PALU Vs. ASST COLLECTOR CENTRAL EXCISE

JUDGEMENT

(1.) AS common questions are involved in these Original petitions, they can be disposed of by this common judgment. Petitioners now face prosecutions for offences falling under S. 85 (1) of the Gold Control Act, 1968 (for short'the Act' ). Proceedings were already initiated against them under S. 71 and 74 of the Act for confiscation and imposition of penalty in regard to gold articles allegedly seized' from them. The Collector of Central excise has passed orders of confiscation and penalty by two different proceedings against the petitioners. The appeals filed by them before the appellate Tribunal against the orders of confiscation and imposition of penalty were disposed of. When prosecution proceedings were initiated against them in the criminal court for Economic Offences, they have filed these Original petitions to stall such proceedings as they infringe the protection guaranteed in Art. 20 (2) of the Constitution of India. The launching of the prosecution is sought to be justified under S. 77 of the Act which reads thus: "no confiscation made or penalty imposed under this act shall prevent the infliction of any other punishment to which the person affected thereby is liable under the provisions of this Act or under any other law". Petitioners have prayed in these Original Petitions, for a declaration that S. 77 of the Act is unconstitutional, void and inoperative, besides the prayer for quashing the proceedings now initiated against them before the criminal court.

(2.) THE contention is mainly based on Art. 20 (2) of the constitution of India. "no person shall be prosecuted and punished for the same offence more than once". It was urged that since the proceedings taken against the petitioners under S. 71 and 74 of the Act amount to prosecution and punishment, the petitioners are not liable to be subjected to a second prosecution.

(3.) THE contention cannot be accepted for more than one reason. THE first reason is that the order of confiscation or imposition of penalty is to be passed by an administrative officer like Collector of Customs. It is against his order that the aggrieved party can file the appeal. Whatever be the composition or nature of formation of the appellate body, it can only deal with the order passed by the administrative officer. Secondly, the mere addition of a judicial member in the Appellate Tribunal will not make it a court much less a criminal court. Thirdly, the decision of the Appellate tribunal confirming or annulling or modifying the original order would not transform the order into one of conviction or acquittal and hence the question of punishment does not arise in such proceedings. S. 77 of the Act which stood valid before the addition of a judicial member to the Appellate Tribunal will continue to be valid thereafter also. Even if S. 77 is absent in the body of the act, there is no bar in initiating prosecution proceedings for the offences inspite of the pendency or conclusion of proceedings under S. 71 and 74 of the act. For the aforesaid reasons, I cannot accept the contention that the addition of a judicial member to the appellate forum would necessitate a changed approach to the question from what has been well settled by the Supreme court in the decisions cited supra. Hence I reject the petitioners' contention that S. 77 of the Act is unconstitutional. Original Petitions are accordingly dismissed. Issue carbon copy on usual terms. . .