1991 (4) TMI 137 - HC - Customs

Summary

Issues Involved:
1. Requirement of caution or warning under Section 108 of the Customs Act.
2. Applicability of Section 164(2) Cr. P.C. to statements recorded under Section 108 of the Customs Act.
3. Admissibility of statements recorded without caution or warning.
4. Right against self-incrimination under Article 20(3) of the Constitution.
5. Applicability of Section 24 of the Indian Evidence Act to statements recorded under Section 108 of the Customs Act.
6. Maintainability of writ petitions in the context of imminent penal action.

Detailed Analysis:

1. Requirement of Caution or Warning under Section 108 of the Customs Act:
The petitioners contended that the empowered officer under Section 108 of the Customs Act must administer a caution or warning to the person summoned that any confessional statement made may be used as evidence against them. The court examined whether there is a legal obligation for such a warning, similar to the requirement under Section 164(2) Cr. P.C., before recording a confessional statement.

2. Applicability of Section 164(2) Cr. P.C. to Statements Recorded under Section 108 of the Customs Act:
The court analyzed Section 4(1) and Section 4(2) of the Cr. P.C., which stipulate that all offenses under the IPC and other laws should be investigated and tried according to the provisions of the Code, subject to any enactment regulating such procedures. The court noted the absence of specific provisions in the Customs Act for recording confessional statements, implying the necessity to adhere to Section 164(2) Cr. P.C. for such recordings.

3. Admissibility of Statements Recorded without Caution or Warning:
The court referred to precedents, including Kehar Singh and Others v. The State (Delhi Administration), emphasizing that non-compliance with the mandatory provisions of Section 164(2) Cr. P.C. renders a confessional statement inadmissible in evidence. The court held that the statements recorded under Section 108 of the Customs Act without the required caution or warning are inadmissible for any purpose.

4. Right Against Self-Incrimination under Article 20(3) of the Constitution:
The court reiterated that Section 108 of the Customs Act does not compel a person to incriminate themselves and they can maintain silence if their answers are likely to incriminate them. This aligns with the right against self-incrimination under Article 20(3) of the Constitution, as established in K.K. Goenka v. Superintendent of Customs Preventive.

5. Applicability of Section 24 of the Indian Evidence Act to Statements Recorded under Section 108 of the Customs Act:
The respondents argued that Section 24 of the Indian Evidence Act is not a bar to the admissibility of statements recorded under Section 108 of the Customs Act. The court clarified that Section 24 applies to any person who subsequently becomes accused, provided criminal proceedings were in prospect at the time of making the statement, as elucidated in State of U.P. v. Deoman.

6. Maintainability of Writ Petitions in the Context of Imminent Penal Action:
The court addressed the maintainability of the writ petitions, noting that penal action had already been initiated against the petitioners. The court cited S.M.D. Kiran Pasha v. Govt. of A.P., emphasizing that Article 226 of the Constitution allows for pre-violation protection of rights. The court concluded that the writ petitions were maintainable to prevent further action based on the inadmissible statements.

Conclusion:
The court directed the issuance of writs forbidding the respondents from using or acting upon the impugned statements for launching or continuing any penal action or prosecution under any enactment against the petitioners. The writ petitions were allowed, and no costs were awarded.