A Cross-Country Caper and Constitutional Criminal Procedure

"He was a humble man who shunned publicity and lived a quiet life. He was born in Cologne, Germany ... [and] came to America as an immigrant with a middle school education. ... He bought his first building in Los Angeles when he was 21, an endeavour that bloomed into a real estate empire. He came to Las Vegas in 1955 to purchase the failing Moulin Rouge, which he turned into a success."

This description of a Las Vegas tycoon appears in his obituary of 2019. Understandably, it is silent about the more colourful exploits of this gentleman from around the time that he was building up his empire. Exploits that have made him a household name for Indian criminal law and procedure.

With "records as long as adding machine rolls", Thomas Dana and our tycoon, Leo Roy Frey, bought off a diplomat's car in Paris and bribed the garage staff to keep the diplomatic numberplate. Of course, there were some other modifications — they had created a secret compartments to stash gold and undeclared currency notes. Frey and Dana took off to India with the car. They reached Punjab and were crossing the border to Pakistan from Attari on June 23, 1957 where they were stopped by Indian customs authorities. 

Frey and Dana filled out their customs declaration forms stating they were carrying hardly anything of value on their person — INR 40, USD 30, some personal effects — but the authorities were unconvinced. A personal search of both persons revealed items of more than INR 1 lakh (at the time) and, as luck would have it, the secret compartments in the car were discovered as well. The authorities had stumbled upon a serious smuggling effort and had just about managed to stop it.

Leo Frey and Thomas Dana were apprehended and the rest, as they say, is history. They made the quiet the buzz in national and international dailies covering the story of the "luxury Lincoln car" of the smugglers. So much so that these persons sought contempt proceedings to quell the media coverage (but failed). What we are concerned is not the scandal, but the two constitutional law cases that their subsequent prosecution led to — reported as Leo Roy Frey v. Superintendent, District Jail, Amritsar [1958 SCR 822 ("Leo Roy Frey")] and Thomas Dana v. State of Punjab [1959 SCR (Supp) 274 ("Thomas Dana")].

The Curious Procedural History of the Case

At the heart of the two cases was an identical issue — could Frey and Dana be prosecuted before a court for offences under the Foreign Exchange Regulation Act, 1947 and the Sea Customs Act of 1878, even after the two had been subjected to heavy penalties (INR 25 lakhs at the time) by the Customs Department for having violated these laws? The contention was that it would violate the right against double jeopardy, secured under Article 20(2).  

It is fascinating that the judgments in Leo Roy Frey and Thomas Dana are barely a year apart — the first petition was decided on 31.10.1957, and the second one on 04.11.1958. How they managed to get cases up to the Supreme Court so quickly is one thing, but it is also intriguing as to why the Supreme Court heard Thomas Dana on double jeopardy grounds after having dismissed Leo Roy Frey barely a year ago. Yes, procedurally there was a slight difference — the first petitions were filed while the prosecution in court was pending, and the second set were filed after the court had convicted the petitioners. But the issue was exactly the same, which suggests a suboptimal utilisation of time by a Court already pressed for it.

To understand the Court's justification for this, we need to take a look at close look at how the protection against double jeopardy is worded under Article 20(2), and how the Court had looked at it thus far. The clause states: "No person shall be prosecuted and punished for the same offence more than once". Critical are the words and phrases "prosecuted", "punished", and "same offence". 

The following permutations arise:

• You can be proceeded against twice where the first case was not a "prosecution" — prior civil liability is not covered, essentially.
• You can be proceeded twice if there was a prior acquittal in the prosecution — the clause is narrow and only protects if one was prosecuted and punished earlier.
• You can be proceeded against twice if the second prosecution is not for the "same offence".

Reading Thomas Dana, we get an answer as to why the Court agreed to hear the second case. It notes that the first judgment in Leo Roy Frey dismissed the petition on considerations that the second case was not a prosecution for "same offence". The Collector of Customs had levied penalties for violating the Foreign Exchange Regulation Act and the Sea Customs Act. However, the court case was also for offences under Section 120-B of the Indian Penal Code 1860 which punished criminal conspiracy, "which certainly was not one of the heads of charge before the Collector of Customs." What the judgment in Leo Roy Frey did not rule on was whether even if it was the same offence, whether the prior proceeding before the Collector of Customs could be seen as a "prosecution" at all. That became the focus for the Court in Thomas Dana, where the Court ultimately held that the Collector of Customs proceedings were not a "prosecution".   

This is an acceptable explanation until we start to scratch the surface a little bit. Leo Roy Frey held that the court case was not for the same offence as proceedings before the Collector, and ultimately that court had gone and convicted the petitioners for the conspiracy charge. Therefore, that objection equally stood when     the Supreme Court heard Thomas Dana, which rendered the judgment purely academic in a sense. What's more, this was not even a novel academic discussion — more than five years earlier, in Maqbool Hussain v. State of Bombay [1953 SCR 730 ("Maqbool Hussain")], the Supreme Court had held that proceedings before a Collector of Customs were not a "prosecution". 

So, just why exactly did the Court revisit a point that a bench of Five Justices had already decided, in what was at best an academic discussion? The answer, to hazard a guess, might be in the fact that except Sudhi Ranjan Das, C.J., the bench composition in both Thomas Dana and Leo Roy Frey is entirely different. Perhaps, the Thomas Dana bench did not agree with the earlier view,—that Subba Rao J. penned a dissent suggests some discomfort was there— but the Chief Justice, who had authored Leo Roy Frey and was on the bench for Maqbool Hussain (along with NH Bhagwati J., who was also on the Thomas Dana Bench), ultimately got the others around to agree. 

We will never know for sure, but it is enjoyable to speculate. Having done so we can turn our attention more keenly to how the affair of the luxurious Lincoln afforded an opportunity for the Supreme Court to address the law itself.          

Getting the Law Wrong, Twice

The conclusions of the Supreme Court in Leo Roy Frey and Thomas Dana were set out above. The meaning of "same offence" came to read by the Court in Leo Roy Frey as requiring the same heads of charge, and since the petitioners "were not and could never be charged with" conspiracy before the Collector, there was no question of triggering double jeopardy. The outcome was that even when a perusal of the two sets of proceedings made it clear that the allegations were identical, merely invoking different offences could obviate the double jeopardy protection. And in Thomas Dana, the Court approved its own earlier view that "prosecution" for double jeopardy only meant a trial before a criminal court, excluding all tribunals no matter how serious the financial penalties might be.

Future benches of the Supreme Court, when commenting upon fundamental rights, would often go on to note the need to privilege substance over form in these matters for these were fundamental rights that they were dealing with. The verdicts in Leo Roy Frey and Thomas Dana, much like many others in the field of constitutional criminal procedure, are a perfect example of privileging form over substance instead. It is perhaps because these protections are all traceable to pre-existing statutory provisions. Rather than pull up the statutory law, the Court consistently dragged down its reflection in the fundamental rights. 

What is the substance in double jeopardy? The idea that a person ought not to be repeatedly harassed by the state for the same set of allegations. It is about the might of the state being used to repeatedly target an individual, and that targeting does not disappear if the state wears a different cloak each time it comes out with its daggers. A very narrow reading of the "same offence" is nothing less than creating a backdoor for both parliament and the executive, and adding to it the idea that tribunals can impose unlimited penalties in addition to any court proceedings is then inviting them to walk through it. That invitation has been graciously accepted — central and state legislatures have gone on to create overlapping penal statutes allowing multiplicity of actions to subsist, ensuring that some persons will forever remain ensnared within the criminal process. In almost all of these scenarios, a parallel process is conceived of before a tribunal, with powers to impose severe financial penalties and civil disqualifications. 

The result is a fundamental right against double jeopardy that is practically toothless to prevent any but the most egregious cases of abuse of powers by the state, and a mushrooming of penal laws across the statute book. Reminding us that, in criminal law at least, the Supreme Court has regretfully refused to embrace the fundamental nature of the rights guaranteed by the Constitution.