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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 ..... 24 of the Evidence Act. Such an exercise can be made only after the appeal is regularised by granting leave to appeal. Since leave was declined on a wrong interpretation of law we have to interfere with the impugned order. We, therefore, allow these appeals and set aside the impugned order. Leave applied for will stand granted. Resultantly, the appeal filed in the High Court will stand Regularised. Now the High Court is to dispose of the appeal in accordance with law. - 628-629 of 2000 - - - Dated:- 7-8-2000 - K.T. Thomas and R.P. Sethi, JJ. [Judgment per : K.T. Thomas, J.]. - Leave granted. 2.Is it necessary to comply with the precautions envisaged in Section 164 of the Code of Criminal Procedure for short 'the code' when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts were done by the respondent pursuant to the criminal conspiracy hatched and perpetrated by them. 4.The Special Judge, after a detailed trial, found the respondent not guilty and acquitted him. The appellant filed and appeal before the High Court of Andhra Pradesh and moved for leave to appeal. Learned Single Judge who heard the petition for leave felt that he is bound by the earlier decision rendered by a Division Bench of the same High Court in N.S.R. Krishna Prasad v. Collector of Customs [1992 (57) E.L.T. 568 (A.P.)] According to the said decision, any inculpatory statement recorded by the authorities under Section 108 of the Customs Act without following and complying with the constraints prescribed in Section 164 of the Code woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of acquittal passed by the trial court, the petition for leave to file the appeal is dismissed and consequently the appeal is also dismissed." If the view adopted by the learned Single Judge regarding the application of Section 164 of the Code to Section 108 of the Customs Act is erroneous, the High Court should have granted leave to appeal. 7.Incidentally, we may point out that the Union of India had challenged the decision in N.S.R. Krishna Prasad (supra) before this court. A two Judge Bench of this court has set aside the said decision on the premise that the challenge made before the High Court in that case was not sustainable in a writ petition. However, this Court did not express any opinion on the merits of the case and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code (45 of 1860)." 8.It must be remembered that Section 171A of the Sea Customs Act, 1878 (which enactment has been repealed by the Sea Customs Act) corresponds to Section 108 of the Customs Act. In this context we may point out that Section 14 of the Central Excise Act is practically the same as Section 108 of the Customs Act. So the decision rendered by this Court under the other corresponding provisions will be of much advantage to discern how the scope of the provisions has been understood by this Court earlier. 9.Section 164 of the code deals with "recording of confession and statements". The provision empowers a judicial magistrate to record any confession or statements made to him during the course of an investigation "under thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporated under Section 164 of the Code. But the safety of the confessor who makes such confession to the police officer is that the same is forbidden from use in evidence. The ban contained in Section 25 of the Evidence Act is an absolute ban. But it must be remembered that there is no ban in regard to the confession made to any person other than a police officer, except when such confession was made while he is in police custody. The inculpatory statement made by any person under Section 108 is to non-police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing conducted under Section 108 of the Customs Act, and a statement is given by a person against whom the inquiry is being held it is not a statement made by a person accused of an offence and the person who gives the statement does not stand in the character of an accused person." This was followed by this Court in Percy Rustomji Basta v. The State of Maharashtra [1983 (13) E.L.T. 1443 (S.C.) = AIR 1971 SC 1087 = 1971 (1) SCC 847]. It was a case in which the appellant was convicted under Section 135 of the Customs Act and 120-B of the IPC. The question which this Court considered in that case was whether Section 24 of the Evidence Act was a bar to the admissibility of a statement given by the accused of offences under the Customs Act. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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