Kerala High Court
C.J. Palu vs The Assistant Collector Of Central ... on 4 April, 1990
Equivalent citations: 1991CRILJ980
Author: K.S. Paripoornan
Bench: K.S. Paripoornan
JUDGMENT Jagannadha Raju, J.
1. This is an appeal by the petitioner against the judgment dated 2-8-1989 in O.P. No. 4444 of 1988-D. The learned single Judge, Thomas, J., pronounced a common judgment in O.P. Nos. 4444 of 1988 and 5898 of 1989. The main contention in the O.P. was that Section 77 of the Gold (Control) Act is unconstitutional, void and inoperative. The petitioner having been proceeded against Under Section 71 and Section 74 of the Gold (Control) Act (hereinafter referred to as the "Act") for confiscation and imposition of penalty in regard to gold articles seized, those proceedings and the imposition of penalty would amount to prosecution and punishment, and hence filing a criminal prosecution by virtue of Section 77 offends Article 20(2) of the Constitution of India. The principle of double jeopardy would apply and the prosecution in the criminal court is incompetent. The learned single Judge placing reliance upon the decisions of the Supreme Court in Maqbool Hussain v. State of Bombay, AIR 1953 SC 325: 1953 Cri LJ 1432, Thomas Dana v. State of Punjab, AIR 1959 SC 375: 1959 Cri LJ 392 and Asst. Customs Collector, Bombay v. L. R. Melwani, AIR 1970 SC 962 : 1970 Cri LJ 885, came to the conclusion that the proceedings for confiscation and imposition of penalty under the Act are not a prosecution and punishment and hence the subsequent prosecution in a criminal court is not hit by Article 20(2) of the Constitution. Aggrieved by that judgment, the present appeal is filed.
2. In this appeal, Shri Roy Chacko, appearing for the appellant, raised three arguments : (1) Section 77 of the Gold (Control) Act violates the protection given under Article 20(2) of the Constitution of India, and hence it is ultra vires and void; (2) the imposition of penalty under the Act amounts to a punishment within the meaning of Article 20(2) of the Constitution of India. Hence in the case of a person against whom a penalty has been imposed, there cannot be a separate prosecution for offences under the Act on the same set of facts; and (3) After the amendment of the Gold (Control) Act, and after the constitution of Customs, Excise and Gold (Control) Appellate Tribunal, there is a complete change in the law. The Appellate Tribunal is a judicial Tribunal having the trappings of a court. In such a case, the person on whom the penalty has been levied by the Tribunal is a person on whom a punishment is imposed by a court. Hence the bar under Article 20(2) of the Constitution of India is attracted. Shri. Roy Chacko relies upon the dissenting judgment of Subba Rao, J. in Thomas Dana v. State of Punjab, AIR 1959 SC 375 and certain observations of Hegde, J. in Asst. Collector of Customs, Bombay v. L. R. Melwani, AIR 1970 SC 962 in support of his arguments. Shri Roy Chacko contends that while considering cases of double jeopardy what the court has to see is the substance of the previous proceedings rather than the legal form of the proceedings and the nomenclature given to it under the statute. He also contends that the earlier cases, namely, Maqbool Hussain's case, AIR 1953 SC 325, and Thomas Dana's case, AIR 1959 SC 375, and L. R. Melwani's case, AIR 1970 SC 962 are all cases which dealt with actions under the Sea Customs Act. The passing of the Customs Act in replacement of Sea Customs Act and the various other changes brought about in the law clearly indicate that the powers which were not available to the Sea Customs Officers are now available to the officers of the Customs Act. Hence the proceedings which now culminated in imposing a penalty would amount to a prosecution and punishment.
3. On behalf of the respondents, Shri. K. Prabhakaran contends that under the scheme of the Gold (Control) Act there are different proceedings, departmental proceedings known as adjudication proceedings which will ultimately culminate in passing orders for confiscation and imposition of penalty, and prosecution for offences under the Act. The adjudication proceedings are conducted departmentally, and what the Tribunal considers is only an appeal against the departmental proceedings and the order passed in adjudication proceedings. There is no question of a prosecution before the Departmental officers or the Appellate Tribunal. He also contends that though the earlier decisions were rendered under the Sea Customs Act, the scheme of the legislation has not altered by reason of repealing the Sea Customs Act and enacting the Customs Act. The same scheme is adopted by the Gold (Control) Act. Chapter XIII of the Act deals with confiscation and penalties, Chapter XIV deals with adjudication and appeals, while Chapter XV deals with offences under the Act and prosecution and trial of those cases which would culminate in punishment. In view of the clear distinction made for the various types of proceedings, it cannot be said that a person on whom a penalty has been imposed and whose case has been considered by the Appellate Tribunal can be considered as a person prosecuted and punished for an offence. The protection afforded by Article 20(2) of the Constitution is not available to him, and it is open to the Department to prosecute him in a criminal court separately. By Section 77 the legislature clearly laid down that no confiscation made or penalty imposed under this Act shall prevent infliction of any other punishment to which the person affected thereby is liable under the provisions of this Act or under any other law. Considering the clear legislative intent expressed in Section 77, there is absolutely no scope for invoking the plea of double jeopardy in this case.
4. We shall now deal with the contentions of the petitioner and the Addl. Standing Counsel to find out whether the petitioner is entitled to the protection of Article 20(2) of the Constitution of India; whether the statutory changes brought in have rendered the law profounded by the Supreme Court in Maqbool Hussain v. State of Bombay, AIR 1953 SC 325; Thomas Dana v. State of Punjab, AIR 1959 SC 375 and Asst. Customs Collector, Bombay v. L. R. Melwani, AIR 1970 SC 962 inapplicable to a case covered by Section 77 of Gold (Control) Act; and, whether Section 77 of the Gold (Control) Act is ultra vires the Constitution as it offends Article 20(2) of the Constitution of India.
5. Before we consider the merits of the contentions, it would be worthwhile to examine the scheme of the Act and the various concepts used in this Act. Section 2(a) defines "adjudicating authority" as meaning an authority competent to pass any order or decision under this Act. The definition specifically excludes the Collector (Appeals) or Appellate Collector. The "appellate tribunal" is defined as the Customs, Excise and Gold (Control) Appellate Tribunal constituted Under Section 129 of the Customs Act. The words "confiscation" "penalty" and "punishment" are not defined Under Section 2. Section 4 deals with appointment and functions of administrator and Gold Control Officers. We are not much concerned with Chapters III to XL Chapter XII deals with entry, search, seizure and arrest. Chapter XIII deals with confiscation and penalties. Chapter XIV deals with adjudication and appeals. Chapter XV deals with offences and their trial. It is significant to note that three different types of penal proceedings are contemplated by this Act. The first one is confiscation. S.71 provides for confiscation of gold in respect of which any provision of the Act or Rule is contravened. Section 72 contemplates confiscation of conveyances or animals used for transport of gold in violation of the Act being confiscated. Section 73 provides for the adjudicating officer giving an option to the owner to pay a fine in lieu of confiscation and the total quantum of fine shall not exceed the value of the article whose confiscation is ordered. The second concept is penalty. Section 74 lays down that the person whose action renders gold liable for confiscation shall be liable to a "penalty" not exceeding five times the value of the gold or one thousand rupees, whichever is more. Section 75 is in the nature of a residuary provision regarding penalties for offences for which no express penalty is provided for under the Act and the Rules. Section 77 uses all the three concepts "confiscation", "penalty" and "punishment". The Section reads as follows:
"77. Confiscation or penalty, not to interfere with other punishments.-- No confiscation made or penalty imposed under this Act shall prevent the infliction of any other punishment to which the person affected thereby is liable under the provisions of this Act or under any other law."
It is an admitted fact that adjudication proceedings took place and they ended in an order for confiscation and for imposition of penalty as evidenced by Ext. P1. Subsequently, by reason of Section 77, Ext. P2 complaint was filed in the criminal court for prosecuting the petitioner, and his son the principal offender. Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 is a decision of the Constitution Bench of the Supreme Court, and it deals with the scope and ambit of the protection given to a citizen under Article 20(2) of the Constitution of India. The court dealt with a case where the person was first dealt with in departmental proceedings under the Sea Customs Act, 1878, confiscated the gold and he was imposed a fine giving him an option to pay the same in lieu of confiscation, and then he was prosecuted before the Chief Presidency Magistrate. After an exhaustive consideration of the origin and development of the double jeopardy clause, the court observed in paragraph 18 as follows at page SC 328: AIR 1953:
"...........in order that the protection of Article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a Court of law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a. departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath."
6. The court further observed as follows :--
"The very wording of Article 20 and the words used therein:-- 'convicted', 'commission of the act charged as an offence', 'be subjected to a penalty', 'commission of offence', 'prosecuted and punished', 'accused of any offence' would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a Court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure."
The court observed in paragraph 17 at page 330 as follows:
"We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a Court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy."
The court further observed in paragraph 18 as follows:
"It therefore follows that when the Customs Authorities confiscated the gold in question neither the proceedings taken before the Sea Customs Authorities constituted a prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by a Court or judicial tribunal on the appellant. The appellant could not be said by reason of these proceedings before the Sea Customs Authorities to have been 'prosecuted and punished' for the same offence with which he was charged before the Chief Presidency Magistrate......"
7. This statement of the law has been affirmed by the subsequent decisions of the Supreme Court. The same question of Article 20(2) of the Constitution of India came to be considered by another Constitution Bench of the Supreme Court in Venkataraman v. Union of India, AIR 1954 SC 375 : 1959 Cri LJ 993. In that decision their Lordships were dealing with a case where the petitioner faced an enquiry under Public Servants (Enquiries) Act, and was subjected to certain punishments departmentally. When he was subsequently prosecuted, he raised the defence of Article 20(2) of the Constitution of India, and pleaded that he cannot be subjected to double jeopardy. After dealing with the Historical development of the law relating to the double jeopardy and the law as it found place in the Indian Constitution and the other Indian laws, the Supreme Court observed in paragraph 5 at page 377 as follows:
"In order to enable a citizen to invoke the protection of Clause (2) of Article 20 of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words 'prosecuted and punished' are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted."
Then the Court pointed out the difference between the Indian Law and the American Law which it found to be of a wider amplitude. The Court also referred to Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 and observed that decision with sufficient fullness has pronounced upon the scope and meaning of the guarantee implied in Article 20(2) of the Constitution. In paragraph 9 dealing with some of the judicial trappings which the Commissioner appointed under Act 37 of 1850 enjoyed, the Supreme Court observed that those powers of the Commissioner do not lead to the conclusion that the enquiry made and concluded under Act 37 of 1850 amounts to prosecution and punishment for an offence as contemplated by Article 20(2) of the Constitution. In order to arrive at a proper decision on this point, it is necessary to examine the entire background of the provision relating to the enquiry into the conduct of Public servants and to ascertain the exact scope and purpose of the enquiry as is contemplated by Act 37 of 1850 and the ultimate result that flows from it. In paragraph the Supreme Court observed at page SC 328 & 329 AIR 1953 :
"..........that the words 'prosecution' and 'punishment' have no fixed connotation and they are susceptible of both a wider and a narrower meaning; but in Article 20(2) both these words have been used with reference to an 'offence' and the word 'offence' has to be taken in the sense in which it is used in General Clauses Act as meaning 'an act or omission made punishable by any law for the time being in force'. It follows that the prosecution must be in reference to the law which creates the offence and the punishment must also be in accordance with what that law prescribes."
8. Thomas Dana v. State of Punjab, AIR 1959 SC 375 is a decision of the Constitution Bench of the Supreme Court which also dealt with Article 20(2) of the Constitution and the principle of double jeopardy. The majority judgment was delivered by B. P. Sinha, J., and the dissenting judgment was delivered by Subba Rao, J. The court was dealing with a case under the Sea Customs Act and Foreign Exchange Regulation Act. The majority held that the proceedings before the Sea Customs Authorities Under Section 167(8) of the Sea Customs Act are not prosecution within the meaning of Article 20(2) of the Constitution. After dealing elaborately with the scheme of the Customs Act, and the various concepts of offences, guilty, punishment, penalty, and the development of the law regarding double jeopardy in America and England, the Court observed in paragraph 18 at page 383 as follows:
"18. In view of these considerations, and particularly in view of the decision of this Court in the case of 1953 SCR 730: (AIR 1953 SC 325 (Maqbool Hussain's case), there is no escape from the conclusion that the proceedings before the Sea Customs Authorities Under Section 167(8) were not 'prosecution' within the meaning of Article 20(2) of the Constitution. In that view of the matter, it is not necessary to pronounce upon the other points which were argued at the Bar, namely, whether there was a 'punishment' and whether 'the same offence' was involved in the proceedings before the Revenue Authorities and the Criminal Court. Unless all the three essential conditions laid down in Clause (2) of Article 20 are fulfilled, the protection does not become effective. The prohibition against double jeopardy would not become operative if any one of those elements is wanting."
In the dissenting judgment, Subba Rao, J. after going into the nature of the proceedings before the Sea Customs Authorities and the meaning of the words 'punishment' and 'penalty' which according to His Lordship can be frequently used as synonymous with the nature of the punishments prescribed under the Indian Penal Code, the learned Judge observed in paragraph 27 as follows:
"The word 'prosecuted' is comprehensive enough to take in a prosecution before an authority other than a magisterial or a criminal Court. Having regard to the historical background arestricted meaning has been placed upon it by this Court in 1953 SCR 730: (AIR 1953 SC 325)."
Then dealing with the powers of the Customs Officers and the nature of the proceedings as compared to the proceedings under the Cr. P.C. the learned Judge observed in paragraph 31 as follows:
"A fundamental right is transcendental in nature and it controls both the legislative and the executive acts.....The law therefore must be carefully scrutinized to ascertain whether a fundamental right is infringed. It is not the form but the substance that matters. If the legislature in effect constitutes a judicial tribunal, but calls for it an authority, the tribunal does not become any the less a judicial tribunal. Therefore the correct approach is first to ascertain with exactitude the content and scope of the fundamental right and then to scrutinize the provisions of the Act to decide whether in effect and substance, though not in form, the said right is violated or curtailed. Otherwise, the fundamental right will be lost or unduly restricted in our adherence to the form to the exclusion of the content."
Then dealing with the question whether the penalties prescribed for various offences in the third column of Section 167 are punishments within the meaning of Article 20, His Lordship observed as follows:
"Section 167 clearly indicates that penalty is punishment inflicted by law for its violation for doing or failing to do something that is the duty of the party to do. Section 167 therefore defines a criminal act and fixes a penalty or punishment for that act. The two words 'penalty' and 'punishment' are interchangeable and they convey the same idea."
Then his Lordship held that a customs authority, when it functions Under Section 167 of the Act is a judicial tribunal and the magistrate who convicts and punishes a person for the infirngement of some of the provisions of Section 167 of the Act is a judicial tribunal. His Lordship expressed his final opinion at page 388 in para 35 as follows:
".......It is not necessary to consider the decisions cited in support of the contention that for the application of the principle of double jeopardy the offence for which a person is prosecuted and punished in a second proceeding should be the same in respect of which he has been prosecuted and punished at an earlier stage. That fact is self-evident from Article 20(2) of the Constitution itself..... The question of identity of offence is one to be determined on the fact and circumstances of a particular case. One of the test is whether an offence for which a person was earlier prosecuted takes in all the ingredients of the offence, the subject-matter of the second prosecution.:....."
His Lordship ultimately came to the conclusion that the prosecution and punishment by the Magistrate directly infringes the fundamental right under Article 20(2) of the Constitution.
9. Though the judgment in Thomas Dana's case was pronounced in November, 1958, and the dissenting Judge tried to give a wider and liberal interpretation to the protection contained in Article 20(2) of the Constitution of India, till this day, no subsequent decision of the Supreme Court has adopted the reasoning of the dissenting judgment and the Majority decision still holds the field.
10. In Romesh Chandra Mehta v. State of W.B., (1969) 2 SCR 461: AIR 1970 SC 940 :1970 Cri LJ 863 a Constitution Bench of the Supreme Court examined the scope of the provisions of the Sea Customs Act, 1878 and the scope of the later enactment, the Customs Act of 1962, and pointed out that the scheme of the Sea Customs Act is continued in the later enactment namely, the Customs Act, 1962, and that there is only the conferment of a few additional powers on the officers to enable them to do certain acts which are in the nature of police functions and which are necessary for an effective investigation of the offences under the Act. The nature of the adjudication proceedings remains the same. The court observed that the basic scheme of the 1878 Act is not altered. A customs officer under the new Act continues to remain a revenue officer primarily concerned with the detection of smuggling and enforcement and levy of proper duties and prevention of entry into India of dutiable goods without payment of duty and of goods of which entry is prohibited. He does not on that account become a police officer, for, even under the 1962 Act, a formal accusation is deemed to be made only when a complaint is made before a competent Magistrate to try the person guilty of the infraction under any of the Sections 132 to 135 of the Act.
11. Shri. Roy Chacko relies upon a passage in Jeffers v. United States, 53 L Ed 2d. 168 at page 170 (432 US 137) para 37. In that decision the Supreme Court of United States of America dealt with a case of the first indictment being against the defendant and nine co-defendants who conspired and distributed heroin and cocaine during a specified period. Subsequently the defendant was indicted for a second time for continuing criminal enterprise in concernt with five or more persons during the same specified period to distribute and possess heroin and cocaine. In such a case, the second prosecution was upheld in spite of the defence of double jeopardy, as the second indictment is for a continuing offence. But on the ground that the total punishment exceeded the maximum punishment that can be imposed, certain reliefs were granted. The principles of that case have no application to the facts of our case.
12. Asst. Collector Customs v. Malwani, (1969) 2 SCR 438 : AIR 1970 SC 962 : 1970 Cri LJ 885 is another decision which dealt with a case of adjudication proceedings before a Collector of Customs, the subsequent prosecution in a criminal court and the defence of double jeopardy. In this decision His Lordship, Hegde, J. observed as follows:
"In order to get the benefit of Section 403 Criminal Procedure Code or Article 20(2) it is necessary for an accused person to establish that he had been tried by a 'court of competent jrisdiction' for an offence and he is convicted or acquitted of that offence and the said acquittal is in force. If that much is establish, it can be contended that he is not liable to be tried again for any other offence for which a different charge from the one made against him might have been made under Section 236 or for which he might have been convicted Under Section 237."
13. The learned Judge further observed as follows:
"It has been repeatedly held by this Court that adjudication before a Collector of Customs is not a 'prosecution' nor the Collector of Customs a 'Court'."
Relying upon the following passage "prosecution in this context would mean an initiation or starting of a proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure", Shri. Roy Chacko contends that after the creation of the Customs Excise and Gold (Control) Appellate Tribunal, when the adjudication proceedings are considered by the Appellate Tribunal, which is a judicial tribunal, with all the trappings of a court, the conferment of penalty and confiscation would amount to a punishment and hence the petitioner is entitled to plead the bar of Article 20(2) of the Constitution of India.
14. It is true that some of the observations made in this decision are the source of inspiration for the very elaborate and learned arguments advanced by Shri. Roy Chacko in this appeal. If the entire judgment is read, we find that the Supreme Court only reiterated what was earlier laid down in Maqbool Hussain's case, AIR 1953 SC 325 and Thomas Dana's case, AIR 1959 SC 375. The court has not laid down any new principle.
15. Shri. Roy Chacko places reliance upon the decision of the Allahabad High Court in R. Prasad Mohan Lal v. I.T.A. Tribunal, AIR 1970 All 620. In that decision the Allahabad High Court was dealing with a prosecution launched subsequent to penalties being imposed by the Income-tax Authorities. The Full Bench by a majority of 2 to 1 observed at page 624 as follows:
"This Article (Article 20(2)) affords protection against conviction and punishment for an offence by a court of law. Penalties are imposed by the Income-tax authorities and cannot be regarded as punishment awarded for an offence. In fact, prosecution for an offence under the Income-tax Act is provided separately under the two Acts. Section 52 of the old Act provides for a prosecution and conviction before a Magistrate with regard to offences enumerated therein. Similar provisions are to be found in the new Act. In Chapter XXII of the new Act, The Supreme Court in Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 held that the Article 20 contemplates proceedings of the nature of criminal proceedings and the prosecution in this context means an initiation of proceedings of a criminal nature. The first part of Article 20(1) prohibits a conviction while the second part deals with penalty that may be inflicted on conviction by way of punishment.
15A. The first contention based on the alleged violation of Article 20 is accordingly rejected."
The dissenting Judge observed at page 635 as follows:
"56. It is well-known that the Legislature can impose both a criminal as well as civil sanction for the same act or omission.........
57. Chapter XXI of the 1961 Act deals with penalty. A separate Chapter No. XXII provides for offences and prosecutions. Penalty is imposed by the revenue authorities. Prosecution for the offences has to be launched, in view of Section 202 in the regular criminal court, which alone can convict and sentence. The authorities impose penalty if they are satisfied that a default has been committed. The revenue does not have to prove its case beyond all reasonable doubt. In prosecution under Chapter XXII the Revenue will have to prove its case beyond all reasonable doubt, because that is a fundamental principle prevailing in the criminal courts. All these features indicate that prosecutions under Chapter XXII are criminal proceedings, but penalty proceedings constitute a civil sanction. They are Revenue in nature, to which Article 20 of the Constitution does not apply."
This decision supports the arguments advanced for the respondents.
16. A. C. Companies v. P. N. Sharma, AIR 1965 SC 1595 lays down various tests which indicate whether a particular forum is a court or a tribunal. Bachawat, J. observed in para 40 at page 1608 as follows :
".........In what sense did the Constitution makers use the word 'tribunal' in that Article? By what sign or distinctive attribute are we to recognise a tribunal?....... The word cannot have the popular meaning of a Court of Justice, for obviously a tribunal contemplated by Article 136 is an authority other than a regular Court of Justice. I think that the context of Article 136 supplies the proper meaning of this word. Article 136 concerns the regulation of the judicial power of the State vested in the Courts and other authorities. The great purpose of Article 136 is the recognition of the basic principle that one court having Supreme judicial power in the Republic will have appellate power over all courts and adjudicating authorities vested with the judicial powers of the State throughout the territory of India barring those constituted by or under any law relating to the Armed Forces. In this background, the basic test of a tribur within the meaning of Article 136 is that it is an adjudicating authority (other than a court) vested with the judicial powers of the State. I think that all the decided cases substantially lay down this test....."
17. In paragraph 41 His Lordship observed that the courts alone have no monopoly of this judicial power. An authority other than a court vested with the judicial power of the State in this sense is regarded as a tribunal within Article 136. This decision is of no help, to the petitioner in the present case. As pointed out earlier, the adjudication proceedings-culminating in confiscation order and imposing penalty do not constitute a prosecution for an offence. The penalty imposed cannot be treated as equivalent to a punishment. The Gold (Control) Act contemplates different concepts of penalty and punishment. There is no substantial change by bringing into existence the Customs, Excise and Gold (Control) Appellate Tribunal. It should be remembered that the order of adjudication is in departmental proceedings of a civil character, or to be more precise, in the nature of a revenue proceedigs. The order passed by the Collector of Customs is an adjudication order and against that order an appeal lies to the Appellate Tribunal under Section 81. Though the Appellate Tribunal has certain trappings; of a judicial tribunal by reason of the Appellate Tribunal now being prosided over by a person trained in the judicial process, the nature of the Tribunal is not altered. The Appellate Tribunal only sits in appeal against the order of adjudication which is the result of departmental proceedings. The petitioner cannot be prosecuted for an offence under the Act before the Tribunal. It has no powers of a criminal court. The proceedings culminating in an appeal before the Tribunal cannot be considered to be the ending of a prosecution.
18. Relying upon the decisions of the Supreme Court, referred to hereinabove that the protection of Article 20(2) is not available to he petitioner in this case and the subsequent prosecution launched under Ext. P2 complaint is perfectly valid. We also hold that Section 77 does not violate any of the provisions of the Constitution. As pointed out by the Allahabad High Court in R. Prasad Mohan Lal v. I.T.A. Tribunal, AIR 1970 All 620, it is open to the legislature to provide for both civil and criminal sanctions for the same act or omission. The confiscation and penalty levied are revenue proceedings and they are lot criminal proceedings. Section 77 clearly lays down that no confiscation made or penalty imposed shall prevent the infliction of any other punishment to which the person affected thereby is liable under the provisions of the Act or under any other law. The intention of the legislature is made clear in this Section that the legislation contemplated both departmental proceedings as well as prosecution in a criminal court. As indicated earlier, Chapter XV deals with offences and their trial, and this chapter is incontradistinction to Chapter XIV which deals with adjudication. It is also in contradistinction with Chapter XIII which deals with confiscation and penalties. It is our considered view that the prosecution launched under Ext. P2 complaint is perfectly competent and the protection of Article 20(2) is not available to the petitioner.
19. Before we part with this case, we would like to place on record our appreciation for the exhaustive preparation and lucid arguments advanced by Shri. Roy Chacko We are also thankful to Shri. Prabhakaran for the way in which he met all the arguments raised by the petitioner's counsel in a most analytical manner.
20. In the result, we dismiss the Writ Appeal, Each party shall bear its own costs.