Jitendra Panchal vs Intelligence Officer, Ncb & Anr

USA on 5th December, 2002 and was extradited to the 3

USA. Soon, thereafter, on 25th March, 2003, the

Deputy Director General of the Narcotics Control

Bureau, hereinafter referred as `the NCB', visited

the USA and recorded the appellant's statement.

Subsequently, on 9th April, 2003, officers of the

NCB arrested Niranjan Shah, Kishore Joshi and Irfan

Gazali in India and prosecution was launched against

them in India. On 5th September, 2003, a complaint

was filed by the NCB before the learned Special

Judge, Mumbai, against Niranjan Shah, Kishore Joshi

and two others under Sections 29/20/23/27A/24 read

with Section 8(c)/12 of the Narcotic Drugs and

Psychotropic Substances Act, 1985, hereinafter

referred to as `the NDPS Act', in connection with

the above-mentioned incident. While the said

Niranjan Shah and others were being proceeded with

before the learned Special Judge in Mumbai, the

appellant, who had been extradited to the USA, was

tried before the District Court at Michigan, USA, in

Case No.04 CR 80571-1. On pleading guilty of the

charge of conspiracy to possess with intention to

distribute controlled substances, which is an

offence under Section 846 of Title 21, United States 4

Code (USC) Controlled Substances Act, the appellant

was sentenced to imprisonment on 27th June, 2006,

for a total term of 54 months. After serving out the

aforesaid sentence, the appellant was deported to

India on 5th April, 2007, and on his arrival at New

Delhi, he was arrested by officers of the NCB and

was taken to Mumbai and on 10th April, 2007, he was

produced before the learned Chief Metropolitan

Magistrate and was remanded to judicial custody.

4. At this juncture, it may be indicated that

although the appellant could have been prosecuted

for other offences under Title 21 USC, the other

charges against the appellant were dropped as he had

pleaded guilty to the offence of conspiring to

possess controlled substances.

5. On 25th April, 2007, on the appellant's

application that the proceedings against the

appellant in India would amount to double jeopardy,

the learned Special Judge, Mumbai, rejected the

appellant's contention upon holding that the charges

which had been dropped against the appellant in the 5

proceedings in the USA had not been dealt with while

imposing sentence against him in the District Court

of Michigan, USA. The Special Judge extended the

judicial custody of the appellant and subsequently

rejected his prayer for bail on 17th May, 2007.

6. The appellant then approached the Bombay High

Court on 11th June, 2007, praying for quashing of

the proceedings initiated by the NCB and also

praying for interim bail on the ground of double

jeopardy. On 13th September, 2007, a complaint was

filed by the NCB against the appellant in the Court

of Special Judge, Mumbai, against which the

appellant filed Criminal Writ Petition No.1038 of

2007, inter alia, praying for quashing of the said

complaint. The Bombay High Court dismissed the writ

petition upon holding that the ingredients of the

offences with which the appellant had been charged

in India were totally different from the offences

with which he had been charged and punished in the

USA. The High Court also held that the acquisition

and possession of Hashish in India and importation

of the same into India from Nepal and the export of 6

the contraband out of India, as well as sale thereof

in the USA, could not be said to be the subject

matter of an offence under Section 846 read with

Section 841 of Title 21 USC Controlled Substances

Act, nor was the appellant subjected to prosecution

in respect of any of such offences in the USA.

Consequently, conspiracy for all those acts in India

was not the subject matter of prosecution in the

District Court, New York, USA. Similarly, the

Special Judge, Mumbai, was not competent to deal

with the offence under Section 846 read with Section

841 of Title 21 USC Controlled Substances Act, nor

was the District Court in New York competent to take

cognizance of any of the offences alleged to have

been committed under the NDPS Act, 1985. The High

Court came to the conclusion that merely because the

same set of facts gives rise to different offences

in India under the NDPS Act and in the USA under its

drug laws, the different circumstances and the law

applicable would not debar the Special Judge,

Mumbai, from dealing with matters which attracted

the provisions of the local laws and hence the 7

application of the principle of double jeopardy was

not available in the facts of the present case.

7. It is against the rejection of such plea of

double jeopardy by the High Court that the present

appeal has been filed.

8. Appearing in support of the appeal, Mr. K.T.S.

Tulsi, learned Senior Advocate, firstly submitted

that the appeal of the appellant in India is barred

under Article 20(2) of the Constitution of India and

also under Section 300(1) of the Code on the ground

that the appellant has already been tried and

convicted by a Court of competent jurisdiction for

the same offence arising out of the same set of

facts. For the sake of reference Article 20(2) of

the Constitution is set out hereunder:

"Article 20. Protection in respect of conviction for offences :-

(1) ................................................................................. (2) No person shall be prosecuted and punished for the same offence more than once;

(3) ................................................................................."

8 Similarly, Section 300(1) of the Code also

prohibits a second trial if the person has either

been convicted or acquitted and is also reproduced

hereinbelow :-

"300. Person once convicted or acquitted not to be tried for same offence. - (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof."

9. Mr. Tulsi urged that the judgment of the United

States District Court has already been filed in the

proceedings and is part of the records of this

appeal. He submitted that there is also no dispute

that the appellant is being sought to be tried on

the same set of facts for which he has already been

convicted by a competent Court of the USA and has

undergone the sentence imposed on him. It was 9

submitted that the offences for which the appellant

was now being charged in India, are not only

identical but in respect of which a charge under

Section 221 Cr.P.C. could have been made had the

trial taken place in India.

Mr. Tulsi submitted that this Court had in the

case of Maqbool Husssain Vs. State of Bombay (1953

SCR 730) observed that the provisions of Article 20

(2) of the Constitution should be liberally

interpreted to cover situations which were not

specifically enumerated therein. He also urged that

the term "offence" is not defined in the

Constitution and, therefore, while relying on the

definition as indicated in Section 3(37) of the

General Clauses Act, it must be understood to mean

any act or offence which has been made punishable in

law.

10. Elaborating on his aforesaid submission, Mr.

Tulsi submitted that the offences which the

appellant is alleged to have committed were all part

of one continuing transaction and could not be split 10

up for the purposes of trial in the USA and again

separately in India. According to Mr. Tulsi,

prosecution under the other provisions other than

Section 846 of Title 21 USC Controlled Substances

Act, were also available to the trying authority in

the United States but the same were not proceeded

with and it must, therefore, be accepted that the

charges thereunder had been abandoned by the

prosecution and no separate proceeding could lie in

India for the same offence and/or offences. In this

connection, Mr. Tulsi referred to the letter which

had been addressed by the Assistant United States

Attorney to the learned Advocate for the appellant

in Mumbai on 25th April, 2007, in which it had been

stated that the appellant had been prosecuted in the

United States for his role in a drug transaction

involving Mr. Niranjan Shah. It was also indicated

that the appellant was arrested in Austria and

thereafter extradited to the United States. The

Assistant US Attorney thereafter went on to observe

that at the time of his arrest the appellant could

have been prosecuted for importation of controlled

substances into the United States, attempted 11

importation of controlled substances into the United

States, aiding and abetting importation of

controlled substances into the United States,

conspiring to import controlled substances into the

United States and conspiring to possess controlled

substances with the intent to distribute them

further. However, since the appellant pleaded

guilty, he was charged with conspiring to possess

controlled substances to which he has been convicted

and sentenced and the other charges were in effect

dropped. It was lastly observed that the appellant

had gone on to serve his sentence in an American

prison and that he had completely paid his debt to

society and could resume a productive life.

11. According to Mr. Tulsi, offences for which the

appellant was being prosecuted in India are

essentially the same for which he had already been

tried and convicted in the USA. Mr. Tulsi urged that

since India was a signatory to the International

Covenant of Civil and Political Rights adopted by

the United Nations on 16th December, 1966, it had to

abide by Article 14(7) of the said Covenant which 12

has the force of law and is required to be enforced

by the Indian Courts in regard to a situation where

there is no statutory provision to the contrary in

the domestic law.

12. Mr. Tulsi then urged that as far as Article 20

(2) of the Constitution of India is concerned, the

same is not confined to national borders which would

have the effect of restricting its applicability

within India. He submitted that neither Article 20

(2) of the Constitution of India nor Section 300 of

the Code confines the jurisdiction of the competent

Court to within the national boundaries. The only

requirement for invoking the protection of the

aforesaid provisions is that the earlier trial would

have had to be conducted by a Court of competent

jurisdiction. Mr. Tulsi urged that since the

Constitution itself does not prescribe that the

trying Court had to be located within the country,

such a constraint should not be read into Article 20

(2) which would have the effect of defeating the

very purpose of protection against double jeopardy.

Reiterating his submissions with regard to the 13

decision of this Court in Maqbool Hussain (supra),

Mr. Tulsi urged that so long as the previous

prosecution was before a Tribunal, which decides

such matters judicially on evidence on oath, which

it is authorized by law to administer the

requirements of clause (2) of Article 20 must be

deemed to have been satisfied. Furthermore, once it

is found that the foreign Court had valid

territorial jurisdiction over the cause and was

legally competent to award a sentence, the judgment

of the foreign Court would have to be taken note of

and would have to be deemed to have satisfied the

provisions of Sections 41 and 42 of the Indian

Evidence Act, 1872.

13. Mr. Tulsi further urged that the only condition

precedent for application of the principle of double

jeopardy is that the person concerned has been

prosecuted and punished for the same offence. No

other ingredient could be added and since the

judgment of the US District Court establishes that

the appellant had been prosecuted and punished for

the same offence, it must be held that the situation 14

is covered by the prohibition against double

jeopardy embodied in Article 20(2) of the

Constitution, even though such judgment may have

been rendered by a foreign Court.

14. In this regard Mr. Tulsi referred to the

decision of this Court in P.K. Unni Vs. Nirmala

Industries & Ors. (1990 (2) SCC 378), wherein this

Court has held that even if there was a defect or an

omission in a Statute, the High Court could not

correct such defect or supply such omission since

the Court cannot add words to a Statute or read

words into it which are not there, especially when

the literal reading produces an intelligible result.

This Court also observed that where the language of

the Statute leads to manifest contradictions with

regard to the apparent purpose of the enactment, the

Court can adopt a construction which will aid the

obvious intention of the legislature and as stated

by Lord Denning, in doing so, "a Judge must not

alter the material of which the Act is woven, but he

can and should iron out the creases."

15

15. Mr. Tulsi also referred to the Constitution

Bench decision of this Court in Assistant Collector

of Customs & Anr. vs. L.R. Malwani & Anr. (1969 (2)

SCR 438) in which it was observed that the doctrine

of autrefois convict or autrefois acquit which was

embodied in Section 403 of the Code prior to its

amendment, now numbered as Section 300 of the Code

along with the benefit of Article 20(2) of the

Constitution would be available to an accused person

to establish that he had been tried by a Court of

competent jurisdiction for an offence and that he

was convicted or acquitted of that offence and the

said conviction or acquittal was in force. The

Constitution Bench then went on to observe that if

that much was established, it could be contended

that he was not liable to be tried again for the

same offence nor on the same facts for any other

offence for which a different charge from the one

made against him might have been made. Certain other

decisions on this point were also referred to by Mr.

Tulsi, which reiterates the said position. 16

16. Mr. Tulsi urged that the stand taken on behalf

of the State that Article 20(2) of the Constitution

was not attracted in the instant case in view of the

fact that the appellant was tried and convicted for

a separate offence in the USA and that he was being

tried in India for a different case altogether, was

factually incorrect and was also contrary to the

prosecution case itself. According to Mr. Tulsi, a

plain reading of the criminal complaints filed

against Niranjan Shah and others and the appellant

herein, along with the statements of all the accused

persons recorded under Section 67 of the NDPS Act,

left little doubt that the appellant came into the

picture or rather the appellant was brought into the

picture only after the consignment had reached the

USA. Even the role ascribed to the appellant by the

prosecution was that co-accused Niranjan Shah had

contacted the appellant to find a buyer for the

consignment which was lying in a transport godown at

New Jersey in the USA. He urged that in Complaint

No.173 of 2007 which had been initiated against the

appellant, it was indicted that Niranjan Shah had

contacted the appellant and had informed him that a 17

consignment of pickles containing Hashish concealed

in it was lying in a transport godown at New Jersey

and asked the appellant to find a buyer for the

same. Even in the statement made by Niranjan Shah

under Section 67 of the NDPS Act on 9th April, 2003,

he had indicated that he had been informed by one

Irfan Gazali about the consignment and he had

thereafter contacted the appellant to find a buyer

for the same.

17. Mr. Tulsi concluded on the note that the facts

on which the appellant had been tried and prosecuted

in the USA being the same as the ones in respect of

which he was now being tried in India, the

constitutional safeguard under Article 20(2) read

with Section 300 of the Code was clearly attracted

to the facts of the instant case and the proceedings

initiated against the appellant in India are,

therefore, liable to be quashed.

18. On the other hand, appearing for the respondent

authorities, learned senior counsel Mr. Shekhar

Naphade submitted that the ngredients and punishment 18

of offences under Sections 29, 8(c), 12, 20(b)(ii)

(C), 23 and 24 of the NDPS Act, 1985 were different

from the offences contemplated under Sections 846

and 841 of Title 21 USC Controlled Substances Act.

Mr. Naphade submitted that after serving the

sentence imposed upon him by the US authorities, the

appellant was deported to India on 9th April, 2007,

and was arrested by the Narcotic Control Bureau on

his arrival in Mumbai. Thereafter, prosecution was

launched against him under the provisions of the

NDPS Act, 1985.

19. Mr. Naphade submitted that the offence in

respect of which the appellant was tried and

convicted in the United States was different from

the offence alleged to have been committed in India.

While the American Courts have tried and punished

the appellant for conspiracy to possess with intent

to distribute a controlled substance viz. Hashish in

America, the appellant not being a citizen of

America, was not and could not have been tried by

the American Courts for the offences allegedly

committed by the appellant on Indian soil. Mr. 19

Naphade submitted that one of the allegations

against the appellant is that in conspiracy with his

co-conspirators, he imported Hashish from Nepal into

India, was in possession of the contraband in India

and was responsible for the sale and export of the

said Hashish out of India. Mr. Naphade submitted

that these offences have taken place within Indian

territory and American Courts could not have tried

him for the same. Mr. Naphade urged that the

inevitable conclusion is that the appellant was not

being tried for the same offence for which he had

been tried and convicted in the USA.

20. Mr. Naphade submitted that in view of the

above, the doctrine of double jeopardy contained in

Article 20(2) of the Constitution or even the bar of

Section 300 of the Code could not be applied to the

case of the appellant. Mr. Naphade submitted that

Article 20 of the Constitution contemplates an

offence committed under the municipal laws and not

any offence triable under the law of a foreign

country. In this regard, reference was made to a

decision of the Bombay High Court in Rambharti 20

Hirabharti (AIR 1924 Bombay 51) in which the Bombay

High Court had come to the conclusion that Indian

Courts could not take cognizance of an offence

committed by the accused in a foreign country in

respect of a foreign law.

21. Mr. Naphade's next contention was that the

definition of the expression "offence" in Section 2

(n) of the Code must necessarily mean an offence

under the law which is in force within India as is

also the case under Section 3(38) of the General

Clauses Act. According to Mr. Naphade, since an

offence under the American law is not an offence

under the Indian law for the purposes of Section 3

(38) of the General Clauses Act, the same was not

contemplated by Article 20 of the Constitution.

The said proposition has been subsequently endorsed

in several subsequent judgments.

22. In this regard, reference was lastly made to

Article 367 of the Constitution of India, Sub-

section (1) whereof provides as follows : 21

"367. Interpretation - (1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act or the legislature of the Dominion of India.

(2) ............................................................................................. (3) ............................................................................................."

Mr. Naphade urged that since the expression

"offence" had not been defined in the Constitution

but in the General Clauses Act, Article 20 of the

Constitution has to be understood by reading the

word "India" into the Article. Referring to Sections

3 and 4 of the Indian Penal Code, Mr. Naphade

contended that under the said provisions also a

person could be tried for an offence committed

beyond India for which he was liable to be tried

under the Indian laws.

23. Referring to the complaint which had been made

by the Narcotics Control Bureau against the

appellant, Mr. Naphade submitted that each of the 22

said offences could be tried separately and trial of

a part of the offence in the USA gave rise to a

conflict between Legal Realism and Natural Law. It

was also pointed out that the NDPS Act, 1985,

extends to the whole of India and also applies to

all citizens of India outside India. Hence, while

the appellant may have been proceeded against in the

USA in respect of a part of the offences relating to

introduction of the controlled substances in the USA

with the intention of distributing the same, the

other portions of the transaction which originated

in India could be tried separately in India as was

being done in the instant case. Mr. Naphade urged

that in view of the severalty of the offences

relating to the contraband from its introduction

into India and thereafter export to the USA,

different portions thereof could be tried separately

in the USA and also in India and, in any event, the

Courts in the USA would have no jurisdiction over

the offences allegedly committed on Indian soil and

vice-versa. It was submitted that the High Court

had not committed any error in rejecting the

contention of the appellant in relation to Article 23

20(2) of the Constitution of India and Section 300

(1) of the Code.

24. Mr. Ravindra Keshavrao Adsure, appearing for

the State of Maharashtra, adopted Mr. Naphade's

submissions and added that the offence for which the

appellant was being tried in India was a distinct

offence which was separate from the offence for

which the appellant had been tried and convicted in

the USA. Mr. Adsure submitted that since the

punishment for different offences under the NDPS

Act, 1985, were completely different from those

contemplated under Title 21 USC Controlled

Substances Act, the plea of double jeopardy was

misconceived and was liable to be rejected.

25. We have carefully considered the submissions

made on behalf of the respective parties and we are

not inclined to interfere with the order of the High

Court rejecting the appellant's prayer for quashing

the proceedings initiated by the NCB and the prayer

for interim bail on the ground of double jeopardy. 24

26. In our view, the offence for which the

appellant was convicted in the USA is quite distinct

and separate from the offence for which he is being

tried in India. As was pointed out by Mr. Naphade,

the offence for which the appellant was tried in the

USA was in respect of a charge of conspiracy to

possess a controlled substance with the intention of

distributing the same, whereas the appellant is

being tried in India for offences relating to the

importation of the contraband article from Nepal

into India and exporting the same for sale in the

USA. While the first part of the charges would

attract the provisions of Section 846 read with

Section 841 of Title 21 USC Controlled Substances

Act, the latter part, being offences under the NDPS

Act, 1985, would be triable and punishable in India,

having particular regard to the provisions of

Sections 3 and 4 of the Indian Penal Code read with

Section 3(38) of the General Clauses Act, which has

been made applicable in similar cases by virtue of

Article 367 of the Constitution. The offences for

which the appellant was tried and convicted in the

USA and for which he is now being tried in India, 25

are distinct and separate and do not, therefore,

attract either the provisions of Section 300(1) of

the Code or Article 20(2) of the Constitution.

27. We are unable to agree with Mr. Tulsi that

apart from the offence for which the appellant had

been tried and convicted in the USA, he could also

have been tried in the U.S.A. for commission of

offences which were also triable under the NDPS Act,

1985, as the contents thereof are different from the

provisions of Title 21 USC Controlled Substances Act

which deal with possession and distribution of

controlled substances within the USA. On the other

hand, in our view, the provisions of Sections 3 and

4 of the Indian Penal Code would be apt in a

situation such as the present one. For the sake of

reference, Sections 3 and 4 of the Indian Penal Code

are extracted hereinbelow :-

"3. Punishment of offences committed beyond, but which by law may be tried within, India.--Any person liable, by any Indian law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the 26

same manner as if such act had been committed within India.

4. Extension of Code to extra-territorial offences. --The provisions of this Code apply also to any offence committed by--

(1) any citizen of India in any place without and beyond India;

(2) any person on any ship or aircraft registered in India wherever it may be."

28. It will be evident from the above that a person

liable by any Indian law to be tried for any offence

committed beyond India is to be dealt with under the

provisions of the Code, having regard to the fact

that the provisions of the Code would also apply to

any offence committed by any citizen of India in any

place within and beyond India.

29. In that view of the matter, we see no reason to

interfere with the order of the High Court impugned

in this appeal. The appeal is accordingly

dismissed.

..................J. 27

(ALTAMAS KABIR)

..................J. (MARKANDEY KATJU) New Delhi, Dated: 3.2.2009.