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TMI Blog1973 (10) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion. 3. Equally devoid of force is the second contention that the Customs officer cannot under Section 107 of the Customs Act, 1962 examine any person who is subsequently arraigned as an accused is respect of the possession of smuggled gold. According to clause (b) of Section 107, any officer of Customs empowered in this behalf by general or special order of the Collector of Customs may, during the course of any enquiry in connection with the smuggling of any goods, examine any person acquainted with the facts and circumstances of the case. There is nothing in the language of Section 107 to indicate that the words "any person" do not include a person who is subsequently arraigned as an accused. The language of Section 107 is clear and unambiguous and I find it difficult to place a restricted meaning on the words "any person" and to exclude from their ambit persons who may subsequently be put up for trial. The examination contemplated by clause (b) is of a person acquainted with the facts and circumstances of a case. Where a person is found in possession of smuggled gold he would obviously be a person who can be considered to be acquainted with the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd were promptly seized in the presence of independent witnesses, according to the prescriptions of the law. The search list (Ex. 2) sets out the transaction of recovery. There is evidence to show that the shop was of the accused. The search and seizure, the presence of the accused in the premises, the preparation of the search mahazar and the foreign origin of the gold bars as betrayed by the tell-tale 9990 mark, are not disputed before us. 8. The next target of the customs authorities was the residential flat of the accused. P.W. 3, a preventive officer of Calcutta Customs, with the usual retinue of search witnesses, entered the house of the accused and they met Mrs. Soni, who contacted her husband on the telephone. Thereupon, the accused arrived handed over the key of the almirah from which a gold bar of indigenous origin (Mat. EX. 11) was recovered. These circumstances also are virtually admitted. Later in the day, the same afternoon, the accused was taken to the Customs House for interrogation. What that examination yielded was recorded in Ex. 9. Close upon the search and caught almost red-handed, the accused, with little opportunity to invent and left to fall back upon his u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... client was not shown, by other good testimony, to be guilty. 11. Superficially viewed, a customs officer, when investigating a crime, is more or less in the same relationship to the delinquent as a police officer. In a sense the man proceeded against departmentally by the customs officer is similarly situated as an accused person. Likewise, inculpatory statements which fall short of total admission of guilt, are substantially as injurious as a full confession. Functionally speaking, these anomalies, if they are such, are for Parliament to correct, not for the Court to streamline. 12. The forensic scales are weighted heavily against the appellant's submissions. Two courts have considered these questions of fact and, right or wrong, have chosen to place credence on Ex. 9 and the rest of the prosecution evidence. The Supreme Court, acting under Article 134 or 136, exercises jurisdiction in factual issues only exceptionally when grave miscarriage of justice arising from gross perversity in appreciation of evidence has fouled the finding concurrently reached. Having heard arguments on both sides, we are satisfied that no such invalidatory vice exists here and we are clear that frequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. This, if valid, will exclude Ex. 9 statement, he argues. Substantively, he contends that Rule 126-P(2)(ii) of the Defence of India Rules, 1962, cannot apply to smuggled gold, consistently with the High Court's view that Rule 126-I relating to declaration of non-ornament gold does not cover smuggled gold. To appreciate this part of the argument, we must have a broad understanding of the scheme of Chapter 14A of the Defence of India Rules which in 1965, when the alleged offence was committed, regulated the possession, use, and sale of gold. (Now these functions are performed by the Gold Control Act). The procedural provisions of the Customs Act also come into play in this case and the contention regarding Section 107 of that Act, under which Ex. 9 statement was recorded, needs some attention in the background of Chapter 13 of the Customs Act itself. Since after careful consideration we find no substance in any of these points, our survey of the statutory schemes need not be elaborate. 14. For long years the national economy has been under great stress and strain and gold racket on any considerable scale, particularly during the dangerous years around 1965, was fraught with cripp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n person, place or time. Lest it should be misused the law is choosy and requires the empowerment of customs officers by general or special order of the Collector to exercise these larger powers. Does Section 107 enable the interrogation of even the potential delinquent or must it be confined only to witness who throw light on the delinquent's contravention of the law? "Any person" in the section certainly covers every person including a suspect and potential accused. These words of the statute have to be interpreted in the light of the policy and purpose of the law. The object of Section 107, located in the neighbourhood of Section 108, indicates that while the normal process of enquiry is facilitated by Section 108, investigatory emergencies are taken care of by Section 107. May be situations arise where failure to question a witness quickly may mean irretrievable loss of a valuable material and Section 107 meets this need. The context in which the words "any person" occur, the object of the provision and the policy underlying Chapter XIII of the Customs Act assume relevance and become material in the construction of the text. Nor are we faced with any difficulty on account of Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The penal strategy must be formed by social circumstances, individual factors and the character of the crime. India has been facing an economic crisis and gold smuggling has had a disastrous impact on the State's efforts to stabilize the country's economy. Smugglers, hoarders, adulterators and others of their ilk have been busy in their under-world because the legal hardware has not been able to halt the invisible economic aggressor inside. The ineffectiveness of prosecutions in arresting the wave of white-collar crime must disturb the judges' conscience. While we agree that penal treatment should be tailored to the individual, in the extreme category of professional economic offenders, incarceration is peculiarly potent. When all is said and done, the offences for which the appellant has been convicted are typical of respectable racketeers who, tempted by the heavy pay-off face the perils of the law and hope that they could smuggle on a large scale and even if struck by the court they could get away with a light blow. 20. Mr. Justice Abhyankar observed in a Bombay case (State v. Drupd AIR 1965 Bom. 6 Para 11 under Section 5, Imports and Exports Control Act : "A serious view m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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