STATEMENT MADE BEFORE CUSTOMS OFFICERS - Powers of Customs Officers

[Mr. M. GOVINDARAJAN]

Powers of Customs Officers

The Customs Officers are entrusted with the powers specifically relating to the collection of customs duties and prevention of smuggling. For this powers they are invested with the power to-

• Search any person on reasonable suspicion;
• Summon;
• X-ray the body of the person for detecting secreted goods;
• Arrest a person against whom a reasonable suspicion exists that he has been guilty of an offence under the Act;
• Obtain a search warrant from a Magistrate;
• Collect information by summon persons to give evidence; and
• Produce documents and to adjudge confiscation.

Section 108 of the Customs Act, 1962 provides that the Customs officer is entitled to serve summons to collect the evidence to produce a document or other thing or to give evidence. The person so summoned in bound to attend either in person or by an authorized agent, as such officer may direct, is bound to state the truth upon any subject respecting which he is examined or makes a statement and to produce such documents and other things a may be required. Further the power to arrest, the power to detain, the power to search or obtain a search warrant and the power to collect evidence are vested in the Customs Act. He is empowered to investigate into the infringement of the provisions of the Act primarily for the purpose of adjudicating forfeiture and penalty.

Statement before Customs Officers

The Statement collected by the Customs Officer from any person may be used as a substantive evidence. In ‘Naresh J. Sukhawani V. Union of India’ - 1995 (11) TMI 106 - SUPREME COURT OF INDIA the Supreme Court held that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. It is a material piece of evidence collected by Customs Officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention as much as Mr. Dudani’s statement clearly inculpates not only himself but also the petitioner. The SC held that therefore the statement can be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India.

In ‘Collector of Customs V. D. Bhoormull’ – 1974 (4) TMI 33 - SUPREME COURT OF INDIA the Supreme Court held that the Department is not required to prove the case with mathematical precision. All that is required is that the occurrence and complicit of individual should be established to such a degree of probability that a prudent may, on its basis, believe in the existence of the fact of issue.

In ‘Commissioner of Customs V. Ghanshyam Gupta’ – 2010 (3) TMI 1067 - PATNA HIGH COURT the Division Bench of Patna High Court held that there is no doubt about the legal position that the statements in the scheme of the Act are admissible evidence in terms of Section 108 of the Act.

Confession under Evidence Act

Section 24 of Evidence Act deals with the confession caused by inducement, threat or promise, when irrelevant in criminal proceedings. The following are the ingredients that are required to be established:

• the statement in question is a confession;
• such confession has been made by an accused;
• it has been made to a person in authority;
• it was obtained by reason of any inducement, threat or promise proceeding from a person in authority;
• such inducement, threat or promise must have reference to the charge against the accused person; and
• the inducement, threat or promise must be, in the opinion of the Court sufficient to give an accused person grounds which would appear to him to be reasonable by supposing that by making it would gain any advantage or avoid any evil or a temporal nature in reference to the proceedings against him.

As per the above judgments discussed the provisions of Evidence Act would not apply strictly to the confessional statements obtained in the Customs Act by the Customs Officers in the course of their investigation.

The confessional statement given by a person may be retracted after recording the same. The onus on the part of the department is to discharge its primary onus by recording the voluntary statement of concerned person under Section 107/108 of the Act which is in the nature of substantive evidence, with which the onus passed on that person in terms of Section 123 of the Act.

In ‘MD. Akhtar V. Commissioner of Central Excise, Customs & Service Tax, Patna’ – 2011 (9) TMI 968 - PATNA HIGH COURT the appellant was detained by the police and the police informed the Customs authorities that the appellant was found secreting 9 bars of ‘Suisse’ gold, weighing 90 tolas, between the sole and the socks which he was wearing with shoes. His statement under Section 107 was recorded and his statement under Section 108 was also recorded and 9 bars of gold were seized. The authorities thereafter issued notice to the appellant to show cause as to why the gold in question be not confiscated and appropriate penalty in accordance with law not imposed on him. The appellant in his reply to the show cause notice informed that he was a mere carrier of contraband gold handed over to him at Raxaul by somebody, which in turn had to be handed over to another person in Benaras. On a consideration of the entire materials, the Commissioner of Customs rejected the reply of the appellant and orders for absolute confiscation of the said gold under Section 111 (d) of the Act and imposed penalty.

The appellant filed appeal before Commissioner (Appeals) who dismissed the appeal. The appellant next moved to the Tribunal which has also rejected appeal of the appellant. Therefore the present appeal before the High Court is filed by the appellant. The appellant contended the following:

• the Statements under Section 107 and 108 of the Act have been taken under duress;
• the cause shown by him was not considered;
• the materials on record do not show that the gold which the appellant carrying was smuggled;
• no person has come forward to claim ownership of the contraband goods, the same may be returned to him treating him to be the owner;
• he was acquitted in the criminal case on the self same facts;
• the entire onus in such a situation is on the Department that the seized goods are contraband goods;
• he has no objection if the order of penalty is maintained, provided the gold is released particularly because none else has come to claim its ownership.

The Revenue contended the following:

• the appellant has taken contradictory stand at various stages;
• the stand taken by the appellant in the cause show by him has been found by the authorities to be false;
• the later amounts to retraction which in the present case was quite belated;
• the statement under Section 108 of the Act is substantive evidence;
• in order to give any credence to the retracted statement, the same should above all satisfy the condition of having been made at the earlier opportunity;
• the statements of the charged persons under the provisions of Section 107 and 108 are admissible in evidence and the conclusion of culpability can be based on such statement.

The High Court found in the statements given by the appellant he admitted that gold had been seized from his body which he was secreting between the sole and his stocks which he was wearing with shoes. He further said that the same belonged to one Rajeshwar Giri at Raxaul to be carried to Benaras. There is only material contradiction in these two statements the address. The addresses given in two statements are different from each other. He further stated that he is a petty carrier of contraband goods for remuneration of ₹ 200/- only. But in the reply to the show cause notice he stated that the goods so recovered from his body belong to Prabhu Nath Singh, which had been purchased from Dhan Cholia Sons, a dealer in gold, silver and ornaments manufacturer an commission agent, Chandni Chowk, Delhi meant to be converted into jewellery.

The High Court considered the finding of the three lower authorities which they found that the appellant was admittedly carrying the 9 bars of gold on his body. Therefore, seizure and possession of the contraband goods from the possession of the appellant is admitted. On enquiry it has transpired that his permanent residential address is District of Begusarai. The money receipt allegedly issued by Dhan Cholia Sons was false and fabricated document. Nobody has come forward to stake ownership to the goods in question. In such a situation they correctly held that the appellant was the owner of the goods which he had smuggled from a country of third origin and brought into India surreptitiously. The appellant at each stage of the proceedings insisted for release of gold in his favor.

The High Court was of the view that the Department was able to discharge its primary onus by recording the appellant’s voluntary statement under Section107 of the Act read with the appellant’s statement under Section 108 of the Act which is in the nature of substantive evidence, with which the onus passed on to the appellant in terms of Section 123 of the Act. The appellant has not in the least discharged the onus of proof on him. He made different statements at different stages of the proceedings. The High Court did not find any merit in the appeal and dismissed the same.