature at Bombay in Criminal Application No.
They therefore sent the matter back to the Chief Presidency Magistrate directing him to find a to whether the appellant was or was number the owner of the gold stating that they would deal with the application after the finding was returned.
On the 22nd March, 1950, a companyplaint was filed in the Court of the Chief Presidency Magistrate, Bombay, against the appellant charging him with having companymitted an offence under section 8 of the Foreign Exchange Regulation Act VII of 1947, read with the numberification dated the 25th August, 1948.
Nobody came forward to redeem the gold.
As a matter of fact when evidence was recorded before the Chief Presidency Magistrate on remand the Assistant Collector of Customs gave evidence that numberone else had claimed the gold and had the appellant paid the penalty and obtained the Reserve Bank permit and produced the detention slip he would have been given the gold.
They reversed the finding of the Chief Presidency Magistrate, dismissed the application of the appellant and directed that the case should go back to the Chief Presidency Magistrate for disposal according to law.
Copy of this order was forwarded to the appellant and for all practical purposes the appellant was treated as the owner of the companyfiscated gold.
The appellant obtained on the 1st November, 1951, special leave to appeal against the judgment and order passed by the High Court.
12,000 in lieu of such companyfiscation under section 183 of the Sea Customs Act.
This question of the ownership of the gold was number in our opinion material.
The case was thereupon withdrawn and brought before the High Court and was heard by the High Court on the 17th October, 1950.
A companyy of the order was sent on the 30th January, 1950, to the appellant.
If he was the owner, the companyfiscation was a punishment, which would number be so if he was number the owner of the gold.
81 of 1952.
81 of 1952.
A rule was issued by the High Court on the 26th June, 1950, which came on for hearing on the 9th August, 1950, before Bavdekar and Vyas JJ.
The appellant, a citizen of Bharat, arrived at the Santa Cruz airport from Jeddah on the 6th November, 1949.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
The Judgment of the Court was delivered by Bhagwati J. BHAGWATI J. This appeal by special leave from a judgment and order of the High Court of Judicature at Bombay raises an important question as to the companystruction of article 20 2 of the Constitution.
Proceedings under section 167 8 were taken by the Customs Authorities and after examining witnesses an order was passed on the 19th December, 1949, companyfiscating the gold and giving an option to the owner to pay a fine of Rs.
The rule was made absolute and the High Court directed that the proceedings pending against the appellant in the Court of the Chief Presidency Magistrate be withdrawn and brought before the High Court under article 228 of the Constitution.
April 17.
Once the appellant was found in possession of the companyfiscated gold the burden of proving that be was number the owner would fall upon whosoever affirmed that he was number the owner.
The companyplaint which was filed in the Court of the Chief Presidency Magistrate, Bombay, also proceeded on the footing that the appellant companymitted an offence in so far as he brought the gold without the permit from the Reserve Bank of India, that numberpermit was ever applied for or granted to the appellant and that the appellant had been given an opportunity of showing whether he had obtained such permit but that he failed to produce the same.
170, 171 and 172, being Petitions under Art.
Petitions Nos.
The Customs Authorities thereupon took action under section 167, clause 8 , of the Sea Customs Act VIII of 1878, and companyfiscated the gold by an order dated the 19th December, 1949.
32 of the Constitution, were also heard along with Appeal No.
The learned Judges of the High Court, Chagla C.J. and Gajendragadkar J. were of the opinion that the appellant companyld claim the benefit of article 20 2 only if he was the owner of the gold which was companyfiscated and that before they decided as to whether there had been a prosecution and a punishment within the meaning of article 20 2 it was necessary that the Chief Presidency Magistrate should determine the question of fact as to whether the appellant was the owner of the gold which had been companyfiscated and in respect of which an option was given to him as stated above.
The owner of the gold was however given the option to pay in lieu of such companyfiscation a fine of Rs.
On landing he did number declare that he had brought in gold with him but on search it was found that he had brought 107.2 tolas of gold in companytravention of the numberification of the Government of India dated the 25th August,1948.
C. Setalvad, Attorney General for India Porus A. Mehta, with him for the State of Bombay.
644 of 1950.
Ishwarlal C. Dalal for the appellant.
Jagjit Singh, Petitioner in Petition No.
M. Sikri, Advocate General of Punjab Jindra Lal, with him for the State of Punjab.
In order however to attract the operation of article 20 2 the appellant must have been prosecuted and punished for the same offence when proceedings were taken by the Sea Customs Authorities.
170 of 1951, in person.
Other petitioners number represented.
The gold was found in the possession of the appellant when he landed at the Santa Cruz airport.
The appellant was detained and searched by the Customs Authorities and the gold was seized from his person.
12,000, which option was to be exercised within four months of the date of the order.
The High Court did number go into the question as to whether the appellant was prosecuted when proceedings were taken before the Sea Customs Authorities.
