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9. The learned Special judge for C.B.I. on a careful and meticulous appreciation of the evidence and material made available on record convicted the appellants as noted herein above. The High Court on re-appreciation of the evidence confirmed the conviction but modified the sentence as noted herein above.

Submissions:

10. Now we shall proceed to consider the submissions made by the learned senior counsel Shri K.T.S. Tulsi appearing on behalf of the appellant - Monica Bedi (A-3). The learned senior counsel submitted that the appellant has been tried and convicted by a competent court of jurisdiction at Lisbon for being in possession of fake passport and, therefore, her trial and conviction for possessing the same passport before the C.B.I. Court at Hyderabad amounts to double jeopardy and in violation of Article 20(2) of the Constitution of India and as well under Section 300 Cr.P.C. The learned senior counsel further submitted that there is no evidence of appellant's involvement in any of offence whatsoever. His further submission was that the appellant has been denied the benefit of Section 428 of the Code of Criminal Procedure, in as much as she has neither been given the benefit of the period of sentence undergone by her in Portugal nor has she been given the benefit of the complete period pursuant to sentence in Portugal i.e. after 18th September, 2004, which she is legally entitled to.

11. We have also heard the learned counsel appearing on behalf of Shaik Abdul Sattar (A-5), Mohd. Yunis (A-7) and D. Gokari Saheb (A-8).

12. Shri P.P. Malhotra, learned Additional Solicitor General and Shri I. Venkata Narayana, learned senior counsel supported the impugned judgment. Both of them have submitted that Article 20 (2) has no application whatsoever to the facts on hand.

Double Jeopardy

13. Now we shall take up the first contention of Shri Tulsi as to whether the appellant's guaranteed fundamental right under Article 20 (2) has been infringed? Article 20 (2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once.

15. The fundamental right guaranteed under Article 20 (2) has its roots in common law maxim nemo debet bis vexari - a man shall not be brought into danger for one and the same offence more than once. If a person is charged again for the same offence, he can plead, as a complete defence, his former conviction, or as it is technically expressed, take the plea of autrefois convict. This in essence is the common law principle. The corresponding provision in the American Constitution is enshrined in that part of the Fifth Amendment which declares that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. The principle has been recognised in the existing law in India and is enacted in Section 26 of the General Clauses Act, 1897 and Section 300 of the Criminal Procedure Code, 1973. This was the inspiration and background for incorporating sub- clause (2) into Article 20 of the Constitution. But the ambit and content of the guaranteed fundamental right are much narrower than those of the common law in England or the doctrine of `double jeopardy' in the American Constitution.

17. What is the meaning of expression used in Article 20 (2) "for the same offence"? What is prohibited under Article 20 (2) is, the second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable. In Leo Roy Frey vs. Superintendent District Jail, Amritsar3, petitioners therein were found guilty under Section 167 (8) of the Sea Customs Act and the goods recovered from their possession were confiscated and heavy (1954) SCR 1150 (1958) SCR 822 personal penalties imposed on them by the authority. Complaints thereafter were lodged by the authorities before the Additional District Magistrate under Section 120B of the Indian Penal Code read with provisions of the Foreign Exchange Regulations Act, 1947 and the Sea Customs Act. The petitioners approached the Supreme Court for quashing of the proceedings pending against them in the court of Magistrate inter alia contending that in view of the provisions of Article 20 (2) of the Constitution they could not be prosecuted and punished twice over for the same offence and the proceedings pending before the Magistrate violated the protection afforded by Article 20 (2) of the Constitution. This Court rejected the contention and held that criminal conspiracy is an offence under Section 120B of the Indian Penal Code but not so under the Sea Customs Act, and the petitioners were not and could not be charged with it before the Collector of Customs. It is an offence separate from the crime which it may have for its object and is complete even before the crime is attempted or completed, and even when attempted or completed; it forms no ingredients of such crime. They are, therefore, quite separate offences. The Court relied on the view expressed by the United States, Supreme Court in United States vs. Rabinowith4. In The State of Bombay vs. S.L. Apte5, this Court laid down the law stating that if the offences were distinct there is no question of the rule as to double jeopardy as embodied in Article 20 (2) of the Constitution being applicable. It was the case where the accused were sought to be punished for the offence under Section 105, Insurance Act, after their trial and conviction for the offence under Section 409, Penal Code, this Court held that they were not sought to be punished for the same offence twice but for two distinct offences constituted or made up of different ingredients and therefore the bar of Article 20 (2) of the Constitution or Section 26 of the General Clause Act, 1897, was not applicable. This Court made it clear that the emphasis is not on the facts "alleged in the two complaints but rather on the (1915) 238US 78.