TMI Blog1983 (12) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... the recovery of 16 cameras of Japanese make, valued at ₹ 40,000/, 180 dozen nail cutters of U.S. make, valued at ₹ 7,200/-, and 18 Sarees of Japanese make, valued at ₹ 4,054/-. Some wrapers of post parcels ex-Hong Kong addressed to various persons, including Usha Dhawan, and certain other members of the family, were also allegedly recovered. The recovered articles were seized by the Customs Officers. The two petitioners were also examined by the Customs staff soon after the seizure. In the course of their statements the petitioners admitted the recoveries. They also admitted that these goods were of foreign origin and were unable to produce any authority for their importation into India or any proof with regard to the payment of the duty in relation to the goods. Both of them made certain other disclosures with regard to their trips to and from Hong Kong, as well as Kathmandu. By and large, both of them admitted that these goods were of foreign origin and had been imported into India by different persons and had been acquired by the petitioners for sale and that they had been carrying on such activity for some time. They give details of their contacts in Hong Kon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n . The learned Judge then referred to the decision of the Supreme Court in the case reported as A.I.R. 1977 S.C. 2018 and held that applying the test laid down by the Supreme Court in that case the material on record was sufficient for presuming that the two petitioners had committed an offence punishable under Section 135 (1) (b) of the Customs Act. On the contention of the petitioners that the statements were not voluntary and were, therefore, not admissible in evidence the learned Addl. Sessions Judge held that this was not a ground available at the stage of charge because prima facie there is nothing existing on record which could show invalidity of the said statements . It was further observed that the presumption at the stage of charge would be what is stated by the petitioners in their statements recorded under Section 107/108 of the Act is true . It was further observed that the statements contain minute details of the items recovered and also about the smuggling activities of the petitioners . It was, therefore, observed that at the stage of charge those statements cannot be ruled out of consideration . The contention that the statements would be hit by the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that if the bar was not to operate in the exercise of the inherent power at all, it will be tantamount to rendering nugatory one of the limitations imposed upon the exercise of revisional power. The Court, however, found a happy solution of the problem and held that the bar provided in sub-section 2 of Section 397 operates only in exercise of revisional power of the High Court meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. It was, therefore, held that in case the impugned order clearly brought about a situation which was on abuse of the process of the court or for the purpose of securing of ends of justice, interference by the High Court was absolutely necessary, then nothing contained in Section 397(2) could limit or effect the exercise of inherent power by the High Court. It was, however, observed that such cases would be few and far between and the Court added a word of caution that the High Court must exercise its inherent power very sparingly . This reading down of the decision of the Supreme Court in the case of Amar Nath was reiterated by the Court in the subsequent case of Raj Kapoor and others A.I.R. 1980 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n account of application of erroneous criterion to the question of framing of charge and of discharge of an accused person in that Court applied the principles enunciated by the Supreme Court in the case of Ramesh Singh Supra in the context of sections 227 and 228 of the Code of Criminal Procedure to the present case, which was admittedly based on a complaint, filed by a custom officer, and which had to be regulated, in the matter of framing of charge and discharge, by the provisions of sections 245 and 246 of the Code of Criminal Procedure. The contention on behalf of the petitioners was that the two sets of provisions, namely, sections 227 and 228, on the one hand, and sections 245 and 246, on the other, embodied distinct and distinguishable tests for determination of the question with regard to the discharge of an accused or of framing of charge and that the test embodied in sections 227 and 228, as indeed, sections 239 and 240, could not be applied in cases instituted otherwise than on police report, in which the question of discharge or of framing of charge must be determined in accordance with the test incorporated in sections 245 and 246 of the Code. Now, it is not disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of opinion that there is ground for presuming that the accused has committed an offence. Even a cursory look at the three sets of provisions brings out certain obvious points of distinction in the context and in the choice of language. In the first two sets of provisions i.e. sections 227 and 228 as well as 239 and 240 the courts are to act on material consisting of the record of the case and the documents but there is no evidence. While dealing with these two sets of provisions, the court is really considering the evidence that the prosecution is likely to produce before the court as reflected in the records. In the third set of provisions, dealing with cases instituted otherwise than on police report, the court on the other hand, has to decide the question of discharge or otherwise not on the basis of any material proposed to be produced at the trial but on the basis of evidence recorded by the court and that evidence, according to section 244, is all such evidence as may be produced in support of the prosecution even though under subsection (2) of section 245, the magistrate may discharge an accused even at any previous stage if the requirement of that sub-section is satisfie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different. The accused earns a right of discharge if there is no sufficient ground for proceeding against the accused u/s 227 but right of discharge under Section 239 is if the charge appears to be groundless. On the other hand, there is a right to discharge u/s 245, if no case against the accused has been made out, on the evidence before court which if unrebutted would warrant his conviction. 7. It is obvious that in working out the three sets of provisions, the Court has to see in each of the cases first, if a discharge would be justified and only if it is not, the framing of charge would follow, such being the arrangement of the Sections. If the Section with regard to discharge in each of these sets of provisions is differently worded, even though the provision regarding framing of charge is based on a common phraseology, it follows that the expression ground for presuming that the accused has committed an offence in Sections 228, 240 and 246 of the Code could not but get its colour in each of the three situations from the varying language used in the Sections that preceded. Thus, if the Sessions Court comes to the conclusion u/s 227 that there is sufficient ground for pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court in para 4 of the judgment in that case which may bear resemblance to section 245 but reference in the latter part of the decision to the earlier cases and the distinction brought out in those cases between sufficient ground for proceeding and sufficient ground for conviction leave no manner of doubt that the Court was not laying that case any test which would have relevance to a case instituted otherwise than on a police report. It follows, therefore, that a charge in such a case would be justified and it could be said that there is ground to presuming that the offence has been committed only if the question that the Court has to pose to itself u/s 245 is answered in the negative and this would take within its sweep an assessment and sufficiency of the evidence on record even though on the basis that it remains unchallenged. The test enunciated in a case covered by Sections 227 and 228 could not, therefore, be legitimately applied to a case liable to be dealt with under Sections 245 and 246 of the Code. The learned Addl. Sessions Judge was, therefore, clearly misled in relying on the decision of the Supreme Court in the case of Ramesh Singh (supra) but to my mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though it was conceded that it contained certain statements which may tantamount to admissions of certain incriminating facts. It was also not disputed that in view of the settled legal position, the petitioners could not be said to be accused persons within the meaning of section 24 when they made the statements in view of the admitted fact that a formal accusation against them either by the recording of the first information report or by institution of a complaint has not been made and that neither the provision of section 24 nor the principle embodied in it could be attracted. But that apart, it is not possible to find fault with the decisions of the courts below that there was prima facie no material on record which may justify the inference that they were involuntary, even if one must concede and a concession was made on behalf of respondent that Pran Nath Dhawan had been taken to the Custom House and he even made that statement while within the precincts of the Custom House and even though his wife made the statement at the residence, the statement was nevertheless admittedly recorded at a fairly late hour in the night and that in the case of Dhawan, the recording of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also not disputed that the provision of sub-section (2) of section 164 of the Code of Criminal Procedure was also not attracted if a person made a statement u/s 108 before a Customs Officer in the course of an enquiry into the smuggling of goods as the Customs Officer, as at present interpreted, was neither a Police Officer nor a Magistrate. It was, however, urged that if a person whose conduct or activity in relation to smuggling of goods was being enquired into was required to give evidence and produce documents u/s 108 of the Customs Act and if such a person is bound to state the truth upon any subject respecting which he is examined by virtue of the duty imposed by sub-section 3 of that section, and if any such statement whether of a confessional nature or containing incriminating admissions but falling short of being a confession, could be eventually proved at a trial where he is formally accused of an offence under the Act an implied duty must be read into the provision for a Customs Officer to warn the person, if not pursuant to the provisions of section 164 (2), but at least on the salutary principle incorporated in that provision, as also by virtue of the duty of a functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberty, the extent of the right of silence of a suspect in the course of any investigation, inquiry or trial and as to the basic safeguards to which a suspect is or should be entitled irrespective of the nature of the investigation, inquiry or trial. Some of these questions have been subject-matter of decisions by the highest court and in the present state of the law, some of the constitutional and statutory safeguards available to a person accused of an offence were denied to a suspect on any inquiry into the contravention of any provisions of the Customs Act by a Customs Officer and it has been held that some of the provisions of the Customs Act constitute a deliberate legislative departure from the ordinary law of the land dealing with investigation or inquiry into the offences. In an attempt to extend the protective umbrella, available to a person accused of an offence, by constitutional and statutory law, including the Code of Criminal Procedure, to an investigation and/ or inquiry under the Customs Act, in spite of clear dicta of the Supreme Court in a number of decisions to the contrary, and the deliberate departure from the ordinary law of the land, embodied in some of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage of investigation and inquiry and has been proved at the trial. Such material would now be protected because the exclusionary rule made popular by the post-Warren Court in the United States has itself been excluded by the Burger Court in that country and following that by the Supreme Court here at well (1980) 4 Sec. 669, 673. In any event, the exclusionary rule in India, is regulated by statutory provisions such as Section 167 of the Code of Criminal Procedure and sections 24 to 27 of the Evidence Act. This material could, therefore, be legitimately taken into account in trial irrespective of any criticism, that may be made if the illegality or irregularity in the proceedings that laid to it. 12. There is also no substance in the contention that by virtue of section 4(2) of the Code of Criminal Procedure, the safeguards provided in the subsection (2) of section 161 and sub-section (2) of section 164 of the Code of Criminal Procedure would be equally available to such a person. True, neither Section 161 nor section 164 are limited in their application to accused persons and but for the reasons that hereinafter follow, would protect a person whose conduct is being enquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of sections 161 and 164, in terms, could not be said to be applicable. 13. It was then urged that the material on record if taken on its face value without any rebuttal whatsoever, it could not be said on any reckoning, that the petitioners have committed the offences with which they have been charged. 14. The petitioners are charged with an offence u/s 135 (1) (b) of the Customs Act on the basis of recovery from them of certain nylon sarees, cameras and nail-cutters of foreign origin. In their statements, the petitioners have made an almost clean breast of their past activity as indeed the manner in which they came by the seized goods in relation to foreign goods the intention with which they have kept these goods and what they proposed to do with these goods. It is also patent on their statements that none of them had any authorisation to import the goods or had paid any duty on the importation of the goods. Section 135 (1) (b) is attracted, if any, person acquires possession of or is in any way concerned in carrying, removing, depicting, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on the learned Magistrate, who has framed the charge, and if ultimately he is bound to accept that decision, sarees would not attract the presumption. 16. The charge in relation to the seized goods would not be justified unless there was some material on the record which may justify a possible conclusion that the goods were smuggled, without the aid of the presumption of section 123. It was urged that on a fair reading of the statements of the petitioners, it is established that the goods had been smuggled into the country by the various persons and on different occasions of which the details have been given. Clause (p) of Section 111 was also pressed into service to justify charge being framed. Clause (p) renders liable to confiscation any notified goods in relation to which any provisions of Chapter 1VA or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened Chapter IVA deals with the detection of illegally imported goods and prevention of the disposal thereof. Section 11 (b) of this Chapter empowers the Central Government to notify goods. Section 11 (c) in this Chapter provides that every person who owns, possesses or contr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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