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TMI Blog1968 (10) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... issed. - 27 of 1967 - - - Dated:- 18-10-1968 - J.C. Shah, V. Ramaswami, G.K. Mitter, K.S. Hegde and A.N. Grover, JJ. [Judgment per : J.C. Shah, J.]. - The Assistant Collector of Customs filed a complaint against Romesh Chandra Mehta and four others in the Court of the Additional District Magistrate, 24 Parganas, charging them with offences under Section 120BI.P. Code read with Section 167(81) of the Sea Customs Act, 1878, Section 5 of the Import Export Control Act, 1947, and for specific offences committed in pursuance of the conspiracy. It was the case of the complainant that when Mehta was searched on December 13, 1962, at the Dum Dum Airport, Calcutta, diamonds and jewellery worth Rs. 1,91,000/- were found on his person and currency notes of Rs. 27,000/- were found in a suit-case with him and that pursuant to a statement made by Mehta diamonds, pearls and jewellery of the value of Rs. 2,61,800/- and correspondence telegrams and cables bearing upon the conspiracy to smuggle gold, precious stones etc. into India from foreign countries were recovered from different places. 2.The complainant tendered in evidence at the trial certain confessional statements which he cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 20(3) of the Constitution. Even after the repeal of the Sea Customs Act, admissibility of the statement made in a complaint made before a Magistrate for contravention of the provision of that Act must be adjudged in the light of the taint, if any, attaching thereto when the statement was made. The first contention must, therefore, fail. 4.Section 25 of the Indian Evidence Act, 1872, enacts that "No confession made to a police officer shall be proved as against a person accused of any offence". The broad ground for declaring confessions made to a police officer inadmissible is to avoid the danger of admitting false confessional statements obtained by coercion, torture or ill-treatment. But a Customs Officer is not a member of the police force. He is not entrusted with the duty to maintain law and order. He is entrusted with powers which specifically relate to the collection of customs duties and prevention of smuggling. There is no warrant for the contention raised by counsel for Mehta that a Customs Officer is invested in the enquiry under the Sea Customs Act with all the powers which a police officer in charge of a police station has under the Code of Criminal Procedure. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 173 of the Code of Criminal Procedure. He can only make a complaint in writing before a competent Magistrate. 5.In The State of Punjab v. Barkat Ram - (1962) 3 S.C.R. 338 this Court held (Subba Rao, J., dissenting) that a Customs Officer under the Land Customs Act 19 of 1924 or under the Sea Customs Act 8 of 1878 is not a police officer for the purpose of Section 25 of the Indian Evidence Act, 1872, and that conviction of the offender on the basis of his statements to the Customs Officer for offences under Section 167(8) of Sea Customs Act, 1878, and Section 23(1) of the Foreign Exchange Regulation Act, 1947, is not illegal. Raghubar Dayal, J., who delivered the majority judgment of this Court observed : "....... that the powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order. The powers of Customs officers are really not for such purpose. Their powers are for the purpose of checking the smuggling of goods and the due realisation of customs duties and to determine the action to be taken in the interests of the revenues of the country by way of confiscation of goods on which no duty ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that a confession made before the Assistant Collector of Customs was not inadmissible under Section 25 of the Indian Evidence Act. 9.Counsel for Mehta contended that a Customs Officer who has power to detain, to arrest, to produce the person arrested before a Magistrate, and to obtain an order for remand and keep him in his custody with a view to examine the person so arrested and other persons with a view to collect evidence, has opportunities which a police officer has to extracting confessions from a suspect, and if the expression police officer be not narrowly understood, a statement recorded by him of a person who is accused of an offence is inadmissible by virtue of Section 25 of the Indian Evidence Act. But the test for determining whether an officer of Customs is to be deemed a police officer is whether he is invested with all the powers of a police officer qua investigation of an offence, including the power to submit a report under Section 173 of the Code of Criminal Procedure. It is not claimed that a Customs Officer exercising power to make an enquiry may submit a report under Section 173 of the Code of Criminal Procedure. 10.The remaining contention that a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for adjudging confiscation of goods dutiable or prohibited and imposing penalties. The Customs Officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act with the commission of any offence. His primary duty is to prevent smuggling and to recover duties of customs when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea Customs Act, he is not accusing the person of any offence punishable at a trial before a Magistrate. In Maqbool Hussain v. The State of Bombay - (1953) S.C.R. 730, the Court held that a person against whom an order for confiscation of goods had been made in proceedings taken by Customs Officers under Section 167 of the Sea Customs Act and was subsequently prosecuted before a Magistrate for offences under the Foreign Exchange Regulation Act, 1947, could not plead the protection of Article 20(2), since he was not "prosecuted" before the Customs authorities, and the order for confiscation was not a "punishment" inflicted by a Court or judicial Tribunal within the meaning of Article 20(2) of the Constitution and the prosecution was not barred. 11.In M.P. Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arayanlal Bansilal's case (1961) 1 SCR 417 this Court in describing a person accused used the expression "against whom a formal accusation had been made", and in Kathi Kalu Oghad's case (1962) 3 SCR 10 this Court used the expression "the person accused must have stood in the character of an accused person". Counsel for Mehta urged that the earlier authorities were superseded in Kathi Kalu Oghad's (1962) 3 SCR 10 case and it was ruled that a statement made by a person standing in the character of a person accused of an offence is inadmissible by virtue of Article 20(3) of the Constitution. But the Court in Kathi Kalu Oghad's case (1962) 3 SCR 10 has not set out a different test for determining the stage when a person may be said to be accused of an offence. In Kathi Kalu Oghad's case (1962) 3 SCR 10 the Court merely set out the principles in the light of the effect of a formal accusation on a person, viz. that he stands in the character of an accused person at the time when he makes the statement. Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an Officer competent to investigate it, or whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that the person from whom information is being collected under Section 19 is necessarily in the position of an accused. The question whether he should be made an accused is generally decided after the information is collected and it is when a show cause notice is issued, as was done in this case on July 4, 1955, that it can be said that a formal accusation has been made against the person concerned. We are therefore of the opinion that the appellant is not entitled to the protection of Article 20(3) with respect to the information that might have been collected from him under Section 19 before July 4, 1955." 15.Under Section 19 of the Foreign Exchange Regulation Act, 1947, it is open to the Central Government or the Reserve Bank of India, if it considers necessary or expedient, to obtain and examine any information, book or other document in the possession of any person or which in the opinion of the Central Government or the Reserve Bank it is possible for such person to obtain and furnish, by order in writing, to require any such person to furnish, or to obtain and furnish, to the Central Government or the Reserve Bank or any person specified in the order with such informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded only during an investigation undertaken by the Customs Officer under Sections 107 and 108 of the Customs Act of 1952 and at a time when the deponents did not stand in the position of accused in the light of the principles stated in the decisions cited above,", and by the Bombay High Court in Laxman Padma Bhagat v. The State - 67 B.L.R. 317 that a person examined under Section 171A of the Sea Customs Act, 1878, does not stand in the character of an accused person inasmuch as there is no formal accusation made against him by any person at that time are, in our judgment, substantially correct. We, therefore, agree with the High Court that the statements made by Mehta and other persons accused before the Additional District Magistrate, 24 Parganas, were not inadmissible in evidence because of the protection granted under Article 20(3) of the Constitution. Criminal Appeal No. 45 of 1968 : 18.On March 6, 1963, six parcels containing watches were seized by the Customs authorities at Santa Cruz Airport, Bombay. The Customs authorities recorded statements of the appellant Chitnis and attached certain documents from him. Thereafter the Customs authorities filed a complaint aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 126P(2)(II) and (IV) of the Defence of India Rules read with Section 109 I.P. Code and Section 135 of the Customs Act, 1962 read with Section 109 I.P. Code. At the trial evidence was given by the Superintendent, Central Excise, Marine and Preventive Division, that the persons accused had made certain oral statement in his presence admitting their complicity in smuggling gold. An application by Poonamchand raising the contention that the statements were inadmissible under Section 25 of the Indian Evidence Act and Article 20(3) of the Constitution was rejected on the ground that the application was premature. A revision application was then filed in the High Court and it was heard with the other petitions and was rejected. 21.In the three Appeals Nos. 45, 46 and 47 of 1968 the statements were made to or recorded before the Customs Officers in an enquiry made under the Customs Act, 1962. It was urged on behalf of the appellants that the statements made before the Customs Officers exercising power under the Customs Act, 1962 are inadmissible at the trial of a person accused of an offence under the Customs Act, 1962, because of Section 25 of the Evidence Act and Article 20(3) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of Sections 193 and 228 of the Indian Penal Code. Section 110 authorises the proper officer to seize such goods as he has reason to believe are liable to confiscation under the Act. Sections 111 to 127 deal with confiscation of goods and conveyances and with imposition of penalties. An appeal lies to the appropriate authority at the instance of a person aggrieved by any decision or order passed under the Act within the time specified under Section 128. Under Section 130 the Central Board of Revenue may exercise revisional powers in respect of orders passed by the Subordinate Customs authorities and Section 131 authorises the Central Government on the application of any person aggrieved by certain orders specified therein to exercise the power to annul or modify such orders. Sections 132 to 139 deal with offences and prosecution. Section 135 provides, insofar as it is material : "Without prejudice to any action that may be taken under this Act, if any person - (a) is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act of 1962 do not, in our judgment, make him a police officer within the meaning of Section 25 of the Evidence Act. He is, it is true, invested with the powers of an officer-in-charge of a police station for the purpose of releasing any person on bail or otherwise. The expression "or otherwise" does not confer upon him the power to lodge a report before a Magistrate under Section 173 of the Code of Criminal Procedure. Power to grant bail, power to collect evidence, and power to search premises or conveyances without recourse to a Magistrate, do not make him an officer-in-charge of a police station. 25.Proceedings taken by him are for the purpose of holding an enquiry into suspected cases of smuggling. His orders are appealable and are subject also to the revisional jurisdiction of the Central Board of Revenue and may be carried to the Central Government. Powers are conferred upon him primarily for collection of duty and prevention of smuggling. He is for all purposes an officer of the revenue. 26.For reasons set out in the judgment in Criminal Appeal No. 27 of 1967 and the judgment of this Court in Badku Joti Savant's case - (1966) 3 S.C.R. 698, we are of the view that a C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose infractions. Under the Customs Act of 1962 the Customs Officer is authorised to confiscate goods improperly imported into India and to impose penalties in cases contemplated by Sections 112 and 113. But on that account the basic scheme of the Sea Customs Act, 1878, is not altered. 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 of 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 by him, when the person guilty of an infraction of the law is arrested, amount to making of an accusation of an offence against the person so guilty of infraction. Even under the Act of 1962 a formal accusation can only be deemed to be made when a complaint is made before a Magistrate competent to try the person guilty of the infraction under Sections 132, 133, 134 and 135 of the Act. Any statement made under Sections 107 and 108 of the Customs Act by a person against whom an enquiry is made by a Customs Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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