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TMI Blog2000 (8) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... maker thereof and that view was followed by Single Judge of the same High Court in the present case which resulted in refusal of leave to appeal when an order of acquittal was challenged in the High Court. This appeal, by special leave, is against the said order of refusal passed by the Single Judge. 3.Certain companies which engaged in manufacturing cigarettes, along with some of their Directors were prosecuted before the Court of a Special Judge (Economic Offences) at Hyderabad for offences under different clauses of Section 9(1) of the Central Excise Act and under Section 120B of the Indian Penal Code. The trial judge after holding inquiry framed charges against the respondents for the aforesaid offences and proceeded with the trial but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements from the accused in this case have not administered the warning to the accused as required under Section 164 sub-section (2) of the Code of Criminal Procedure, non-compliance of the mandatory provision contained in 164 sub-section (2) of the Code of Criminal Procedure renders the statements inadmissible in evidence as held by the Division Bench. Therefore, those statements are inadmissible against the makers thereof of against the co-accused." 5.The Division Bench of the High Court in L.S.R. Krishna Prasad's case (supra), whose decision the learned Single Judge followed, has held thus: "It, therefore, follows that unless the empowered authority under Section 108 of the Customs Act administers the caution or the warning embodied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding. Section 108 of the Customs Act reads thus : "108. Power to summon persons to give evidence and produce documents. - (1) Any gazetted officer of custom shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods. (2) A summons to produce documents or other things may 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 control of the person summoned. All persons so summoned shall be bound to attend either in person or by an authorized agent as su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be exercised only by a judicial magistrate. Even a police officer on whom power of a magistrate has been conferred is forbidden from recording a confession. Sub-sections (2) and (4) deal with procedure which such magistrate has to follow while recording inculpatory statements made by persons. 10.Section 108 of the Customs Act does not contemplate any magisterial intervention. The power under the said Section is intended to be exercised by a gazetted officer of the Customs Department. Sub-section (3) enjoins on the person summoned by the officer to state the truth upon any subject respecting which he is examined. He is not excused from speaking the truth on the premise that such statement could be used against him. The said requirement i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer must also pass the tests prescribed in Section 24 of the Evidence Act. If such a statement is impaired by any of the vitiating premises enumerated in Section 24 that statement becomes useless in any criminal proceedings. 12.As early as in 1968 this Court had considered the scope of the statement made under Section 171A of the Sea Customs Act in Haroon Haji Abdulla v. State of Maharashtra [1999 (110) E.L.T. 309 (S.C.) = AIR 1968 SC 832 = 1968 (2) SCR 641]. Hidayatullah, J. (as he then was) made the following observations : "These statements are not confessions recorded by a Magistrate under Section 194 of the Code of Criminal Procedure but are statements made in answer to a notice under sec. 171 A of the Sea Customs Act. As they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Maharashtra (AIR 1972 SC 1224). It was again followed in Veera Ibrahim v. The State of Maharashtra [1983 (13) E.L.T. 1590 (S.C.) = AIR 1976 SC 1167 = 1976 (3) SCR 672]. Another three Judge Bench in Poolpandi etc. v. Superintendent, Central Excise and Ors. [1992 (60) E.L.T. 24 (S.C.) = AIR 1992 SC 1795 = 1992 (3) SCC 259] took the same view. 15.It is unfortunate that the Division Bench of the Andhra Pradesh High Court has not addressed itself of the above well settled clear position when learned Judges of the Bench (Ramanujula Naidu and Panduranga Rao, JJ.) held that the statement recorded under Section 108 of the Customs Act without complying with Section 164 of the Code "will be inadmissible in evidence for any purpose." 16.We hol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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