GULAM SARWAR Vs. STATE

JUDGEMENT

(1.) This is a petition filed under Article 227 and 228 of the Constitution of India and under S. 561-A of Criminal Procedure Code for quashing the criminal proceedings now pending against the petitioner in the court of Shri N. C. Jain, S.D.M., New Delhi.

(2.) The petitioner is a Pakistani national. He was arrested on 8th May, 1964 under S. 104 of the Customs Act 1952. He was ordered to be released on bail by the High Court of Punjab on 18th May, 1964. Before his release he was detained under S. 3(2) (g) of the Foreigners Act. Subsequently a case was filed against the petitioner in the court of the Sub-Divisional Magistrate New Delhi under S. 5 of the Registration of Foreigners Act 1939 and he was convicted for the said offence on 29-1-1965 and sentenced to undergo six months Rigorous Imprisonment. While he was undergoing that sentence another Criminal case No. 862/3 of 1965 was fileagainst the petitioner in the court of Shri Dharam Dutt, S.D.M. New Delhi under S. 135 of the Customs Act. The petitioner pleaced guilty to the said offence and was convicted and sentenced to nine month's Rigorous Imprisonment and a fine of Rs. 2,000.00. The conviction was on 29-5-1965. The petitioner subsequently filed a Writ Petition in the Punjab High Court challenging his detention under Section 3(2)(g) of the Foreigners Act. This Writ Petition was dismissed on 14-1-1966. The petitioner filed a Writ petition in Supreme Court of India against the order of the Punjab High Court but the Supreme Court also dismissed his petition on 15th December, 1966. Then on 17-1-1967 a case was filed in the court of Miss K. Sen Gupta S.D.M. New Delhi against the petitioner and 17 other persons under (1) section 120-B Indian Penal Code . read with section 135 Customs Act and 23(1) (a) of the Foreign Exchange Regulations Act, (2) under S. 135 Customs Act and (3) 23(1) (a) Foreign Exchange Regulations Act read with Section 109/114 Indian Penal Code . A charge was framed against him in that case under (1) S. 120-B read with Section 135 of the Customs Act and S. 23(l)(a) of the Foreign Exchange Regulations Act to which the petitioner pleaded guilty and he was convicted for the said offence and was sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 2,000.00. This conviction was on 31st January, 1969. While this case was still pending another case was filed in the court of Shri N. C. Jain S.D.M. New Delhi on 18th March, 1968 against the petitioner and 45 other persons under (1) S. 120-B Indian Penal Code . read with section 135 Customs Act, section 167(81) Sea Customs Act and section 23(1-A) Foreign Exchange Regulations Act, (2) Section 135 Customs Act (3) Section 167(81) Sea Customs Act and (4) Section 23(1-A) Foreign Exchange Regulations Act. It is for the quashing of the proceedings in this criminal case that the petitioner has filed the present petition.

(3.) The petitioner's contention is that the offences for which he is charged in the impugned proceedings are the same, as those for which he was convicted by Miss K. Sen Gupta, S.D.M. 'New Delhi and that he could not therefore be tried again for the same offence. He is invoking the provisions of S. 403 Criminal Procedure Code . as well as S. 561-A Criminal Procedure Code . On the other hand it is the case of the respondents that the offences for which the petitioner is now being prosecuted are not the same as and are different from the offences for which the petitioner was already convicted. It therefore, becomes necessary to examine in some detail the facts and circumstances of the several proceedings that have been taken against the petitioner ever since he was arrested on 8th May, 1964.