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TMI Blog1991 (4) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-9-1989 at Guntur, a container consigned in the name of 'Southern Agro Agencies' and received at the Inland Container Depot, attached to the Collectorate of Customs, Guntur, contained, on thorough inspection by the officials of the Customs Department, Guntur, a few parts of Tractors and a large quantity of Ball-bearings, though it was declared to contain magnisium powder and some parts of Tractors. In connection with the said occurrence, three statements from the petitioner in Writ Petition No. 3103 of 1991 were recorded by the officials of the Directorate of Revenue Intelligence, Madras on 13-8-1989,14-8-1989 and 15-8-1989. Likewise, two statements were also recorded from the husband of the petitioner in Writ Petition No. 3104 of 1991 on 4-8-1989 and 5-8-1989 by the officials of the Directorate of Revenue Intelligence, Madras. One more statement was also recorded from the husband of the petitioner in Writ Petition No. 3104 of 1991 by the officials of the Enforcement Directorate of Revenue Intelligence, Madras on 7-10-1989, under Section 40 of the Foreign Exchange Regulation Act. Relying upon the said statements, notices were issued to the petitioner in Writ Petition No. 3103 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g into, trying or otherwise dealing with such offences. It may be at once noted that under the Customs Act, there is no provision authorising remand of a person arrested under Section 104 of the Customs Act and the person so arrested are being remanded to judicial custody by the competent courts exercising the power conferred under Section 162 Cr. P.C. 5. In M.K. Ayoob and Others v. Superintendent, Customs Intelligence Unit, Cochin and Another - 1984 Crl. L.J. 949, it was held that: "The provisions in sub-sections (2) and (3) of Section 167 Cr. P.C. apply to persons arrested under Section 104(1) of the Customs Act and produced before a Magistrate under Section 104(2) of the Customs Act." 6. In DRI v. Abubacker [1989 Law Weekly (Crl.) 305] the same view was taken by the Madras High Court and the decision of the Kerala High Court was quoted with approval. It was further held that the expression "accused" occurring in Section 167(5) Cr. P.C., should be construed in its widest connotation as 'one who has been arrested or detained'. 7. In A.R. Antulay v. Ramdas Sriniwas Nayak & Another - AIR 1984 S.C. 718, it was held by the Supreme Court that: "Section 4(1) of the Code of Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code." 9. Section 164 Cr. P.C. uses and refers to both the expressions ''Confessions and Statements". In other words, the distinction between statements and confessions was kept in mind while enacting Section 164 Cr. P.C. It is well settled that all confessions are statements, but all statements are not confessions. It may be recalled that the Legislature advisedly used the expression "statement" while enacting Section 108 of the Customs Act authorising the empowered authority to record what the person summoned, states. A plain reading of Section 108 of the Customs Act, makes it clear that it does not enable the empowered authority to record a confessional statement from a person summoned thereunder. In the absence of any such power conferred under Section 108 of the Customs Act, the empowered authority can only fall back upon Section 164 Cr. P.C. to record a statement of confessional nature from the person summoned. As already stated, Section 164(2) Cr. P.C. enacts that the Magistrate while recording a confessional statement, must administer the warning or cauti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th. The requirement to state the truth, enacted under sub-section (3) of Section 108 of the Customs Act must be read in the light of the penalty provided for its breach, that the person summoned is liable to be prosecuted under Sec. 193 as also under Sec. 228 of the Indian Penal Code. It should, however, be kept in mind that Sec. 108 of the Customs Act does not compel a person summoned to incriminate himself. In other words, he can maintain studied silence, if the answers to the questions put to him, are likely to incriminate him. In such a situation, Sec. 193 IPC is not attracted. Right of silence is also not an offence and it cannot be said to be an obstruction to the proceedings referred to under Sec. 108 of the Customs Act. 12. In Hira H. Advani v. State of Maharashtra - AIR 1971 S.C. 44, their Lordships of the Supreme Court while referring to the scope of the enquiry under Section 171(a) of the repealed Sea Customs Act corresponding to Section 108 of the Customs Act observed : "Counsel argued that the object of an inquiry under Section 171A was to find out and establish the jural liability of the persons making the statement, viz., whether he had committed an offence or not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements are wholly inadmissible in evidence and liable to be eschewed from consideration for any purpose under any enactment. 15. Shri B. Kumar, learned counsel appearing for the petitioners also submits that even without reference to Section 164 Cr. P.C., the same conclusion would follow if it is borne in mind that fundamentals of criminal jurisprudence apply to the proceedings under the Customs Act. The contention put forward is no longer res integra as in Ambalal v. Union of India [AIR 1961 S.C. 264] a Constitution Bench of the Supreme Court observed: "This Court has held that a customs officer is not a judicial tribunal and that a proceeding before him is not a prosecution. But it cannot be denied that the relevant provisions of the Sea Customs Act and the Land Customs Act are penal in character. The appropriate customs authority is empowered to make an inquiry in respect of an offence alleged to have been committed by a person under the said Acts, summon and examine witnesses, decide whether an offence is committed, make an order of confiscation of the goods in respect of which the offence is committed and impose penalty on the person concerned, see Sections 168 and 171A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence'." 17. In Maneka Gandhi's case [AIR 1978 S.C. 597], it was held by the Supreme Court that any procedure prescribed by law should not be arbitrary and must answer the description of justness, fairness and reasonableness. 18. In Wasiuddin Ahmed v. District Magistrate, Aligarh - AIR 1981 S.C. 2166 - it was held by the Supreme Court: "..... The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is of prime importance to the body politic. It is, therefore, imperative that the detaining authority must "apprise" a detenu of his constitutional right under Article 22(5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. The right of the detenu to make a representation under Article 22(5) would be, in many cases, of little avail if the detenu is not 'informed' of his right." 19. Shri I. Koti Reddy, learned counsel for the respondents, however, urges that Section 24 of the Indian Evidence Act is not a bar to ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently becoming accused - As pointed out by the Supreme Court in State of U.P. v. Deoman Upadhyaya - AIR 1960 S.C. 1125 the expression 'accused person' in Section 24 and the expression 'a person accused of any offence' have the same connotation, and describe the person, against whom evidence is sought to be held in criminal proceeding. Under Section 24, it does not appear to be necessary that the person who makes the confession should be either accused or in police custody at the time of making the confession. The section contains no limiting words, and it does not seem necessary that the confession should be made after accusation and arrest. An admission of crime, when fairly made after due warning, is not inadmissible simply because, at the time it was made, no formal accusation had been made against the party making it. Section 24 refers to a confession made by an accused person. The phrase "accused person" in this connection includes any one who subsequently becomes accused, provided that at the time of making the statement, criminal proceedings were in prospect. Section 24 would apply even if the person who is said to have made the confession was not an accused person at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a law, decision etc. Enforcement, according to Webster's Comprehensive Dictionary, means the act of enforcing, or the state of being enforced, compulsory execution; compulsion. Enforce means to compel obedience to laws; to compel performance, obedience by physical or moral force. If enforcement means to impose or compel obedience to law or to compel observance of law, we have to see what it does precisely mean. The right to life and personal liberty has been guaranteed as a fundamental right and for its enforcement one could resort to Article 226 of the Constitution for issuance of appropriate writ, order or direction. Precisely at what stage resort to Article 226 has been envisaged in the Constitution? When a right is so guaranteed, it has to be understood in relation to its orbit and its infringement. Conferring the right to life and liberty imposes a corresponding duty on the rest of the society, including the State, to observe that right, that is to say, not to act or do anything which would amount to infringement of that right, except in accordance with the pro cedure prescribed by law. In other words, conferring the right on a citizen involves the compulsion on the rest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alleged to have taken those steps to appear and show cause why they should not be restrained from violating that right? Instead of doing so would it be the proper course to be adopted to tell the petitioner that the court cannot take any action towards preventive justice until his right is actually violated whereafter alone he could petition for a writ of habeas corpus? In the instant case when the writ petition was pending in court and the appellant's right to personal liberty happened to be violated by taking him into custody in preventive detention, though he was released after four days, but could be taken into custody again, would it be proper for the court to reject the earlier writ petition and tell him that his petition has become infructuous and he had no alternative but to surrender and then petition for a writ of habeas corpus? The difference of the two situations, as we have seen, have different legal significance. If a threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced. If the right has already been violated, what is l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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