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TMI Blog1969 (8) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... nment of India of duty payable thereon and/or to evade the prohibitions and restrictions for the time being in force under or by virtue of the Sea Customs Act with respect thereto viz., Section 3(2) of the Imports and Exports (Control) Act, 1947 entered into a conspiracy in Bombay and other places during the period commencing from August 1958 and August 1959 to acquire possession and to be concerned in carrying, removing, concealing and otherwise dealing with prohibited and restricted goods in very large quantities of the C.I.F. value of not less than Rs. 1,45,328/- and in relation to the said contraband goods to be knowingly concerned in fraudulent evasion of or attempt at evasion of the duty chargeable thereon and of the prohibition and restriction as aforesaid applicable to the said goods and thus committed offences under Section 120B of the Indian Penal Code read with Section 167(81) of the Sea Customs Act as amended and Section 120B of the Indian Penal Code read with Section 5 of the Imports and Exports (Control) Act, 1947. 3. After recording the evidence of a large number of witnesses, charges were framed against all the accused by the Magistrate in December 1962. The secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mchand Thanwardes Ramchandani was the proprietor of a concern named Miller and Miller carrying on business in Bombay. 5. The prosecution case was that although the first and the second accused as shown above were purporting to carry on business separately they were in fact carrying on business together, accused No. 1 being the brain behind the business conducted in the name of H.B. Advani Brothers and/or Indo Far-East Traders while accused No. 2 helped him substantially in his business. The first, second and sixth accused were said to have hatched a conspiracy to import prohibited goods from Hong Kong to Bombay by evading the provisions of law and payment of import duty. In this they took advantage of the practice of the Customs Officers at Bombay at that time who passed examination order in respect of alternate cases imported and the choice as to which of the two indicated in the examination order should be actually opened for examination was left to the importer or his representative. The conspiracy according to the prosecution case was to take advantage of this practice by sending genuine goods in the middle case where the consignment was of three cases and importing contraban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... despatched from Hong Kong, the destiny being Bombay in all cases. Two cases were sent on s.s. Canton on the import licence held by Indo Far-East Traders (accused No. 2). The ship sailed on 6-7-1959 and reached Bombay on 19-7-1959. Case No. 1 contained genuine goods while case No. 2 contained contraband goods. This consignment was the subject-matter of charge No. 2. A consignment of three cases by s.s. Star Arcturus leaving Hong Kong on 20-6-1959 reached Bombay on 9th July, 1959. The consignment was covered by the import licence of Aarkay Saree Museum. Of this, the middle case No. 21 contained genuine goods while the other two contained contraband. Accused 2 is alleged to have purchased the benefit of the licence from Aarkay Saree Museum on July 4, 1959. This consignment was the subject-matter of charge No. 3. Two consignments each containing three cases were sent by s.s. Nissan Maru on 24th June, 1959 on the import licence of (i) Laxminarayan Mahavirprasad and (ii) Continental Exports Corporation Limited. In both the consignments the middle case contained genuine goods while the other two contained contraband goods. The ship reached Bombay on 23rd July, 1959. Laxminarayan Mahavirp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ex. F-2 contains an account of s.s. Canton consignment the document being headed with the word "Ton." A panchanama was duly made regarding the search being Ex. A. Very soon after the search a telegram appears to have been sent by one Advani H. giving his telephone No. 264248 to accused No. 6 at Hong Kong reading : "Stop everything. Attend telephone tomorrow." This telephone admittedly stood registered in the personal name of the first accused. On the next day i.e., 22nd July, 1959 a trunk call was booked on this telephone by one Lal Hotchand to accused No. 6. There was evidence that the call had become effective. Statements of the first and the second accused were recorded by Customs Officer on 22nd July, 1959. Summons under Section 171A of the Sea Customs Act were served on the first accused and certain documents were produced. Sunderdas, the proprietor of Tarasingh and Sons was asked by the Customs Officer to produce the bills of entry relating to the three consignments for the three ships mentioned, namely, s.s. Canton, Arcturus and Nissan Maru. Under his instructions his son Shyamlal contacted accused No. 4 to get the bills of entry. Shyamlal and accused No. 4 went to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the provisions of Section 171A of the Sea Customs Act, Section 132 of the Evidence Act and Article 20(3) of the Constitution. [After referring to the defence of accused 2 to 5, and the relevant details with regard to the consignments on the three ships (in Paras 10 to 18), the judgment proceeded]; *** 19. In holding the accused guilty of offences of conspiracy the High Court relied on several circumstances. The first of these was the outcome of the search of the premises of H.B. Advani Brothers on 21st July, 1959 when various documents and articles were seized. The two exhibits which require special attention are Exs. B-1 and F-2. Ex. B-1 mentioned all the three ships s.s. Nissan Maru, Arcturus and Canton, although the importers of the goods were all different. Ex. F-2 was held by the High Court to give a complete account of the goods found on s.s. Canton. 20. The second circumstance was the origin of all the shipments, the shipper in each case being accused 6. The third circumstance relied upon by the prosecution was the virtual admission that accused 3 was staying in Hong Kong with accused 6 from 10th June to 10th July, 1959 during which period all the consignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as to the guilt of his client on the strength of the evidence before it and the inference which could legitimately be drawn therefrom. 25. We propose to deal with the other points before examining the contention with regard to the admissibility of the statements made in pursuance of powers exercised by the Customs Officers under Section 171A. With regard to the finding of the High Court in agreement with that of the Magistrate that accused 1 had the custody or possession of exhibits, B to F-2, counsel argued that except those seized from his wallet the others were found in the drawer of the table of the premises searched, there was no evidence to show that the said table was the table of his client and as there was no proof that his client had any financial or proprietary interest in the firm of H.B. Advani Brothers; there was nothing to warrant the conclusion that the exhibits other than those in wallet were in his custody. The High Court dealt elaborately with this point and we do not think it necessary to re-examine the same except to note the comment made before the High Court as well as before us that the evidence of Mr. Darne, the panch witness who had said that at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itness, the company used to prepare as many copies of the policy as were required by the insurer. A carbon of the original was always kept in the office record. Martin produced an office copy of the policy in respect of the consignment on s.s. Canton to which was attached a marine premium debit note and it was his evidence that in the usual course of business of the company such a debit note was always prepared at the time when the policy was issued and a copy thereof was attached to the copy of the policy kept in the records. Counsel objected to the reception of the copy of the premium note on the ground that there was no proof of its making or its correctness. The High Court accepted the evidence of Martin that the copy of the premium debit note had been attached to the policy kept in the office record relying on the presumption afforded by illustration (f) to Section 114 of the Evidence Act that the practice of the insurance company of attaching such a note to the policy had been followed in this particular case. In our view the High Court was entitled to do so and no objection can be allowed to be raised on the ground that there was no proof of the preparation of the original p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on legal evidence tendered on oath and they are not authorised to administer oath to any witness......... All these provisions got to show that far from being authorities bound by any rules of evidence or procedure established by law and invested with power to enforce their own judgments or orders, the Sea Customs Authorities are merely constituted administrative machinery for the purpose of adjudging confiscation, increased rates of duty and penalty prescribed in the Act................. We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy." The Court in that case was dealing with the question as to whether an order of confiscation was a punishment inflicted by a court or a judicial tribunal within the meaning of Article 20(2) of the Constitution. 32. In Thomas Dana v. State of Punjab, 1959 Supp (1) SCR 274 at p. 286 the provisions of the Sea Customs Act were examined again and referring to Section 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3. Reference may also be made to the definition of `evidence' in the said section which shows that the word means and includes inter alia all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry. 34. Reference was also made to Section 4(1) of the Code of Criminal Procedure, 1898 under which `investigation' for purposes of the Code includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf; and clause (m) which defines "judicial proceeding" as including any proceeding in the course of which evidence is or may be legally taken on oath. Counsel relied strongly on the judgment of this Court in Lalji Haridas v. State of Maharashtra, (1964) 6 SCR 700, where this Court had to consider whether an Income-tax Officer exercising powers under Section 37 of the Income-tax Act, 1922 was a `court' within the meaning of Section 195(1)(b) of the Code of Criminal Procedure making he sanction thereunder obligatory for the filing of a complaint in respect of an offence alleged to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a judicial proceeding in the wider sense of the word. In our view the Oaths Act has no application here. The preamble to the Act shows that it was an Act to consolidate the law relating to judicial oaths, affirmations and declarations and was enacted because the Legislature thought it "expedient to consolidate the law relating to judicial oaths, affirmations and declarations and to repeal the law relating to official oaths, affirmations and declarations". Section 4 of the Act provided that : "The following Courts and persons are authorised to administer, by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law : (a) all Courts and persons having by law or consent of parties authority to receive evidence." The relevant portion of Section 5 runs - "Oaths or affirmations shall be made by the following persons :- (a) all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examine such persons and to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggling of any goods which it is his duty to prevent. Such a person may have nothing to do with the smuggling of any goods although he may know where such goods are or who has or had them. Sub-section (3) of Section 171A does not compel any person to make a statement but if he makes a statement he has to state the truth so as to avoid punishment under Section 193, I.P.C. At that stage nothing may be known as to whether an offence has been committed or who has committed it and the person interrogated at that stage certainly is not a person accused of or charged with an offence. He is merely called upon to give evidence to facilitate an inquiry. He is not a witness giving evidence in a Court and his testimony will make him liable under Section 193, I.P.C. only because of the express provision of law in sub-section (4) of Section 171A. 39. Counsel also argued that as a Customs Officer according to all the decisions of this Court already mentioned, is to act judicially, a proceeding for recording evidence before him was a judicial proceeding. This is wholly without any force because even administrative officers have to act judicially. Counsel further argued that a deeming provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to disclose a fraud of concealment of his property was admissible evidence against him on an indictment charging him with altering, mutilating and falsifying his books with intent to defraud his creditors. The examination was taken in conformity with Section 117 of the Bankrupt Law Consolidation Act (12 and 13 Vict. c. 196) which enacted that a bankrupt may be examined by the Court "touching all matters relating to his trade, dealings or estate, or which may tend to disclose any secret grant, conveyance or concealment of his lands etc.". There was no dispute that the questions put were relevant as touching matters relating to his trade etc. Delivering, judgment in which three other Judges concurred, Lord Campbell, C.J., held that the defendant was bound to answer the questions although by his answers he might criminate himself. According to the learned Chief Justice : "......... and we think it would be contravention of the express intentions of the Legislature to permit the bankrupt to refuse to answer such questions; for ever since the reign of Elizabeth successive statutes have been passed, purporting to guard against frauds in bankruptcy and the bankrupt, when called upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le under the Indian Evidence Act could not be let in for the purpose of bringing out the truth and said : "What matters should be given in evidence as essential for the ascertainment of truth, it is the purpose of the law of evidence, whether at common law or by statute to define. Once a statute is passed, which purports to contain the whole law, it is imperative. It is not open to any judge to exercise a dispensing power, and admit evidence not admissible by statute, because to him it appears that the irregular evidence would throw light upon the issue. The rules of evidence, whether contained in a statute or not, are the result of long experience, choosing no doubt to confine evidence to particular forms, and therefore eliminating others which it is conceivable might assist in arriving at truth." The question there related to the admissibility of evidence which according to the Judicial Committee should not have been adduced. The question before us is somewhat different but if the Indian Evidence Act is a complete Code repealing all rules of evidence not to be found therein there is, in our opinion, no scope for introduction of a rule of evidence in criminal cases unless it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressly provide that they may not. Where, as here, there is no such express provision the question whether such answers are admissible evidence must depend on the proper construction of the particular statute. Although I need not decide the point it seems to me to be reasonably clear that incriminating answers to a proper demand under this section must be admissible if the statutory provision is to achieve its obvious purpose." 45. Prima facie these provisions are against the contention of the appellant. In that case the House of Lords in effect held that the provision of law did not entitle the Commissioners "to send a representative to confront the trader, put questions to him orally and demand oral answers on the spot; and ......... that it does not entitle them to send their representative to subject the trader to a prolonged interrogation in the nature of a cross-examination". The provisions of Section 171A are in sharp contrast to the provision of law before the House of Lords. Here the statute expressly authorises officers of customs to secure the attendance of persons to give evidence or produce documents or things relevant in any enquiry in connection with the smugglin ..... 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