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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 ..... tc. into India from foreign countries were recovered from different places. 2.The complainant tendered in evidence at the trial certain confessional statements which he claimed were made before the Customs Authorities in an enquiry under Section 171A of the Sea Customs Act, 1878, by Mehta and the other persons accused. Counsel for the accused objected to the admissibility of that evidence but the objection was overruled by the Trial Magistrate. The High Court of Calcutta rejected a petition invoking their revisional jurisdiction against the order of the Trial Magistrate. With special leave, Mehta has appealed to this Court. 3.Counsel for Mehta urged three contentions in support of the appeal : that the statements tendered in evidence by the Customs Officer must be deemed by virtue of Section 160 of the Customs Act 52 of 1962 to be recorded under the provisions of that Act and their admissibility may be adjudged in the light of that Act alone; that an Officer of Customs is a "police officer" within the meaning of Section 25 of the Indian Evidence Act, 1872, and a confessional statement made before him is inadmissible in evidence at the trial of the appellant and his co-accused; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvested 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. Under the Sea Customs Act, a Customs Officer is authorised to collect customs duty to prevent smuggling and for that purpose he is invested with the power to search any person on reasonable suspicion (Section 169); to screen or X-ray the body of a person for detecting secreted goods (Section 170A); to arrest a person against whom a reasonable suspicion exists that he has been guilty of an offence under the Act (Section 173); to obtain a search warrant from a Magistrate to search any place within the local limits of the jurisdiction of such Magistrate (Section 172); to collect information by summoning persons to give evidence and produce documents (Section 171A); and to adjudge confiscation under Section 182. He may exercise these powers for preventing smuggling of goods dutiable or prohibited and for adjudging confiscation of those goods. For collecting evidence the Customs Officer is entitled to serve a summons to produce a document or other thing or to give evidence, and the person so summoned is bound to attend either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 had been paid and by imposing penalties and fines." 6.In Raja Ram Jaiswal v. State of Bihar - (1964) 2 S.C.R. 752 the decision in Barkat Ram's case was distinguished and it was observed (Raghubar Dayal, J., dissenting) that the expression "police officer" in Section 25 of the Evidence Act was not to be construed narrowly but in a wide and popular sense. The Court in that case held that an Excise Inspector or Sub-Inspector under the Bihar and Orissa Excise Act 2 of 1915 upon whom all the powers of a police officer were conferred is entitled to investigate any offence under the Excise Act and to submit a charge sheet and on that account he must be regarded as a police officer within the meaning of Section 25 of the Evidence Act. The Court observed that the object of enacting Section 25 of the Evidence Act was to eliminate from consideration confessions made to an officer who by virtue of his position, could extract by force, torture or inducement a confession, and an Excise Officer acting under Section 78(3) of the Bihar & Oris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer 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 person against whom an enquiry is made by the Customs Officer under the Sea Customs Act is a person accused of an offence and on that account he cannot be compelled to be made a witness against himself, and the evidence if any collected by examining him under Section 171A of the Sea Customs Act is inadmissible has, also no substance. By Article 20(3) of the Constitution a person who is accused of any offence may not be compelled to be a witness against himself. The guarantee is, it is true, not restricted to statements made in the witness box. The Court in The State of Bombay v. Kathi Kalu Oghad - (1962) 3 S.C.R. 10 observed at p. 37 : " `To be a witness' means imparting knowledge in respect or relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. `To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " 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. Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi and Ors. - (1954) S.C.R. 1077 this Court observed that a compelled production of incriminating documents by a person against whom a First Information Report under the Code of Criminal Procedure has been made is testimonial compulsion within the meaning of Article 20(3) of the Constitution. But a search and seizure of a document under the provisions of Sections 94 and 96 of the Code of Criminal Procedure do not amount to compelled production thereof within the meaning of Article 20(3). It was observed by Jagannadhadas, J., at p. 1087 : "Broadly stated in the guarantee in Article 20(3) is against "testimonial compulsion" .......... the protection afforded to an accused insofar as it is related to the phrase `to be a witness' is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an accused when a First Information Report is lodged against him in respect of an offence before an Officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial the offence. Where a Customs Officer arrests a person and informs that person of the grounds of his arrest, (which he is bound to do under Article 22(1) of the Constitution), for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a Magistrate there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate. 14.The decision of this Court in Bhagwandas Goenka v. The Union of India - Cr. As. Nos. 131 & 132 of 1961, dated September 20, 1963 lays down no principle inconsistent with the view we have expressed. In Bhagwandas Goenka's case the appellant was charged with using a sum of 4,000 dollars borrowed by him when he was on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to furnish, or to obtain and furnish, to the Central Government or the Reserve Bank or any person specified in the order with such information, book or other document. The information which was asked for and obtained in Bhagwandas Goenka's case under Section 19 of the Foreign Exchange Regulation Act was not held to be information obtained in violation of Article 20(3) of the Constitution, for the accusation in view of the Court was made against the appellant for the first time on July 4, 1955, when the Reserve Bank of India called for an explanation of the appellant why he should not be prosecuted for contravention of the various provisions of the Foreign Exchange Regulation Act. Under the proviso to Section 23(3) of that Act it is enacted that "where any such offence is the contravention of any of the provisions of this Act or any rule, direction or order made thereunder which prohibits the doing of an act without permission, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission." In the light of the proviso the Court assumed that when an authority which is statutorily authorised and bound t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements of the appellant Chitnis and attached certain documents from him. Thereafter the Customs authorities filed a complaint against Chitnis and thirteen others for offences under Section 120B I.P. Code read with Section 167(81) of the Sea Customs Act, and Section 135 of the Customs Act, 1962 read with Section 109 I.P. Code alleging that between August 15, 1952 and January 28, 1963, and between February 5, 1963 and March 6, 1963, the offenders had imported watches and had on that account committed offences under Section 120B I.P. Code read with Section 167(81) of the Sea Customs Act, and Section 120 I.P. Code read with Section 135 of the Customs Act, 1962, read with Section 109 I.P. Code respectively. At the trial the prosecutor tendered in evidence certain statements made before the Customs authorities by the accused. The Advocate for the accused objected to the admissibility of those statements. The Trial Magistrate rejected the contention and in a revision application filed before the High Court of Bombay the order passed by the Presidency Magistrate was confirmed. Criminal Appeal No. 46 of 1968 : 19.Dady Adarji Fatakia was arrested on December 26, 1964. At that time he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitution. 22.The scheme of the Customs Act, 1962, relating to searches, seizure and arrest and confiscation of goods and conveyances and imposition of penalties may be briefly examined. Under Sections 100 and 101 a Customs Officer has power to search any person to whom these sections apply if the officer has reason to believe that such person has secreted about his person, any goods liable to confiscation or any documents relating thereto. Section 104 confers upon the Customs Officer power to arrest if he has reason to believe that any person in India or within the Indian Customs waters has been guilty of an offence punishable under Section 135. Every person so arrested must be informed of the grounds for such arrest. Section 105 authorises any Assistant Collector of Customs to search any premises if he has reason to believe that goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceeding under the Act, are secreted in any place, he may authorise any officer of Customs to search or may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or acquires possession of or is in any way concerned in(b) carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111, he shall be punishable, - .............. ............. Section 137, insofar as it is material, provides : "(1) No Court shall take cognizance of any offence under Section 132, Section 133, Section 134 or Section 135, except with the previous sanction of the Collector of Customs. (2) No Court shall take cognizance of any offence under Section 136, - (a) where the offence is alleged to have been committed by an officer of Customs not lower in rank than Assistant Collector of Customs, except with the previous sanction of the Central Government; (b) ................" 23.The Customs Act 52 to 1962 invests the Customs Officer with the power to search a person and to arrest him, to search premises, to stop and search convey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Customs Officer is under the Act of 1962 not a police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made are not covered by Section 25 of the Indian Evidence Act. 27.It was strenuously urged that under Section 104 of the Customs Act, 1962, the Customs Officer may arrest a person only if he has reason to believe that any person in India or within the Indian Customs waters has been guilty of an offence punishable under Section 135 and not otherwise and he is bound to inform such person of the grounds of his arrest. Arrest of the person who is guilty of the offence punishable under Section 135 and information to be given to him amount, it was contended, to a formal accusation of an offence and in any case the person who has been arrested and who has been informed of the nature of the infraction committed by him stands in the character of an accused person. We are unable to agree with that contention. Section 104(1) only prescribes the conditions in which the power of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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