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TMI Blog1971 (3) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant to the Customs Officer on a summons issued to him under Section 108 of the Act. 3. The appellant along with six others was charged under the sections mentioned above and after being found guilty was sentenced to undergo one year's rigorous imprisonment and to pay a fine of ₹ 2,000/- for the charges under Section 120B Indian Penal Code read with Section 135 of the Act. He was also sentenced to undergo one year's rigorous imprisonment and to pay a fine of ₹ 2,000/- for the charge under Section 135 of the Act. The sentences were directed to run concurrently. In default of payment of fine, he was also sentenced to undergo further rigorous imprisonment for the period mentioned in the judgment of the Presidency Magistrate. 4. The case against the appellant was that he had several other persons entered into a conspiracy during the period from June, 1963, to the end of December, 1963 to smuggle wrist watches and other luxury goods such as nylon textiles, toilet requisites, playing cards, cigarette lighters, saffron, etc., from Dubai to India through Mechanised sailing vessel and land the said imported and smuggled goods surreptitiously at any coast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d no part of it was meant to be used against him. It may be stated at this stage that the statement recorded from the appellant by P.Ws. 5 and 19, on January 7, 1964 is Ex. T. The statement refers to various matters concerning his relationship with the other accused as well as his connection with several articles which had been seized and which were the subject of the charges. 6. We do not think it necessary to refer to Ex. T. in any great detail nor to the various seizures of articles made by the Customs authorities. It is enough to state that the conviction of the appellant has been substantially based on the confessional statement Ex. T. after finding independent corroboration furnished by other evidence on record in respect of the statements contained in Ex. T. 7. Objections were taken to the admissibility in evidence of Ex. T. on the ground that it is hit by Article 20(3) and Sections 24 and 25 of the Evidence Act. All these objections were overruled both by the Presidency Magistrate as well as the High Court. The findings of the Presidency Magistrate and accepted by the High Court are that Ex. T. is a voluntary statement and it was a true disclosure made by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law so as to attract Section 24 of the Evidence Act. 10. We will now refer to the circumstances under which Ex. T. was recorded as found by both the Courts. Consequent on information received by the Customs authorities, several raids were conducted from December 21, 1963. The appellant went to the Customs House at about 8 A.M. on January 7, 1964. By about 8.30 A.M. summons under Section 108 of the Act was served on him. From 11.30 A.M. onwards to about 8.30 P.M. the process of recording of the statement Ex. T. from the appellant continued excepting for a short break of about 2 and a half hours for lunch, tea and other requirements. The appellant was arrested immediately after his statement Ex. T. was completed. The seizure of the entire contraband goods was completed by about December 25, 1963. Though the attention of the appellant was drawn to sub-section (4) of Section 108 of the Act, he was not informed or warned that his statement was likely to be used in the event of any prosecution against him for the said offence. Undoubtedly Ex. T. contained various incriminating facts regarding the complicity of the appellant with the offences alleged against him. The Inspector of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required: Provided that the exemption under Section 132 of the Code of Civil Procedure, 1908, shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code. 12. Section 122 of the Act deals with confiscation of goods and levy of penalty. Section 124 deals with the procedure to be adopted before ordering the confiscation of any goods or imposing any penalty on any person. Section 135 deals with prosecution before a criminal Court in the circumstances mentioned in clauses (a) and (b) and that prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning of Section 25 of the Evidence Act. It was emphasised that the proceedings taken by him are for the purpose of holding an enquiry into suspected cases of smuggling and that the Customs Officer is for all purposes an officer of the Revenue. It was laid down that as the Customs Officer under the Act is not a police officer, the statement made before him by a person, who is arrested or against whom an enquiry is made, are not covered by Section 25 of the Evidence Act. It was further laid down that until a complaint is filed before a Magistrate, the person against whom an enquiry is commenced under the Customs Act does not stand in the character of a person accused of an offence under Section 135. The discussion on this aspect of wound up by this Court as follows is : ...................The Customs Officer even under the Act of 1962 continues to remain a revenue officer primarily concerned with the detection of smuggling and enforcement and levy of proper duties and prevention of entry into India or dutiable goods without payment of duty and of goods of which the entry is prohibited. He does not on that account become either a police officer, nor does the information conveyed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him. 19. We have already pointed out that when the appellant appeared before the Customs Officers on the morning of January 7, 1964, he was served with a summons under Section 108 of the Act and that it was after the receipt of the summons, the appellant gave the statement Ex. T. From the decision in (1969) 2 SCR 461, it is clear that when an inquiry is being conducted under Section 108 of the Act, and a statement is given by a person against whom the inquiry is being held it is not a statement made by a person accused of an offence and the person who gives the statement does not stand in the character of an accused person . Therefore the first essential fact to be established, to attract Section 24, referred to above is lacking in this case, as the appellant was not an `accused person'. 20. We have already stated that it has been found by both the Courts that the statement Ex. T. is a voluntary statement made by the appellant. Mr. Chari attempted to bring the statement Ex. T. under Section 24 of the Evidence Act because of P.W. 5 having informed the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .W. 5, who recorded the statement of P.W. 19, who was guiding the proceedings. On the contrary the officers recording the statement were only doing their duty in bringing to the notice of the appellant and provisions of the statute. Even if P.W. 5, had not drawn the attention of the appellant to the fact that the inquiry conducted by him is deemed to be a judicial proceeding, to which Section 193, I.P.C. applies, the appellant was bound to speak the truth when summoned under Section 108 of the Act with the added risk of being prosecuted, if he gave false evidence. 23. Further, it is to be seen that it is not every threat, inducement or promise even emanating from the person in authority that is hit by Section 24 of the Evidence Act. In order to attract the bar, it has to be such an inducement, threat or promise, which should lead the accused to suppose that by making it he would gain and advantage or avoid any evil of temporal nature in reference to the proceedings against him . In the case before us what is it that the appellant has been told? He has been told that the law requires him to tell the truth and if he does not tell the truth, he may be prosecuted under Section 193, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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