Principle of “Autrefois convict” or “Double Jeopardy”: 

This concept is enshrined in Article 20(2) of the Constitution of India which reads as under:

“No person shall be prosecuted and punished for the same offence more than once”‘.

Basically, this means that for the same offence, the person must not be put to peril more than once.

The conditions for application of this Article, as enumerated by the Supreme Court in State of Bombay v. Apte AIR 1961 (SC) 578, Kalawati v. State of HP (1953) SCR 548, Thomas Dana v. State of Punjab, AIR 1959 (SC) 375 are :

(a) there must have been a previous proceeding before a Court of law or judicial Tribunal.

(b) the person must have been prosecuted in such proceeding.

(c) the person must have been punished in such proceeding.

(d) the offence in both the proceeding must be the same.

(e) the subsequent proceeding must be a fresh proceeding and not a mere continuation of the previous proceeding.

Prosecution means an initiation or starting of proceeding of a criminal nature before a court of law or a judicial Tribunal in accordance with the statute.

In Maqbool Hussain v. State of Bombay, 1983 (13) E.L.T. 1284, the Supreme Court held that customs authorities are not judicial tribunals or courts while adjudging confiscation and penalty. Therefore the principle of double jeopardy cannot be invoked by the person proceeded against. In that case, the prosecution proceeding under the Foreign Exchange Regulation Act consequent to confiscation under the Customs Act, 1962 was held not to constitute double jeopardy. It would be odd to note that the Supreme Court in another case Sewpujanrai Indrasanarai Ltd. v. Collector of Customs, 1983 (13) E.L.T. 1305 had held that penalty, confiscation and fine were judicial acts and not executive acts but had ma de a distinction between proceedings in rem and in personam.