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TMI Blog1998 (6) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... ermission from the Reserve Bank of India, searched the premises of the accused at Muradnagar on August 17, 1987, in pursuance of the search warrant issued by the Assistant Director, Enforcement Directorate, Madras, under section 37 of the Act, in the presence of mediators and seized six documents undercover of mediators report, exhibit P-2, and recorded the statements of the accused on August 17, 1987, August 18, 1987, and September 15, 1987, by PW-1, the Chief Enforcement Officer, Hyderabad, under section 40 of the Act. It is alleged that the accused made voluntary statements admitting the receipt of monies of Rs. 9,15,000 from persons in India on behalf of Mohd. Omer at Kuwait and distributed the said amount as per the list received by him along with the monies and the list did not contain full address and since the persons received monies at a selected place after fixing prior appointment and that the list and documents pertaining to the transactions were destroyed soon after completing the distribution work. The accused was arrested under section 35 of the Act and produced before the court on August 18, 1987, and the Addl. Director after considering the material on record found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in Poolpandi v. Superintendent, Central Excise [1992] 75 Comp. Cas. 504 ; AIR 1992 SC 1795, Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940, Illias v. Collectorate of Customs, AIR 1970 SC 1065, and Haroom Haji Abdulla v. State of Maharashtra, AIR 1968 SC 832. Learned counsel for the respondent, Sri K.F. Baba, submitted with equal vehemence that the Division Bench of this court in N.S.R. Krishna Prasad v. Directorate of Enforcement [1991] 2 ALT 514 has held that the statements recorded in pursuance of the summons issued under section 108 of the Customs Act without administering warning or caution to the person making the confessional statement, as contemplated under section 164(2) of the Criminal Procedure Code is inadmissible in evidence and non-compliance with the said mandatory provision is not curable under section 463 of the Criminal Procedure Code. He also relied on the judgment of the learned single judge of this court in Assistant Collector of Central Excise v. Duncan Agro Industries Ltd. [1992] Crl. LJ 231 who held that the statements recorded without giving a caution or warning as contemplated under section 164(2) of the Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant to mention that the provisions of section 171A of the Sea Customs Act, section 108 of the Customs Act, section 14 of the Central Excises and Salt Act and section 40 of the Act are analogous and the ratio laid down with reference to any of the provisions contained in any one of the above enactments is applicable to the cases arising under the other enactments. The facts leading to Haroom Haji Abdulla v. State of Maharashtra, AIR 1968 SC 832 , are that the appellant along with 17 others was prosecuted before the Chief Presidency Magistrate, Bombay, for offences under section 120B of the Indian Penal Code read with section 167(81) of the Sea Customs Act and certain offences under the Foreign Exchange Regulation Act, 1947, and the customs authorities recorded the statements of the co-accused. The question that, arose there was whether the statements recorded by the customs officer in pursuance of the summons issued under section 171A of the Sea Customs Act are admissible in evidence and their Lordships in para. 6 of the judgment have observed as under (page 835) : "This leads us to the consideration of the statements of Bengali and Noor Mohammad which were received in corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated. It could not be said that if the person who is used to certain comforts and convenience is asked to come by himself to the department for answering questions it amounts to mental torture. Thus, even on applying the 'just, fair and reasonable test', the refusal to allow presence of lawyer would not violate article 21." The Supreme Court in Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940, also held that a person against whom enquiry is held under section 171 of the Sea Customs Act is not a person accused of an offence and the same view was again reiterated by a Constitution Bench of the apex court in K.I. Pavunny v. Assistant Collector, Central Excise Collectorate [1997] 3 SCC 721, wherein it was held as under (headnote) : "Though the authority/officer on suspecting a person of having committed the crime under the Act can record his statement, such a person perforce is not a person accused under the Act. Appellant was not a person accused of the offence under the Act when he gave his confessional statement under section 108 of the Act on December 6, 1980, at 1 p.m. in the office of the Superintendent of Customs, PW-2. The assumption that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Division Bench of this court in N.S.R. Krishna Prasad v. Directorate of Enforcement [1991] 2 ALT 514 held that the statements recorded in pursuance of summons issued under section 108 of the Customs Act by the competent authority without administering caution or warning, as contemplated under section 164(2) of the Criminal Procedure Code are inadmissible in evidence and the defect is not curable under section 463 of the Criminal Procedure Code. But the ratio laid down by the Supreme Court in Haroom Haji Abdulla v. State of Maharashtra, AIR 1968 SC 832 was not brought to the notice of the Division Bench at the time of disposal of the said case. The learned single judge of this court in Assistant Collector of Central Excise v. Duncan Agro Industries Ltd. [1992] Crl. LJ 231, 234 held that the statements recorded under section 14 of the Central Excises and Salt Act without giving warning or caution as envisaged under section 164(2) of the Criminal Procedure Code are inadmissible in evidence ; distinguishing the principle laid down by the Supreme Court in Haroom Haji Abdulla v. State of Maharashtra, AIR 1968 SC 832 , and observed as follows : "That decision has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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