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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1660 OF 2007
Jitendra Panchal ...Appellant
Vs.
Intelligence Officer, NCB & Anr. ..Respondents
J U D G M E N T
ALTAMAS KABIR, J.
1. This appeal raises an interesting legal
conundrum involving the laws of the United States of
America, hereinafter referred to as `the USA', and
the domestic laws as existing in India. At the
heart of the controversy is the concept of double
2
jeopardy within the meaning of Article 20(2) of the
Constitution of India and Section 300(1) of the Code
of Criminal Procedure, hereinafter referred to as
`the Code'.
2. In order to appreciate the questions which have
been posed in this appeal, it will be necessary to
briefly set out the factual background in which they
arise.
3. On 17th October, 2002, officers of the US Drug
Enforcement Agency, along with officers of the
Narcotics Bureau, India, seized a consignment of
1243 pounds equivalent to 565.2 Kgs. of Hashish in
Newark, USA. During the investigation, it appears
to have transpired that one Niranjan Shah and the
appellant were engaged in trafficking Hashish out of
India into the USA and Europe and that the seized
contraband had been smuggled out of India by the
appellant and the said Niranjan Shah along with one
Kishore. The appellant was arrested in Vienna in
Austria by officers of the Drug Enforcement Agency,
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
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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
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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
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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
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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) ................................................................................."
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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
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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
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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
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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
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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
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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
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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."
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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.
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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
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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
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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.
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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
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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 :
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"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
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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
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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.
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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,
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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
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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.
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(ALTAMAS KABIR)
..................J.
(MARKANDEY KATJU)
New Delhi,
Dated: 3.2.2009.
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