Judgment ( 1. ) THIS revision has been directed by the applicants against the order of framing of charge under Section 135 (1) of Customs Act, 1962 against the applicants by the learned II Addl. Chief Judicial, Magistrate, Indore, in Criminal Case No. 2/1997 order dated 1-11-2003 for the offence punishable under Section 135 (1) of Customs Act, 1962 (for brevity "the Act" ). ( 2. ) IN brief the factual matrix of the case is that on 27-2-1992, on the basis of an intelligence, the Custom and Central Excise Officers of Indore had conducted a search of the premises 42-A-43-C, Sector-E, Industrial Area, Sanwer Road, Indore. It is alleged by the prosecution that in the said search the raiding party had recovered 90 silver slabs bearing foreign markings indicating their foreign origin. These 90 silver slabs weighing 3041. 493 kgs and valuing Rs. 2,41,00,000/- were seized from different places of the premises in possession of the accused persons. It has also been contended by the prosecution that some other co-accused were standing on the spot and they were actively participating in the various activities. For the seized silver slabs which were foreign origin, no customs duty was paid by the accused persons. The complaint has been filed by the non- applicant before the Court below and the learned Trial Court, after examination of six prosecution witnesses before framing of charge and giving opportunity to the applicants to cross-examine them, framed the charge after hearing both the parties as mentioned herein above against the applicants and other co- accused persons. ( 3. ) THE contention of the applicant before the Trial Court was that against the applicants, Department has launched the proceedings before the Commissioner, Central Excise and by order dated 27-8-1996 both the applicants have been exonerated by the Commissioner, Central Excise and Customs. Therefore, no case is made out for prosecuting them before the Trial Court. The learned Trial Court has not accepted their contention and held that the non-applicants have not filed the complaint against the accused persons on the basis of the order passed by Commissioner but a separate complaint has been filed in which the prosecution has examined six witnesses and full opportunity was given to the accused persons to cross-examine them before framing of charge. Even then some important witnesses like Sarveshkumar (P. W. 1), no cross-examination was done. Even then some important witnesses like Sarveshkumar (P. W. 1), no cross-examination was done. According to the impugned order, after dropping the proceedings by Commissioner, the Department has filed appeal before the Tribunal and same is pending. This fact was also admitted by the applicants before the Court below. Therefore, only on the basis of order of Commissioner dated 27-8-1996 the applicants can not be discharged. ( 4. ) BEFORE this Court, the learned Sr. Counsel Shri H. S. Uberoi, instructed with Shri Prasanna Prasad, appearing for the applicants has vehemently argued that it is a trite proposition of law that if the charges against the accused are dropped by the department during the course of adjudication proceedings itself, the person charged for the alleged offence can not be charged further. In support of this argument, he has submitted that the cardinal principle of criminal jurisprudence is that a person can not be tried twice for one offence alleged to have been committed by him which is known as the doctrine of "double Jeopardy". He further contended that here in the present case when the Senior Officers of the Complainant Department, viz. , the Commissioner, Central Excise and Customs has already dropped the proceedings against the present applicants, thereafter the criminal proceedings against them can not be continued. To bolster their submissions they have placed reliance on the following judgments : (1) D. and H. Secheron Electrodes (Mis) v. Asstt. Collector Central Excise, 1995 (I) MPWN 113 . (2) Sureshchand Gupta v. Union of India, 1998 (1) MPLJ 49 . (3) Ashok Manufacturing Company Pvt. Ltd. v. C. K. Moorjani, 2003 (156) ELT 184 (Del. ). (4) K. Sadasivam v. Enforcement Officer, Enforcement Dte. , Madras, 1999 (105) ELT 269 (Mad. ). (5) D. Munnalal v. Collector of Central Excise, Belgaum,1999 (113)ELT37 (Kar. ). (6) S. K. Sinha v. S. K Shinghal and Anr. , 1987 (30) ELT 900 (Del. ). (7) Mrs. Rajee George v. Asstt. Collector of Central Excise, 1996 (81) ELT 479 (Kar. ). (8) Prem Dass v. Income Tax Officer, 1999 SCC (Cri.) 1004. (9) Uttam Chand and Ors. v. Income Tax Officer, Central Circle, Amritsar, ITR 1982 (Vol. 133) 909 (SC ). , 1987 (30) ELT 900 (Del. ). (7) Mrs. Rajee George v. Asstt. Collector of Central Excise, 1996 (81) ELT 479 (Kar. ). (8) Prem Dass v. Income Tax Officer, 1999 SCC (Cri.) 1004. (9) Uttam Chand and Ors. v. Income Tax Officer, Central Circle, Amritsar, ITR 1982 (Vol. 133) 909 (SC ). (10) G. L. Didwania v. Income Tax Officer, 1999 (108) ELT 16 (SC) (11) R. K Goenka v. Collector of Customs, 2003 (152) ELT 54 (Del.), and (12) Ashok Sharma v. The Assistant Commissioner, (M. Cr. C. No. 2595/2001, decided on 13-8-2001 ). ( 5. ) TO combat this argument, the learned Counsel, for non- applicant Shri T. N. Singh has submitted that looking to the contents of the complaint and statements of six witnesses recorded before framing of charge by the Trial Court, the learned Trial Court found prima facie case against the applicants to frame the charge and repelled the contention of the applicants regarding dropping of proceeding by the Department vide order dated 27-8- 1996 passed by Commissioner, placing reliance on the judgment passed by five Judges Bench of Apex Court in the case of Assistant Collector of Customs, Bombay and Anr. v. L. R. Malwani and Anr. , AIR 1970 SC 962 and three Judges judgment passed by Apex Court in case of P. Jayappan v. S. K. Perumal, First Income-Tax Officer, Tuticorin, 1984 ITR (Vol. 149) 696. The learned Counsel has also pointed out that in all the judgments except in R. K. Goenka v. Collector of Customs (supra) cited by the learned Sr. Counsel for the applicants these two leading judgments have not been discussed and considered and the judgment tendered by five Judges Bench is binding and shall prevail over all the later judgments-passed by the Apex Court consisting lesser number or Judges of High Courts of the country. ( 6. ) HAVING heard the learned Counsel for parties and after perusing the record of the case and the several judgments cited by the Counsel for applicants and non-applicant, this Court is of the view that in the light of the judgment passed by the Apex Court consisting of five Judges Bench in case of Assistant Collector of Customs (supra) as well as in the case of P. Jayappan (supra), no case is made out in favour of the applicants. In the case of Assistant Collector of Customs (supra), the Supreme Court, after considering all earlier judgments, has held in Paragraphs 6-A, 7, 8 as under :- "6-A. Reliance on Article 20 (2) is placed under the following circumstances. In the enquiry held by the Collector of Customs, he gave the benefit of doubt to accused Nos. 1 and 2. This is what he stated therein: "as regards M/s. Larmel Enterprises (of which accused No. 1 is the proprietor and accused No. 2 is the Manager) although it is apparent that they have directly assisted the importers in their illegal activities and are morally guilty, since there is no conclusive evidence against them to hold them as persons concerned in the act of unauthorised importation, they escape on a benefit of doubt. " ( 7. ) DESPITE this finding the Assistant Collector in his complaint referred to earlier seeks to prosecute these accused persons. Hence the question is whether that prosecution is barred under Article 20 (2) of the Constitution which says that no person shall be prosecuted and punished for the same offence more than once. This Article has no direct bearing on the question at issue. Evidently those accused persons want to spell out from this Article the rule of autre fois acquit embodied in Section 403, Criminal Procedure Code [section 300 in Criminal Procedure Code, 1973 (Amended)]. Assuming we can do that, still it is not possible to hold that a proceeding before the Collector of Customs is a prosecution for an offence. In order to get the benefit of Section 403, Criminal Procedure Code (Section 300 in Amended Cr. PC) or Article 20 (2), it is necessary for an accused person to establish that he had been tried by a "court of competent jurisdiction" for an offence and he is convicted or acquitted of that offence and the said conviction or acquittal is in force. If that much is established, it can be contended that he is not liable to be tried again for the 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 under Section 236 or for which he might have been convicted under Section 273. If that much is established, it can be contended that he is not liable to be tried again for the 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 under Section 236 or for which he might have been convicted under Section 273. 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". In Maqbool Hussain v. State of Bombay, 1953 SCR 730 = ( AIR 1953 SC 325 ), this Court held that the wording of Article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a Court of law or a judicial Tribunal and "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. This Court further held that where a person against whom proceedings had been taken by the Sea Customs authorities under Section 167 of the Sea Customs Act and an order for confiscation of goods had been passed, was subsequently prosecuted before a Criminal Court for an offence under Section 23 of the Foreign Exchange Regulation Act in respect of the same Act, the proceeding before the Sea Customs authorities was not a "prosecution" and the order for confiscation was not a "punishment" inflicted by a Court or judicial Tribunal within the meaning of Article 20 (2) of the Constitution and hence his subsequent prosecution was not barred. The said rule was reiterated in Thoma Dana v. State of Punjab, 1959 Supp 1 SCR 274 = ( AIR 1959 SC 375 ) and in several other cases. ( 8. ) WE shall now take up the contention that the finding of the Collector of Customs referred to earlier operated as an issue estoppel in the present prosecution. The issue estoppel rule is but a facet of the doctrine of autre fois acquit. ( 8. ) WE shall now take up the contention that the finding of the Collector of Customs referred to earlier operated as an issue estoppel in the present prosecution. The issue estoppel rule is but a facet of the doctrine of autre fois acquit. In Sambasivan v. Public Prosecutor, Federation of Malaya, 1950 AC 458 at p. 479, Lord Macdermott enunciated the said rule thus : "the effect of a verdict of acquittal pronounced by a Competent Court on a lawful charge and after lawful trial is not completely stated by saying that the person acquitted can not be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim "res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other. " "the rule laid down in that decision was adopted by this Court in Pritam Singh v. State of Punjab, AIR 1956 SC 415 and again in N. R. Ghose v. State of West Bengal, (1960) 2 SCR 58 = ( AIR 1960 SC 239 ). But before an accused can call into aid the above rule, he must establish that in a previous lawful trial before a Competent Court, he has secured a verdict of acquittal which verdict is binding on his prosecutor. In the instant case for the reasons already mentioned, were are unable to hold that the proceeding before the Collector of Customs is a criminal trial. In the instant case for the reasons already mentioned, were are unable to hold that the proceeding before the Collector of Customs is a criminal trial. From this it follows that the decision of the Collector does not amount to a verdict of acquittal in favour of accused Nos. l and 2. " 7. Applying the aforementioned test as laid down by the Supreme Court, the applicants have not been acquitted in trial held by Competent Criminal Court. Therefore, there is no application of Article 20 (2) or Section 403 of Criminal Procedure Code, 1898 (Section 300 in New Criminal Procedure Code, 1973) which says that no person shall be prosecuted and punished for the same offence more than once. The proceeding dropped by the Commissioner, Central Excise and customs was not a prosecution nor the Commissioner of Customs is a Court. Therefore, applicants can not get any benefit of the order passed by the Commissioner, Central Excise and Customs. The separate complaint has been filed before the Trial Court and before framing of charge, complainant has examined as many as six witnesses and Court has also given full opportunity to the applicants to cross-examine them. Out of six witnesses, no cross- examination of Sarveshkumar (P. W. 1) was done by the accused persons. The Trial Court has to go by the complaint and the material adduced by the complainant before it and if that material is making out a prima facie case for framing of charge and continuation of trial, the Trial Court will act on the basis of the said material In the present case, the learned Trial Court has considered all these aspects and thereafter framed the charge in which this Court does not find any illegality, irregularity or impropriety to interfere in this revision. 7-A. The learned Counsel for applicants placed reliance on a judgment passed by Delhi High Court in R. K. Goenka v. Collector of Customs (supra ). In this judgment, the judgment of Supreme Court passed in Assistant Collector of Customs (supra) has been considered and also accepted the legal proposition propounded by Supreme Court in this judgment but relying on some other judgments, it quashed the proceedings on the ground that the accused persons were exonerated from the charges under Income Tax Act by the Tribunal which was final fact finding authority under the Act. Such are not the facts in the case on hand. 8. In view of the aforesaid legal and factual discussion, no case is made out for quashing the charge framed by the Court below. Therefore, this revision is dismissed. As a consequence thereof M. Cr. C. No. 3121/2003 for stay has become infructuous and the same also stands dismissed as become infructuous.