Full Judgment Text
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PETITIONER:
COLLECTOR OF CUSTOMS, NEW DELHI
Vs.
RESPONDENT:
GHULAM SARWAR AND ORS.
DATE OF JUDGMENT:
24/03/1970
BENCH:
[V. BHARGAVA AND C. A. VAIDIALINGAM, JJ.]
ACT:
Criminal trial--Delay in putting up conspiracy case--Accused
praying for separation of trial of his case and pleading
guilt--Procedure to be followed by Court.
HEADNOTE:
The respondent was a Pakistani national and was arrested on
8th May 1964, and immediately after his arrest he made a
confession before a Magistrate. The confession disclosed
that- he was involved in two different and separate
conspiracies with various co-accused. But the customs
authorities assumed that there was only one conspiracy and
that the respondent had incorrectly shown two separate
conspiracies. Three cases were filed against him charging
him with offences under the Registration of Foreigners Act,
1939, and Sea Customs Act, 1878, and the offence of
conspiracy and other offences under various enactments. He
was convicted on his plea of guilty and sentenced to various
terms of imprisonment. He was also detained under the
Foreigners Act, 1946. After fuller investigation, the
respondent was again put up for trial for the second
conspiracy and for offences under other Acts. The
respondent moved the High Court for quashing the proceedings
on the ground that he having been convicted for a conspiracy
could not be retried for the same offence again. He also
pleaded various alternatives in the event of the Court not
quashing the proceedings, and one of the pleas was that
proceedings against him should be separated from other co-
accused and his plea of guilty be accepted.
The High Court quashed the proceedings.
In appeal to this Court, HELD : (1) Since the second trial
was for a different and distinct conspiracy, the High
Court’s order was not justified. [117 D]
(2) Since the offences for which the respondent was being
tried were likely to have far-reaching implications, it was
not in the public interest that the trial should be given up
merely because, he had already served various terms of
imprisonment, or there has been delay in putting him up for
trial for the second conspiracy, especially when there was
no material to suggest that the prosecution deliberately
prolonged the investigation or delayed bringing up the case
before Court. Further, the trial for the second conspiracy
could not have been combined with the earlier one, because,
the two are separate and distinct. [117 D-E]
(3) In the circumstances however, his alternative plea of
separating his case from the other co-accused should be
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accepted and the prosecution allowed a period of not more
than two months for producing the evidence so that the court
could on a consideration of the evidence, either frame a
charge or discharge the respondent. The contention of the
prosecution that he should be tried along with the others to
enable the court to take his confession into consideration
against the co-accused is, not a ground
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for joint trial especially when the respondent could be
called as a witness against the other co-accused. 1118 B)
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.207 of
1969.
Appeal by special leave from the judgment and order dated
September 11, 1969 of the Delhi High Court in Criminal Misc.
(Main) No. 53 of 1969.
V. A. Seyid Muhammad and S. P. Nayar, for the appellant.
R. Jethamalani, Harjinder Singh, Kumar Mehta, H. K. Puri
and Rameshwar Nath, for respondent No. 1.
The Judgment of the Court was delivered by
Bhargava, J 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 and 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 s. 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 s. 135 of the Customs Act, for an offence under
section 120-B of the Indian Penal Code read with S. 135 of
the Customs’ Act and s. 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 Indian Penal Code. 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.
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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 s. 120, I.P.C., read with
s. 135 of the Customs Act, section 167(81) of the Sea
Customs Act and section 23 (1-A) of the Foreign Exchange
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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 s. 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.
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
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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 lost 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
Allau-din. The respondent, in the confession, made
statements which indicated that these two conspiracies were
distinct and separate ones, though a few of the persons
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involved in the two conspiracies were common. In fact, the
confession showed that, at one stage, he was given in-
structions 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 Allau-din was one of the
conspirators in that conspiracy and was not the head of that
116
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 Art. 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
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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.
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 Art. 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
K.V.Krishnamurthy Iyer and others v. The State of Madras(1),
and The State of Bihar v. Hiralal Kejriwal and another(2) in
which this Court declined to ,order a re-trial in exercise,
of its powers under Art. 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 th
interest of justice did not require that there should be a
fresh trial. Reliance was also placed on the views
expressed by ’Bombay High Court in Chudaman Narayan Patil v.
State of Maharashtra(3). On the basis of the views
expressed in those
(1) A.I.R. 1954 S.C. 406.
(2) [1960] 1 S.C.R. 726.
(3) A.I.R. 1969 Bom. 1.
117
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 s. 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.
We have considered these aspects, but we do not think that.
this is a fit case where we should uphold the order of the
HighCourt quashing the proceedings which were validly
started and which related to an entirely distinct and
separate offence of cons-piracy apart from the one for which
the respondent has already been convicted. The offences for
which he is now being tried. are of such a nature that they
may have far-reaching implications, and we do not think that
it will be in the public interest that the trial should be
given up merely because there has been delay in, sending up
the case. The case related to a conspiracy and we can very
well appreciate that investigation of an offence of cons-
piracy is necessarily prolonged and requires considerable
work by the investigating authorities, so that certain
amount of delay is bound to take place in putting the case
before the court. In the present case, the matters appear
to have been complicated by the fact that, at the earlier
stages, the authorities were under the impression that there
was one single conspiracy. We are unable to find any
material to suggest that the prosecution have deliberately
prolonged the investigation or delayed bringing the case
before the court. We may also add that we are not impressed
by the argument advanced by Mr. Jethmalani that the
respondent could have been charged for this conspiracy even
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in the earlier case in which he was convicted on 3 1 st
January, 1969 under the provisions of section 236 of the
Code of Criminal Procedure, because the two conspiracies,
according to the prosecution, are two entirely separate and
distinct ones and are not based on allegations of identical
acts having been committed by the offenders. In this case,
therefore, it appears to be appropriate that the respondent
should be tried for the conspiracy on the basis of which
proceedings are being taken which have been quashed by the
High Court.
We, however, consider that, in view of the long delay and in
view of the circumstance that the respondent has been
pleading
118
guilty, his second alternative request in the writ petition
is justified. Merely because he is a co-accused with 45
others there is no justification that he should be subjected
to a prolonged trial, specially because we have been assured
by the counsel for the respondent that the respondent is
still sticking to his confession and will, very likely,
plead guilty as soon as a charge is framed against him. In
the circumstances, while allowing the, appeal and setting
aside the order of the High Court, we direct that the trial
of the respondent shall be separated from all other 45 co-
accused and will be proceeded with separately. Dr. Seyid
Muhammad, counsel for the appellant, opposed this separation
of the trial of .the respondent on the ground that, if there
is a joint trial, the confession of the respondent can be
taken into account by the court trying the case against his
co-accused which will not be permissible if the respondent
is separately tried.’. That is no ground for unnecessarily
delaying the trial of the, respondent specially when, if the
prosecution desire, they can either apply to the Court to
make the respondent an approver or can even produce the
respondent as a witness in the case against others after his
,conviction. In fact, if any of these two alternative
courses is adopted. it will be fairer to the other co-
accused who will then have an opportunity of cross-examining
the respondent before his statement is taken in evidence
against them.
On our enquiry, Dr. Seyid Muhammad stated that it will be
’possible for the prosecution to produce sufficient evidence
to make out a prima facie case on the basis of which a
charge can be framed by the court, if a period of two months
is allowed to the prosecution to produce evidence in the
trial. On behalf of the respondent, a request was made that
we. should fix a timelimit for completion of the whole trial
in view of the long delay. We, however, consider that it is
sufficient to make a direction that the Magistrate will
allow a period of not more than two months to the
prosecution to produce evidence to make out a prima facie
case against the respondent, calculated from the date on
which .the copy of our order is received by the trial Court.
On the expiry of the period of two months, the Court will
proceed either to frame a charge or to discharge the
respondent in accordance with his judgment whether the
evidence produced does or does not make out a prima facie
case to justify framing of a charge. It is to this extent
only that we are laying down a time-schedule for the trial
Court which we consider necessary to avoid possible
harassment of the respondent.
V.P.S. Appeal allowed directions for retrial given
119
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