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TMI Blog1966 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... from Bombay to Bangalore in the first instance where the car broke down and then another car was engaged. Ultimately the gold was brought to Hotel Woodlands, Roypettah, Madras and stored in room No. 32. The Customs Officers on receiving information, kept a watch on the aforesaid room, which was found locked. Accused 3 and 4 were traced in a room in Hotel Desaprakash Madras and were questioned at that hotel by the Customs officers. Nothing incriminating was found in the room in the latter hotel. But on a search of the room in the Woodlands Hotel, 700 bars of gold were recovered from under a mattress on a cot. Statements were recorded from accused 3 to 9, by P.W. 1, Inspector of Customs, and also by some other customs Authorities, A compliant was filed by the Collector of Customs, After a preliminary enquiry, the Second Presidency Magistrate, George, Town, committed the accused to take their trial at the City Sessions Court, Madras, after discharging accused 4. In the committal order, the Magistrate confined the charges to the transaction connected with the 700 bars of gold, as in his opinion the transaction in regard to the 50 bars was a distinct one. (3) Thereafter 17 charges we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms in this court because the felt aggrieved by the order of the Sessions Court refusing to mark in evidence the answers given by accused 3 to interrogatories supplied to him by P.W. 1, a gazetted officer of the Customs department, during an enquiry under Section 107 of the Customs Act of 1962. Whereas Section 107 refers, to an enquiry by a Customs officer, specially empowered for the purpose, Section 108 refers to an enquiry by a customs officer of Gazetted rank, and this latter enquiry under S. 108 appears to be more formal than the former enquiry mentioned in Section 107: but so fat as the present proceedings are concerned, the principles involved are common to both S. 107 and S. 108. The terms of S. 108 of the Customs Act and Section 171-A of the Sea Customs Act are substantially identical. Section 108 makes it further cleat that the power of issuing summons to give evidence or produce a document in an enquiry made in connection with the smuggling of goods, has to be exercised by a gazetted officer of the Customs Department. Section 108(4), just as S. 171-A(4), prescribes that the enquiry shall be deemed to be a judicial proceedings, within the meaning of Section 193 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry as the confession can be obtained first under Section 171-A of the Sea Customs Act and then used for a prosecution. We cannot agree with that it would be so. If for example a smuggler gives himself away during an examination under Section 171-A that evidence will nevertheless constitute a compelled testimony and can neither be relied on nor used against him in any criminal prosecution, as Art. 20(3) will prevent it from being so used. So much can be taken as settled by . Therefore any incriminating answers which a person examined under Section 171-A may give, can only be used for the purpose of the department punishment and not for a prosecution in a criminal court. (7) The other learned Judge who participated in the Bench decision., Anantanarayanan, J. concurred with this view any expressed himself at page 449 of the report in the following way: In the instant case, it cannot be said the protection can be invoked to justify the appellant in declining to appear before the authorities, at the stage of the enquiry itself, and to state facts within his knowledge. In other words, it is distinctly at a premature stage that the protection has been claimed for the appellant. Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered afresh by the Supreme Court and re-interpreted under 7 items of findings of which item 7 which is relevant for our purpose is in the following terms (at page 1817): 7. To being the statement in question within the prohibition of Art. 20(3) the person accused must have stood in the character of an accused person 'at the time he made the statement'. It is not enough that he should become an accused, any time 'after' the statement has been made (underlining (here into ' ') mine) It does not appear from the judgments of the Bench of this court in that the attention of the learned Judges was drawn to the later judgment of the Supreme Court by 11 Judges re-interpreting the scope of Art, 20(3) of the Constitution. Learned counsel, Sri. V. T. Rangaswami Iyengar for the petitioner referred to a Bench decision of the Bombay High Court reported in Laxman Padma v. State, , where the Bombay High Court has noted the further clarification by the later decision of the Supreme Court on the scope of Art, 20(3) of the Constitution, modifying the view in Sharma's case, . Differing from the Madras High Court's view, the Bombay High Court came to a diametric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision to exercise the powers of investigation conferred on police officers in Chapter XIV of the Crl, P. C. The decision given on this question has arisen in the context of several special laws. In State of Punjab v. Barkatram, , the question arose out of an investigation under the Land Customs Act, 1924 whose terms were similar to the Sea Customs Act, 1878. There was no provision in the Sea Customs Act as well as in the Land Customs Act and also in the Customs Act 1962 either deeming customs officers as police officers for the purpose of investigation into smuggling offences or specifically giving them powers of investigation conferred on an officer in charge of the police station under Chapter XIV Crl. P. C., So, their Lordships had to deal with a question how far the fact that certain wide powers of investigation into offences contravening the provisions of the Land Customs Act (Sea Customs Act) would make them police officers, so as to attract the bar of Section 25 of the Indian Evidence Act to the statements recorded by them. While dealing with this question, their Lordships extracted a list of the powers of investigation mentioned in the several, sections of the Land Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e context of special provisions in the Act granting to investigating officers the powers of an officers in charge of a police station for the purpose of investigation. They are: Public Prosecutor v. Paramasivam, (Opium Act); Nanoo Sheik Ahemed v. Emperor, ILR 51 Bom 78: (AIR 1927 Bom 4)(FB)(Bombay Abkari Act); Amin Shariff v. Emperor, ILR 61 Cal 607; (AIR 1934 Cal 580)(Bengal Excise Act) and Somewar H. Shelat, In re, 1946 Mad WN (Cri) 47; (AIR 1946 Mad 430)(Hoarding and Profiteering Prevention Ordinance). There are parallel set of decisions, where, in the absence of a provision in the special enactment's investing the investigating officer with the powers of investigation of an officer in charge of a police station, the statement of such an investigation officer was held to be not hit by Section 25 of the Evidence Act. They are; Venkata Reddi v. Emperor, 1947 Mad WN Cri 120: (AIR 1948 Mad 116)(Prohibition Act), Vadivel Gounder v. State, (Prohibition Act). and Srinivasa Narasimha Bayanker v. State, 1954 Mad Wn (Cri) 187 (prohibition Act) Relying on these decisions, learned counsel Sri V. T. Rangaswami Aiyangar appearing fir the petitioner, urged that in the absence of any specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. According to the learned Judge they would be (1) it is not totality of the powers which an officer enjoys but the kind of powers which the law enable him to exercise and (2) whether such powers establish a direct or substantial relationship with the prohibition enacted by Section 25, that is the recording of a confession. In other words, whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or a delinquent. These tests are no doubt stated in the decision in . Learned Counsel Sri. V. T. Rangaswami Aiyangar for the petitioner argued that the application of these tests cannot be divorced from another equally significant requirement that the enquiring officer who exercise those powers must have been conferred under the specific terms of the special law with the powers of an officer an charge of a police station or under terms with (what is to be) a similar purport for the purpose of investigation into offences under the special law. In my opinion, this argument has considerable force because the observation in the decision in must be read in the context of the Bihar Excise Act under which it was given, and to which I have already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trying or otherwise dealing with such offences, but in the Customs Act, 1962, we have a special law which amounts to a self-contained Code for the purpose of holding an enquiry under that Act, and further Chapter XIV Cri. P. C. where S. 162 is found, in terms refers to the procedure for investigation by an officer in charge of a police station, in respect of cognisable offences. As against this, it is pointed out by the learned counsel for the petitioner, that Section 101(4) of the Customs Act, 1962, makes all offences under the new Act non-cognisable, thereby excluding the jurisdiction of police officers to investigate such offences and also would exclude the application of S. 162 Crl. P. C. In view of my referring the other two points for decision to the Bench and since this point is closely allied to the first objection mentioned above, this objection also will be placed for decision by the Bench. The points for decision are therefore: Are statements recorded by enquiring officers of the Customs department under Section 107(108) of the Customs Act 1962 inadmissible in evidence in a criminal trial by a reason of the bar under: (1) Section 25 of the Indian Evidence Act; (2) Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference that S. 108 of the Act of 1962 refers to a gazetted officer. Sec. 107 of the Act of 1962 given the power of investigation, to be conducted in a less formal manner, to an officer of the customs department specially empowered in that behalf, with the qualification that such an enquiry will not have the advantage of being considered to be a judicial proceeding as in the case of the enquiry under S. 108. The majority of the Supreme Court, comprising of Kapur and Reghubar Dayal JJ. after making an analysis of the relevant provisions of the Sea Customs Act, held that the customs officer under the old Sea Customs Act could not be considered to be a police officer for the purpose of S. 25 of the Indian Evidence Act. They relied inter alia on the following Special provisions in that Act: (1) The Act conferred on them powers to make search, powers to arrest and powers to record evidence, but those powers would not suffice to make them police officers as contemplated in S. 25 of the Indian Evidence Act, even if one were to assume, as held by certain High Courts, that officers on whom the powers of an officer in charge of a police station under Ch. XIV Cr.P.C. have been conferred, were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us with a comparative statement of the different provisions of the two enactments and he also gave extracts of the relevant provisions from the Opium Act (Act I 0f 1878), the Bihar and Orissa Excise Act (Act 2 of 1918), The Central Excises and Salt Act (Act I of 1944). We will confined our attention to the parallel provisions of the old Sea Customs Act and the revised Act, Act 52 of 1962, and refer to the other enactment's in the particular contexts where such reference is necessary. First of all, the preamble to Act 52 of 1962 states that it was an act to consolidate and amend the law relating to customs . The preamble to the old Customs Act has already been referred to earlier in this judgment. But the modification in the preamble of the new Act has little or no effect on the question we have to consider. All that the new preamble implies is that the legislature intended to pass a consolidate Act for the purpose of dealing with matters affection customs. The provisions which are purely analogous, in the old and new Customs Act, can be considered under the categories of (1) power to arrest (Section 173 of the old Act and Section 104(1) of the new Act); (2) power of search (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produce or deliver any document or thing relevant to the enquiry, and examined any person acquainted with the facts and circumstances of the case, but this enquiry involves no compulsion, and the enquiring officer cannot compel the attendance of witness. or compel them to produce documents, and no penalty is attached to the persons who fail to comply with a direction to attend to give evidence or to produce a document. But such an obligation along with a penalty for non-compliance are provided in the case of an inquiry under Section 108: such enquiry has to be made only by a gazetted officer; it is also deemed to be a judicial proceeding. A reference to the powers of investigation conferred on an officer in charge of a police station under Ch. XIV of the Crl. P. C. can be made at this state. S. 160 Crl. P. C. states that the police officer has got power to require attendance before him of persons for examination, and Section 161 provides that such a person shall be bound to answer all questions relating to the case put to him by the police officer other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty of forfeiture. We ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to their earlier decision in that they were examining a point which was left open in that decision, namely, whether officers of departments other than police, on whom the powers of an officers in charge of a police station under Ch. XIV Crl. P. C. were conferred, were police officers or not for the purpose of Section 25 of the Evidence Act. This would make it clear that in the later decision their Lordships were dealing exclusively with the interpretation of the Bihar and Orissa Excise Act of 1915, with particular reference to Section 78(3) contained therein, when terms (sic) are given above. (26) There are, in the course of the judgment in , certain observations which were relied upon by the counsel for the respondents before, us and which were also pressed into service in the order of the Sessions Judge, for holding that the customs officer exercising powers of investigation under Central Act 52 of 1962 is a police officer for the purpose of Section 25 of the Indian Evidence Act. Thus, at page 833 of the report, the learned Judges observed that for the purpose of determining as to who can be regarded a police officer for the purpose of Section 25 of the Evidence Act, the tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Savant v. State of Mysore, Crl. App. 26 of 1964: , a Bench of five Judges of the Supreme Court dealt with a case of a prosecution under S. 167(81) of the Sea Customs Act (Act 8 of 1878) read with S. 9 of the Land Customs Act (Act XIX of 1924). The Deputy Superintendent of Customs who made the investigation was also a Central Excise Officer as defined under the Central Excise and Sale Act (Act 1 of 1944). That Act contained a provision, Sec. 21, the material part of which reads thus:- When any person is forwarded under S. 19 to a Central Excise Officer, empowered to send persons so arrested to a magistrate, the Central Excise Officer shall proceed to enquire into the charge against him. (2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the Officer-in-charge of a police station may exercise and is subject to under the Criminal Procedure Code 1898 when investigating a cognisable case. Provided that........ (28) It was pressed on their Lordships that because of the powers thus conferred on the Central Excise Officer, the statement recorded by him would be hit under S. 25 of the Evidence Act, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admit his to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such magistrate. It is submitted by Sri. V. T. Rangaswami Aiyangar, learned counsel for the revision petitioner, that this provision did not deter the learned Judges in their latest decision from holding that S. 25 Indian Evidence Act was not attracted in the case of an officer empowered to investigate under the Central Excises and Sale Act of 1944, and that therefore, the observation regarding the powers to grant bail contained in the earlier decision of the Supreme Court, in Raja Ram Jaiswal case may not be a conclusive test. We are inclined to agree with this submission. (31) The position that emerges in the light of the above clarification made in the latest decision of the Supreme Court in C. A. 26 of 1964: is that for the purpose of Section 25 of the Evidence Act, it is important to find out whether the powers of investigation conferred on an officer other than a police officer, in a particular enactment, have been defined by that Act itself, as the powers of investigation conferred on the police officer in charge of a police station, under Ch. XIV Crl. P. C. with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the statements in the present case do not become inadmissible by reason of Section 25 of the Evidence Act. It consequently follows that they are not hit by Section 162 Crl. P. C. (34) The question of the guarantee under Art. 20(3) of the Constitution being available to the statements in the presents case, has arisen for consideration by this Full Bench decision of that fact that in an earlier Bench decision of this court , the learned Chief Justice Ramachandra Iyer and Anantanarayanan J. (as he then was) expressed certain opinion, which have been pressed into service in this case by the learned counsel for the respondents-accused. The facts in that case can be briefly set out. The appellant, a merchant of Madras, had imported certain goods by a ship which arrived in Madras Harbour. There was a doubt entertained by the Customs officers, as to whether the goods which he imported tallied with their description, in the import licence. Therefore, the Customs officers called upon the appellant, to show cause why action, should not be taken against him and the goods confiscated under S. 167(8) of the Sea Customs Act. Thereafter, the Assistant Collector of Customs issued summon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleading the guarantee relating to the commission of an offence which may result in a prosecution. Their Lordships also observed that in the case before them, which arose under the Foreign Exchange Regulations, the stage would be reached when a show cause notice was issued (as against a prosecution). But in that particular case that stage had not been reached, and therefore it was held that Art. 20(3) would not apply. (36) In the present case, the lower court had not been required to consider whether the statements now under consideration were hit by Art. 20(3) of the Constitution. This question was raised only in the course of the hearing before us. It appears that these statements were recorded following upon certain recoveries of consignments of gold, from certain persons, or from certain localities, in the course of an investigation under Section 107 of Section 108 of the Customs Act, 1962. But it is conceded before is that at the time when the statements were recorded, the investigation had not reached the stage when particular persons had been accused of an offence, within the meaning of Art. 20(3) of the Constitution. Therefore we hold that the constitutionals protection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents relied upon these observations, and contended that even if the statements of the respondents recorded during the enquiry under Section 107 or 108 are not hit by Art, 20(3) of the Constitution, because at that time the persons did not stand as accused persons, at the present trial where they are standing as accused persons, they could rely upon the guarantee under Art, 20(3) of the Constitution and insist upon the exclusion of such evidence. It is submitted by Sri V. T. Rangaswami Aiyangar, learned counsel for the petitioner herein, that the above observations of the learned judges in the Rainbow Trading Co., case require reconsideration for the reasons: one is that the decision of the Supreme Court in Sharma's case does not give any authority for such a view; secondly a later decision of eleven judges of the Supreme Court has set down certain principles, and if they are taken into account the statement of the law extracted above, by the two learned judges in the Rainbow Trading Co., case. AIR 1963 SC 434 will require reconsideration. (38) In the first place, it appears to us that where evidence is given at a trial regarding prior statements of confessional nature given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to a person against whom a forma accusation relating to the commission of an of course may result in prosecution will show that their Lordships were having in mind only the exclusion of compelled testimony at a stage when the person giving such compelled testimony or whose compelled testimony in the shape of a document is being obtained, stands at that time in the position of an accused. There appears to be no basis in that decision for inferring that the Supreme Court contemplated that the guarantee under Article 20(3) will be available to the accused at a subsequent stage of a trial, or even if that guarantee was not available to him at the time, when the impugned testimony was given at an anterior stage. The Supreme Court, in a later decision in which 11 Judges took part, , differed from the observations in in so far as they gave a wider connotation to the meaning of to be a witness in Art. 20(3) of the Constitution. They held that the data gathered by obtaining the thumb impression or by the hand-writing of a person or by exhibiting parts of his body for the purpose of identification, cannot be included within the scope of the expression to be a witness . This apart, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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