COLLECTOR OF CUSTOMS NEW DELHI Vs. GHULAM SARWAR

JUDGEMENT

(1.) Respondent No. 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. Immediately after his arrest, he made a confession before a Magistrate. 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 convict in various offences for which he was convicted, and part of the time as an under-trial prisoner. The first regular case filed against him was under Section 5 of the Registration of Foreigners Act, 1939 in which he was convicted on 29th January, 1965 and sentenced to undergo six month's rigorous imprisonment after he had pleaded guilty. 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 convicted and sentenced to nine months' rigorous imprisonment arid a fine of Rs. 2,000 again after he had pleaded guilty. This conviction was recorded on 29th May, 1965. After he had undergone this sentence, he was again put in detention under Section 3(2)(g) of the Foreigners Act. 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. 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 Section 135 of the Customs Act, for an offence under Section 120-B of the Penal Code, 1860 read with Section 135 of the Customs Act and Section 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 Penal Code, 1860. The respondent again pleaded guilty, was convicted on 31st January, 1969, and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 2,000. In this case, 17 other persons were prosecuted as his co-accused. 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 Section 120B, I.P.C., read with 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, 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 convicted for some of the offences, particularly the offence of conspiracy 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 convicted for a conspiracy earlier, he could not be retried for the same conspiracy, so that this trial was invalid. In the alternative, the respondent prayed that, in case the proceedings are not quashed, the proceedings against him be separated from other co-accused, his plea of guilty be recorded, and he be convicted in accordance with law. Two other alternative prayers were that, in case the first two prayers were not accepted, the trial Court may be directed to record the plea of guilty of the respondent and convict 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 complainant should furnish the evidence against the respondent before the Court. 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 conspiracy was barred as a result of the earlier trial in which the respondent had been convicted on 31st January, 1969, and, consequently, quashed the proceedings in respect of this offence. The Court also quashed the proceedings in respect of specific offences under Section 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 convicted and sentenced in respect of these offences. The High Court, however, added a sentence that, if the respondent is accused of any other specific acts of smuggling, there will be no bar against the continuation of prosecution proceedings in respect of them. It is this order which has been challenged before us in this appeal by special leave.

(2.) In this case, it was very unfortunate that, when the writ petition was heard by the High Court, the very first confession made by the respondent, which was to a great extent the basis of the various prosecutions, was not placed before the High Court and was not brought to its notice. Obviously, there was carelessness on the part of the prosecution in not bringing it to the notice of the High Court. At the same time, the respondent, who had challenged the prosecution, also owed a duty to bring that confession to the notice 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. In his writ petition, the respondent had offered to produce the copy of the confession for perusal of the Court, but the Court test sight of this offer and proceeded to pass the order without examining the confession. The importance of this omission lies in the fact that a reading of the confession itself makes it manifest that there were two different and separate conspiracies, one which was headed by a person known as Abid Hussain, and the other by another person known as Allaudin. The respondent, in the confession, made statements which indicated that these two conspiracies were distinct and separate ones, though a few of the persons involved in the two conspiracies were common. In fact, the confession showed that, at one stage, he was given instructions by the head of one of the conspiracies to see that his part in that conspiracy did not come to the knowledge of the head of the other conspiracy. It is true that, at the initial stage, the customs authorities, even after the confession, proceeded on the view that, very likely, there was one single conspiracy and that the respondent had incorrectly tried to show that there were two separate conspiracies in which he was involved. That appears to be the reason why, at the early stages, in the various documents put forward before the courts, the authorities used language indicating that there was one single conspiracy in respect of which the respondent was being held in custody and was going to be prosecuted. It appears that it was much later, after detailed investigation, that the authorities became satisfied that there were two separate conspiracies and, consequently, came forward with a second prosecution of the respondent in respect of the conspiracy which was not the subject-matter of the first complaint on the basis of which the respondent was convicted on 31st January, 1969. That the authorities were under the impression that there was only one single conspiracy at the earlier stages is apparent from the facts stated in the complaint 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 corpus petition filed by the respondent in the High Court, the allegations made out as if there was one single conspiracy which was engineered by a syndicate headed by Abid Hussain. Even at the time of the prosecution for the first conspiracy on 17th January, 1967, the facts given in the complaint created the impression that there was one single conspiracy and that Allaudin was one of the conspirators in that conspiracy and was not the head of that separate conspiracy for which the respondent and 17 others were prosecuted. 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 Article 226 of the Constitution on which the High Court passed the present impugned order. The High Court preferred to attach greater weight to the affidavit of the Under Secretary to Government and did not choose to act at all on the affidavit of H. K. Kochhar, considering 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. In adopting this course, the High Court lost sight of the 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 Kochhar's 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 conspiracy was incorrect. 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. These facts made it clear that the High Court misdirected itself in accepting the plea of the respondent and in quashing the proceedings. In fact, Mr. Jethmalani, counsel for the respondent, did not make any serious effort to justify the order of the High Court after we had gone through the confession of the respondent, so that it is obvious that the order of the High Court quashing the proceedings was not justified.

(3.) Mr. Jethmalani, however, urged that, even though the order of the High Court may not be justified, the circumstances of this case do not require that this Court should exercise its special powers under Article 136 of the Constitution to order a trial of the respondent and reopen the proceedings. He drew our attention to two decisions of this Court in K. V. Krishnamurthy Iyer and Ors. v. The State of Madras, A.T.R. 1954 S.C. 406 and The State of Bihar v. Hiralal Kejriwal and Anr., 1960 Cri LJ 150 in which this Court declined to order a re-trial in exercise of its powers under Article 136 of the Constitution even though the orders in which the trials had terminated were held to be incorrect and set aside. In both the cases, the principle laid down was that public interest or the interest of justice did not require that there should be a fresh trial. Reliance was also placed on the views expressed by the Bombay High Court in Chudaman Narayan Patil v. State of Maharashtra,, AIR 1969 Bom 1 . On the basis of the views expressed in those cases, he urged that, in this case, the respondent had been in custody for a period of about six years since his arrest and was being harassed by prosecutions launched one after the other, while being kept in custody under Section 3(2)(g) of the Foreigners Act during the period when he could not be detained either as a convict or as an under-trial prisoner. He also emphasised the frank confession of his part in the conspiracies and that, every time frank confession of his part in the conspiracies and that, everytime a case was brought up against him, he stuck to that confession and pleaded guilty in court. He was also given the impression, when the earlier case of conspiracy was started on 17th January, 1967, that after the trial of that case, his woes will be over and he will not have to face any further trials.