Holding

The offences for which the appellant was convicted in the United States are distinct from those charged in India, so the double jeopardy bar under Article 20(2) and Section 300(1) does not apply.

Summary

Jitendra Panchal was arrested in Austria, extradited to the United States and convicted under the US Controlled Substances Act for conspiracy to possess and distribute hashish, serving a 54‑month sentence. After deportation to India, he was arrested by the Narcotics Control Bureau and charged under the NDPS Act for importing hashish from Nepal into India and exporting it to the US. Panchal contended that the Indian proceedings violated the double jeopardy bar under Article 20(2) of the Constitution and Section 300(1) of the CrPC. The High Court rejected this claim, holding that the offences under US law and Indian law were distinct. The Supreme Court affirmed this view, stating that the US conviction pertained to a conspiracy to possess within the US, whereas the Indian charges relate to importation and export from Indian territory, making them separate offences; consequently, the double jeopardy provisions did not apply and the appeal was dismissed.

Issues considered

The applicability of Article 20(2) of the Constitution and Section 300(1) of the CrPC to prevent a second prosecution when the first conviction was by a foreign court.
Whether the offences under the US Controlled Substances Act and the Indian NDPS Act constitute the same offence for double jeopardy purposes.

Legislation cited

Code of Criminal Procedure, 1973s. s.300(1)
Constitution of Indias. 367, s. Art.20(2)
General Clauses Act, 1897s. 3(38)
Indian Penal Code, 1860s. 3, s. 4
Narcotic Drugs and Psychotropic Substances Act, 1985s. 12, s. 20, s. 23, s. 24, s. 27A, s. 29, s. 8(c)

Subjects

double jeopardyArticle 20(2)Section 300(1) CrPCextraterritorial jurisdictionNDPS ActControlled Substances Actextraditiondrug trafficking

Judgment

[2009) 1 S.C.R. 842

A JITENDRA PANCHAL +·
v.
INTELLIGENCE OFFICER, NCB & ANR.
(Criminal Appeal No.1660 of 2007)
FEBRUARY 3, 2009
B
[ALTAMAS KABIR AND MARKANDEY KATJU, JJ.]
)>.

Constitution of India, 1950 - Art. 20(2) - Code of Criminal
Procedure, 1973 - s.300(1) - Contraband item, allegedly
c smuggled out of India by appellant and others, seized in USA
- Appellant arrested in Vienna and extradited to USA -
Convicted under Title 21, United States Code (USC)
Controlled Substances Act with sentence for 54 months - After
serving the sentence, appellant deported to India whereupon
D he was arrested and remanded to judicial custody -
Complaint against appellant by Narcotics Control Bureau -
Plea of appellant that proceedings against him in India would
amount to double jeopardy - Held: Not tenable - Offences
for which appellant was tried and convicted in USA and for
E which he was being tried in India, were distinct and separate
and did not, therefore, attract either the provisions of s.300(1)
CrPC or Art.20(2) of Constitution -Appe{lant was tried in USA
in respect of a charge of conspiracy to possess a controlled
substance with intention of distributing the same, whereas in ,I.
.
India he was being tried for offences relating to importation
F
of contraband article from Nepal into India and exporting the
,..
same for sale in USA - While the first part of charges attracted
s.846 read with s.841 of Title 21 USC Controlled Substances
Act, the latter part, being offences under the NDPS Act was
triable and punishable in India - Narcotic Drugs and
G
Psychotropic Substances Act, 1985 - ss.29, 20, 23, 27A, 24
rlw s.8(c), 12- Penal Code, 1860- ss.3 and 4 - Criminal Law
- Double jeopardy.

A consignment of Hashish seized in USA, was
H 842
JITENDRA PANCHAL v. INTELLIGENCE OFFICER, NCB 843
&ANR.

allegedly smuggled out of India by appellant and two A
others. The appellant was arrested in Vienna, Austria and
extradited to the USA and thereafter tried before the
District Court at Michigan, USA. On pleading guilty of the
charge of conspiracy to possess with intention to
distribute controlled substances, which is an offence B
under Section 846 of Title 21, United States Code (USC)
Controlled Substances Act, the appellant was sentenced
to imprisonment for a total term of 54 months. After
serving out the aforesaid sentence, the appellant was
deported to India and on his arrival at New Delhi, he was c
arrested by officers of the NCB and remanded to judicial
custody. The Special Judge, Mumbai rejected the
contention of appellant that proceedings against him in
India would amount to double jeopardy. The NCB filed a
complaint against the appellant in the Court of Special
0
Judge, Mumbai.

Appellant filed Criminal Writ Petition praying for
quashing of the said complaint. The High Court
dismissed the writ petition holding that the ingredients of
the offences with which the appellant had been charged E
in India were totally different from the offences with which
he had been charged and punished in the USA. The High
Court held 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 Special Judge, F
Mumbai was not debarred from dealing with matters
which attracted the provisions of the local laws and the
application of principle of double jeopardy was not
available in the facts of the present case. Hence the
present appeal. G

Dismissing the appeal, the Court

HELD: 1. 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. The H
844 SUPREME COURT REPORTS (2009] 1 S.C.R.

A 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
B 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
C triable and punishable in India, having particular regard
to the provisions of Sections 3 and 4 of IPC 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
0
now being tried in India, are distinct and separate and do
not, therefore, attract either the provisions of Section
300(1) CrPC or Article 20(2) of the Constitution. [Para 26]
(856-H; 857-A-D]

E 2. One is unable to agree with the contention of
appellant 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,
F 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, the
provisions of Sections 3 and 4 of Indian Penal Code
G would be apt in a situation such as the present one. It is
evident from the said two provisions, 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
H the Code would also apply to any offence committed by
JITENDRA PANCHAL v. INTELLIGENCE OFFICER, NCB 845
&ANR.
......, any citizen of India in any place within and beyond India. A
[Paras 27 and 28] [857-E-F; 858-D]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1660 of 2007.

From the final Order and Judgment dated 19.9.2007 of the B
High Court of Judicature at Bombay in Criminal Writ Petition
-~ No. 1038 of 2007.

K.T.S. Tulsi, Shekhar Naphade, V. Hari Pillai Rishi
Malhotra, Prem Malhotra, Ayaz Khan, E.C. Agrawala, Mahesh c
Agarwala, Rishi Agrawala, Amit Sharma, Sanjay Kharde,
Ravindra Keshavrao Adsure, Naresh Kaushik, Sanjeev K.
Bhardwaj and S.N. Terdal for the appearing parties.

The Judgment of the Court was delivered by
D
AL TAMAS 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 jeopardy within the meaning of Article 20(2) E
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
F
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 G
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 H
846 SUPREME COURT REPORTS [2009) 1 S.C.R.

A 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
8 recorded the appellant's statement. Subsequently, on 9th April,
2003, officers of the NCB arrested Niranjan Shah, Kishore
Joshi and lrfan 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,
C Mumbai, against Niranjan Shah, Kishore Joshi and two others
under Sections 29/20/23/27 A/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
D 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,
E United States 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
~antence, the appellant was deported to India on 5th April, 2007,
and on his arrival at New Delhi, he was arrested by officers of
F 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
G 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
H
JITENDRA PANCHAL v. INTELLIGENCE OFFICER, NCB 847
& ANR. [ALTAMAS KABIR, J.]
. ~-
the proceedings against the appellant in India would amount A
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
proceedings in the USA had not been dealt with while imposing
sentence against him in the District Court of Michigan, USA. B
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 c
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 D
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 E
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 F
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 G
' ~
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
H
848 SUPREME COURT REPORTS (2009] 1 S.C.R.

·-t- •
A 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
B hence the 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.

c 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
D 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:-
E
(1) ..........................................

(2) No person shall be prosecuted and punished for the
same offence more than once;
F (3) ..................................................................... "

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 :-
G
"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
H
JITENDRA PANCHAL v. INTELLIGENCE OFFICER, NCB 849
& ANR. [AL TAMAS KABIR, J.)
.......
tried again for the same offence, nor on the same "tacts A
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."
B
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
c
the sentence imposed on him. It was 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. D

Mr. Tulsi submitted that this Court had in the case of
Maqboo/ 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 E
not specifically enumerated therein. He also urged that the term
"offence" is not defined in the Constitution and, therefore, while
Jr, 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. F
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, prosecutiqn G
~
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 H
850 SUPREME COURT REPORTS [2009] 1 S.C.R.

A 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
B 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
c arrest the appellant could have been prosecuted for importation
of controlled substances into the United States, attempted
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
0
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
E 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
F 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
G 14(7) of the said Covenant which 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
H Constitution of India is concerned, the same is not confined to
JITENDRA PANCHAL v. INTELLIGENCE OFFICER, NCB 851
& ANR. [ALTAMAS KABIR, J.)

national borders which would have the effect of restricting its A
. 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 8
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 C
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
0
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 E
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 F
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 is covered by the
prohibition against double jeopardy embodied in Article 20(2) G
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)
H
852 SUPREME COURT REPORTS (2009] 1 S.C.R.

A 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
B 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
C must not alter the material of which the Act is woven, but he
can and should iron out the creases."

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
D 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
E 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
F 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. Mr. Tulsi urged that the stand taken on behalf of the
G 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
H
JITENDRA PANCHAL v. INTELLIGENCE OFFICER, NCB 853
& ANR. [ALTAMAS KABIR, J.]

·-+ itself. According to Mr. Tulsi, a plain reading of the criminal A
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 B
had reached the USA. Even the role ascribed to the appellant
_,,i,. 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 c
been initiated against the appellant, it was indicted that Niranjan
Shah had contacted the appellant and had informed him that a
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 D
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 lrfan 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 E
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 F
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 of offences under G
__,. 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
H
854 SUPREME COURT REPORTS (2009) 1 S.C.R.

A 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
8
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
C 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. Naphade
submitted that one of the allegations against the appellant is
that in conspiracy with his co-conspirators, he imported Hashish
D 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
E 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
F 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
G 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 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.
H
JITENDRA PANCHAL v. INTELLIGENCE OFFICER, NCB 855
&ANR. [ALTAMAS KABIR, J.]
---t- 21. Mr. Naphade's next contention was that the definition A
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 B
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
c
of the Constitution of India, Sub-section (1) whereof provides
as follows:

"367. Interpretation - (1) Unless the context otherwise
requires, the General Clauses Act, 1897, shall, subject to D
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.
E
(2) .....................................................................

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

Mr. Naphade urged that since the expression "offence" had
not been defined in the Constitution but in the General Clauses F
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 G
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 said offences could be
tried separately and trial of a part of the offence in the USA gave H
856 SUPREME COURT REPORTS (2009] 1 S.C.R.

A 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
B 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
c contraband from its introduction into India and thereafter export
to the USA, different portions thereof could be tried separately

0
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 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
E 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
F 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
G 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.

H 26. In our view, the offence for which the appellant was
JITENDRA PANCHAL v. INTELLIGENCE OFFICER, NCB 857
& ANR. [ALTAMAS KABIR, J.]

• -1-- convicted in the USA is quite distinct and separate from the A
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 B
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 c
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
D
which the appellant was tried and convicted in the USA and for
which he is now being tried in India, 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 E
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 F
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 G
hereinbelow :-

"3. Punishment of offences committed beyond, but which
by law may be tried within, lndia.-Any person liable, by
any Indian law, to be tried for an offence committed beyond
H
858 SUPREME COURT REPORTS (2009] 1 S.C.R.

A India shall be dealt with according to the provisions of this
Code for any act committed beyond India in the 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
B
committed by- ·

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

c (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
0 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
E with the order of the High Court impugned in this appeal. The
appeal is accordingly dismissed.

B.B.B. Appeal dismissed.