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TMI Blog2009 (2) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . could have been made had the trial taken place in India. Mr. Tulsi submitted that this Court had in the case of Maqbool Husssain v. State of Bombay 1983ECR1598D(SC) observed that the provisions of Article 20 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 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 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 prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 which would have the effect of defeating the very purpose of protection against double jeopardy. Reiterating his submissions with regard to the 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 cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said position. 16. Mr. Tulsi urged that the stand taken on behalf of the State that Article 20 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 consign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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 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 Hirabharti AIR 1924 Bom 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 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 of the General Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegedly 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 20 of the Constitution of India and Section 300 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. 26. In our view, the offence for which the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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