Leo Roy Frey vs The Superintendent, District Jail, Amritsar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: 126 and 127 of 1957

Decision Date: 31 October 1957

Coram: S.K. Das, A.K. Sarkar, Sudhi Ranjan

In the matter of Leo Roy Frey versus the Superintendent of the District Jail at Amritsar, the Supreme Court of India delivered its judgment on 31 October 1957. The bench that heard the case included Chief Justice Sudhi Ranjan Das, along with Justices Ayyar, T.L. Venkatarama Das, S.K. Das, A.K. Sarkar, A.K. Bose and Vivian. The reported citation for the decision is 1958 AIR 119 and 1958 SCR 822. The issues before the Court arose under the Sea Customs Act 1878 (VIII of 1878), specifically sections 167(8) and 186, the Indian Penal Code (Act XLV of 1860) section 120B, and Article 20(2) of the Constitution of India.

According to the headnote, the petitioners had been found guilty under section 167(8) of the Sea Customs Act. The Collector of Central Excise and Land Customs confiscated currency and other goods that had been in their possession and imposed heavy personal penalties on them. Subsequent to these actions, the Customs authorities filed complaints against the petitioners before the Additional District Magistrate. The complaints invoked section 120B of the Indian Penal Code, read together with sections 23 and 23B of the Foreign Exchange Regulations Act 1947, as well as section 167(8) of the Sea Customs Act and other relevant provisions of the two Acts. The Magistrate initially granted bail, but the petitioners were unable to provide the required security and therefore remained in judicial custody.

By way of two petitions filed under Article 32 of the Constitution, the petitioners sought writs of certiorari and/or prohibition to set aside the proceedings pending before the Magistrate, and they also prayed for writs of habeas corpus for their production before the Court. Their argument was that, in view of Article 20(2) of the Constitution, they could not be prosecuted and punished twice for the same offence, and that the continuing proceedings before the Additional Magistrate infringed the protection guaranteed by that constitutional provision.

The Court held that the petitioners’ contention lacked merit and ordered the dismissal of the petitions. It observed that the Collector’s imposition of confiscation and penalties under section 167(8) of the Sea Customs Act was a judicial act, but this fact did not attract the protection of Article 20(2). The Court further explained that section 186 of the Sea Customs Act does not bar the infliction of any additional punishment to which the person may be liable under any other law. In reaching its decision, the Court referred to the earlier case of F.N. Roy v. Collector of Customs, Petition No. 438 of 1955, decided on 16 May 1957. The Court clarified that criminal conspiracy is an offence under section 120B of the Indian Penal Code and not under the Sea Customs Act; consequently, the petitioners could not be charged with conspiracy before the Collector. It explained that conspiracy is a separate offence, complete in itself even before the target crime is attempted or completed, and it does not form an ingredient of that crime. The Court also cited United States v. Rabinowith, 1915 238 U.S. 78, for illustrative purposes.

In the original jurisdiction, the Court addressed Petitions Nos. 126 and 127 of 1957, which were filed under Article 32 of the Constitution of India for the enforcement of fundamental rights. Counsel N. C. Chatterjee and Nanak Chand represented the petitioners, while M. C. Setalvad, Attorney‑General for India, and B. Sen and R. H. Dhebar represented the respondents. The order was delivered on 31 October 1957 by the Chief Justice, Justice DAS.

The petitioners, in separate applications, sought two forms of relief. First, they requested a writ of certiorari or prohibition directing the Assistant Collector of Land Customs and Central Excise, Amritsar, to produce the records of the case against the two petitioners and Moshe Baruk that were before the Additional District Magistrate of Amritsar, and they asked that the proceedings be set aside. Second, they prayed for a writ of habeas corpus ordering the Court to command the production of the petitioners’ persons so that they could be dealt with according to law.

The factual background, as recorded, proceeded as follows. Leo Roy Frey bought a motor vehicle bearing registration number C.D. 75 TT 6587 from an officer of the American Embassy in Paris. In May 1957, Frey sold the same vehicle to Thomas Dana, and the car was transferred to Dana’s name on 18 May 1957. Both men then arranged travel from Geneva to Bombay through the American Express Company, sailing on the vessel s.s. ASIA, which also carried the car.

The two men arrived in Karachi on 11 June 1957, stayed briefly, and then flew together to Bombay, reaching the city on the same day. They lodged at the Ambassador Hotel in Bombay from 11 June until the afternoon of 19 June 1957, when they departed by plane and arrived in Delhi that evening. In Delhi they occupied room I of the Janpath Hotel, remaining there from 19 June to 29 June 1957. After the car, which had been booked by rail from Bombay to Delhi, arrived in Delhi, the petitioners left the capital together in the automobile on 22 June 1957 and travelled to Amritsar, staying overnight before reaching the Attari Road Land Customs Station on 23 June 1957 as they prepared to proceed to Pakistan.

At the customs station, officials required the petitioners to complete Baggage Declaration Forms listing all articles in their possession, including any goods subject to export‑trade control, foreign‑exchange restrictions, or duty. Both Frey and Dana filled out and signed their respective forms and submitted them to the customs authorities. On the same day, the customs officers conducted personal searches of each petitioner and discovered certain items of currency and movable property that had not been declared. Among the undisclosed items were a pocket radio and a time‑piece recovered from petitioner Dana, and a.22‑bore pistol together with forty‑eight live cartridges of the same bore recovered from petitioner Frey. Both petitioners were arrested on 23 June 1957.

During the inspection carried out at the customs station, the officials recovered a pocket radio and a time‑piece from petitioner Dana, and they also recovered a pistol of 22‑bore together with forty‑eight live cartridges of the same bore from petitioner Frey. Both individuals were placed under arrest on the same day, that being 23 June 1957. On 30 June 1957 the two petitioners were questioned, and the car in which they had travelled was subjected to a thorough search. The intensive and meticulous inspection uncovered a concealed chamber situated above the petrol tank. When the chamber was opened, police discovered Indian currency amounting to Rs 8,50,000 and United States dollars totaling 10,000, which were seized as contraband.

Subsequently, on 7 July 1957 a notice was issued to petitioner Dana under section 167(8) of the Sea Customs Act, directing him to show cause why a penalty should not be imposed upon him and why the seized articles should not be confiscated. A comparable notice was served on petitioner Frey on 9 July 1957. Both petitioners submitted written representations and also appeared in person to be heard. On 24 July 1957 the Collector of Central Excise and Land Customs made an order that the entire sum of currency and the motor car be confiscated, while providing petitioner Dana an option to redeem the car upon payment of Rs 50,000. The order also directed that all articles other than the currency recovered from the vehicle be confiscated, with the possibility of redemption upon payment of Rs 100.

The Collector concluded that each of the two petitioners was equally culpable of an offence punishable under section 167(8) of the Sea Customs Act and therefore imposed a personal penalty of Rs 25,00,000 on each petitioner, to be paid within two months from the date of the order or within any extended period that the adjudicating officer might allow. On 12 August 1957 the Assistant Collector of Customs and Central Excise, Amritsar, lodged a complaint against the two petitioners and a third individual, Moshe Baruk of Bombay, before the Additional District Magistrate, Amritsar, invoking section 23 read with section 8 of the Foreign Exchange Regulations Act, 1947 and section 167(81) of the Sea Customs Act, 1878, as amended by the Sea Customs (Amendment) Act, 1955. A fresh complaint was later filed by the same Assistant Collector against the two petitioners and Mr Baruk before the same magistrate, this time invoking section 23 read with section 8 of the Foreign Exchange Regulations Act, 1947, section 167(81) of the Sea Customs Act, and section 120‑B of the Indian Penal Code, read in conjunction with sections 23/23‑B of the Foreign Exchange Regulations Act and section 167(81) of the Sea Customs Act. In addition, a separate proceeding was initiated against petitioner Frey under the Indian Arms Act for possession of the pistol and the cartridges contrary to section 20 of that Act, and he was ordered to be released on bail of Rs 10,000 with one surety.

In the matter concerning the Arms Act, the petitioner had supplied the required material. The trial for that case was completed before the Additional District Magistrate, yet the court’s final orders had not been rendered. The two petitioners, Frey and Dana, were each initially ordered to be released on bail, with amounts set at five lakh rupees and ten lakh rupees respectively. The High Court subsequently reduced these figures to two lakh rupees for Frey and five lakh rupees for Dana. Because neither petitioner was able to provide the security demanded, they remained in judicial custody. They have now filed applications seeking the reliefs previously outlined. Their principal argument before the Court is that their liberty has been taken away in a manner that does not conform to the procedure established by law. Ordinarily, presenting the order or warrant that led to the apprehension and detention of an under‑trial prisoner would satisfy a petition for habeas corpus. The petitioners, however, maintain that in this instance their fundamental right under Article 20(2) of the Constitution has been infringed. They rely on the decisions of the Calcutta High Court in Assistant Collector v. Soorajmal and the Madras High Court in Collector of Customs v. A.H.A. Rahiman, asserting that when the Collector issues a confiscation and penalty order under section 167(8) of the Sea Customs Act, the Collector is acting in a judicial capacity. Consequently, they argue, the petitioners have already been tried and punished for the offence of importing or attempting to export goods that are prohibited or restricted under Chapter IV of the Sea Customs Act, and therefore they cannot be prosecuted and punished again for the same offence. The petitioners contend that the pending proceedings before the Additional District Magistrate violate the protection granted by Article 20(2). The proposition that the Collector’s confiscation and penalty order amounts to a judicial act has been affirmed by this Court in the judgment reported in (1952) 56 C.W.N. 452, pronounced on 16 May 1957 in F.N. Roy v. Collector of Customs. No issue has been raised regarding the ceiling on the penalty that may be imposed under section 167(8), and the Court is not required to opine on that point. Nevertheless, the mere fact that the Collector acted judicially is not determinative and does not automatically invoke the safeguard of Article 20(2). The remaining question is whether the petitioners’ present case falls within the ambit of Article 20(2), which protects a person from being prosecuted and punished for the same offence more than once. The Court must determine whether the petitioners had already been prosecuted and punished for the very offence for which they are now facing proceedings before the Additional District Magistrate. The earlier proceedings before the Customs authorities were conducted under section 167(8) of the Sea Customs Act.

Under section 186 of the Sea Customs Act, an award of confiscation, penalty or duty by a customs officer does not bar the imposition of punishment that the person may incur under any other law. The petitioners are now charged with an offence punishable under section 120B of the Indian Penal Code, namely criminal conspiracy. Criminal conspiracy is created and made punishable by the Indian Penal Code and is not an offence listed in the Sea Customs Act. A conspiracy to commit a crime is a distinct offence from the crime that is its object because the conspiracy occurs before the crime and is completed prior to attempt or execution of the crime. Conversely, the commission of the crime, whether attempted or completed, does not contain the element of conspiracy as an essential ingredient. Accordingly, the two offences are separate and independent of each other. This view is consistent with the decision of the United States Supreme Court in United States v. Rabinowich, 238 U.S. 78 (1915), which held that conspiracy and the substantive crime are distinct. The offence of criminal conspiracy was not the subject of the proceedings before the Collector of Customs, and therefore the petitioners cannot be said to have already been prosecuted and punished for the same offence. Although the Collector used the terms “punishment” and “conspiracy,” those words were employed only to indicate that each petitioner's conduct fell within section 167(8) of the Sea Customs Act. The petitioners were never, and could not have been, charged with criminal conspiracy in the customs proceedings. Consequently, the protection afforded by Article 20(2) of the Constitution cannot be invoked in this case. The Court therefore did not consider it necessary to refer to Maqbool Hussain v. State of Bombay. It also declined to examine whether the language of Article 20 applies only to criminal proceedings before a court of law or a judicial tribunal as ordinarily understood. Having found no other points raised, the Court dismissed the applications.