TMI Blog1955 (8) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 172, Sea Customs Act, and obtained four search warrants on 16-5-1955, for search of various premises and godowns including the shop and the residence of one of the directors, at No. 5, Bentinck Street. Under Section 172, Sea Customs Act, a Magistrate may, upon application of the Customs Collector, stating his belief that dutiable or prohibited goods are secreted in any place within the local limits of the jurisdiction of such Magistrate, issue warrant for search of such goods. Such warrant is to be executed in the same way and has the same effect as a search warrant issued under the law relating to criminal procedure. The form of the search warrant issued is important. The search warrant issued in respect of 5 Bentinck Street Is as follows : Warrant of search after information of particular offence (under Section 172, Sea Customs Act, 1878). To Rummaging Inspector (Intelligence) Customs House, Calcutta. Whereas information has been received before me of the illegal importation of goods in contravention of the Sea Customs Act, Import and Export (Control) Act, and Foreign Exchange Regulations Act, and it has been made to appear to me that production of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the reverse : Search warrant executed, copy of search list attached. Signed (Sd.) C. Basu Dt. 9-5-55. 5. The search list consists of two bundles of shark's skin and velvet and several files and documents. 6. So far as the godown at No. 16 Mangoe Lane is concerned, the search warrant was obtained on 20-5-1955 and thereafter the godown was opened for effecting a search. It appears from the affidavit of Mr. Shrivastava that the petitioners promised to produce certain documents, but kept on postponing production and finally, Instead of producing the documents, the petitioner made the present application. 7. Section 171A, Sea Customs Act, was introduced by the Sea Customs (Amendment) Act, 1955, the relevant provisions of which are as follows : 171A. (1) Any Officer of the Customs duly empowered in the prevention of smuggling, shall have power to summon any person whose attendance he considers necessary, either to give evidence or produce documents or any other thing, in any enquiry 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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally imported into India on payment of proper Customs duty and supported by valid licence. The second notice of the 19th is a summons purporting to be under Section 171A(2), Sea Customs Act, which has been introduced by the Sea Customs (Amendment) Act, 1955, No. 21 of 1955. It called upon the said Mr. Jajodia, as partner of the petitioner firm, to produce a number of files which were found missing, including the documents thereof, within a week from the date of the issue of the summons. The summons was issued by D. G. Banerjee, Rummaging Inspector (Intelligence). 10. A third notice was issued on 20-5-1955 under Section 171A, Sea Customs Act. By this notice, J. Smith Chief Inspector, Customs House, Calcutta, summoned Messrs Jugalkissore, Mannalal, Keshup Dev, and Shawarmul Jajodia, partners of the petitioner firm, to appear before him, on Saturday, the21st May '55 at the Customs House, Strand Road, Calcutta. This is exhibit 'B' to the petition. 11. On 23-5-55 a fourth notice was issued by D. C. Banerjee, Rummaging Inspector (Intelligence) under Section 171A, Sea Customs Act, upon the petitioner firm, stating that information had been received that goods in the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enables the Customs Authorities to summon a person accused of an offence, either to appear or to produce documents which are likely to incriminate such person, as this offends against Article 20(3) of the Constitution. The respondents should be directed to forbear from enforcing the notices purporting to have been issued under the impugned section. 2. Assuming that the search warrants are valid, the warrants do not authorise the Customs Authorities to seize either the goods or the documents and therefore such seizure is invalid and illegal. In any event, the seizure of the documents cannot be supported in law. 3. That the seizure cannot be supported under Section 178, Sea Customs Act, because there is no evidence to show that the things seized are liable to confiscation under the Sea Customs Act. 4. That the seizure being illegal, the goods and the documents should be directed to be restored to the petitioner. 15. I shall now take the first point, namely, whether Section 171A, Sea Customs Act, introduced by the Sea Customs (Amendment) Act, 1955, is ultra vires or not. Mr. Sen has conceded that the section as a whole is not ultra vires of the Constitution. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny person who knowingly and with intent to defraud the Government or evade prohibition on restriction, acquires possession of, or is in any way concerned with carrying removing depositing harbouring, keeping or selling, or in any manner dealing with any goods which nave been unlawfully removed from the warehouse or are charged with the duty which has not yet been paid etc. Such person shall on conviction before the Magistrate, be liable to imprisonment for a term not exceeding two years or with fine or with both. 17. Mr. Sen points out that Ch. XVI of the Sea Customs Act, is headed offences and penalties , and in fact it commences with the words punishments for offences -- the offences mentioned in the third column of the same with reference to such offences respectively . If a person commits an 'offence' as specified in Section 167 (8) the 'penalty' is confiscation, as also a penalty not exceeding three times the value of the goods or not exceeding ₹ 1000. 18. Mr. Sen argues that his client, namely, the partners of the petitioner firm, have plainly been accused of contravention of certain legal enactments which are offences, if committed, and are ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would mean an initiation or starting of proceedings of a criminal nature before a Court of Law or Judicial Tribunal in accordance with the procedure prescribed in the Statute which creates the offence and regulates the procedure . 19. It would be seen that in the case cited above, the learned Judge was dealing with Article 20(2), where the word 'prosecuted, is used, and it was held that prosecution could only refer to a criminal trial. It is true that the learned Judge did refer to Section 20(3). The question is, whether it was intended to lay down that in order that Article 20(3) should apply, the testimonial compulsion should be actually during the course of a criminal trial? Mr. Kar has also referred me to my own unreported decision dated 27-3-1955, in 'How Jenn Chyan v. S.K. Srivastava (B)'. In that case certain persons were called upon by the customs Authorities to show cause why action should not be taken against the petitioner for contravention of Clause 37(c) and (d) and of Section 167, Sea Customs Act, read with Section 23A, Foreign Exchange Regulations Act, 1947. Concurrently there were criminal proceedings against the parties for having committed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a). The word 'punishable' has a distinctive meaning and it indicates that the act or omission will entail forfeiture, fine or imprisonment. Anything which is punishable that is to say, any act or omission which entails forfeiture, fine or imprisonment, is an offence, and therefore certainly is of a criminal nature. If we confine ourselves to Section 167(8), we find that the Penalty is confiscation as also payment of a 'Penalty'. Mr. Sen argues that 'Penalty' is but another name for a fine. Mr. Kar however argues that the Customs Authorities cannot themselves proceed to realise the penalty unless they have custody of the goods (Section 193). He further points out that in such a proceeding the Customs authorities cannot administer oath. It is not necessary however to confine ourselves to Section 167(8), because, as I have shown above, the offences with which the partners of the petitioner firm are accused, consist) of infringements of several Acts, which, if established, may result in proceeding's before a Magistrate, that is to say, a full-fledged criminal trial ending in imprisonment or fine or with both. 22. The position therefore amounts to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mass of records were seized from various places The petitioners made an application before the Supreme Court under Article 32 of the Constitution, praying that the search, warrants may be quashed, and asking for return of the documents. One of the points taken was that the search to obtain documents in regard to any offence amounted to compulsory procurement of incriminating evidence from the accused himself, and constituted a violation of Article 20(3) of the Constitution. Jagannadhadas J. elaborately reviewed the origin and intendment of Article 20(3). reviewing the English and American authorities. He summed up as follows: Broadly stated the guarantee in Article 20(3): is against 'testimonial compulsion'. It is suggested that this is confined to oral evidence from a person standing his trial for an offence when called to the witness stand. We can see no reason to confine the content of the Constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantialpurpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Article 20(3) is 'to be awitness', A perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect, the calling of a person to give evidence and calling upon him to produce documents which may reasonably be need as evidence against him, stand on the same footing. 24. Mr. Kar points out that in the case quoted above there was actually a first information report. In my opinion that is not a fatal objection. The question is whether an accusation has been made that an offence has been committed and whether the investigation may lead to a prosecution for the alleged offence. A formal accusation need not depend upon a F. I. R. being filed. It depends on the facts of each case. Mr. Sen pertinently points out that the protection against testimonial compulsion is most urgently required not at a trial but at a point of time preceding it. During the course of a trial an accused is under the protection of Court. It is only at a point of time, when the police or other authorities are gathering materials for launching a prosecution, that the accused requires the greatest protection. Mr. Sen points out that in this particular case it has been definitely stated that his clients have contravened the provisions of the Sea Customs Act, Import and Export (Control) Act and Foreign, E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Kar has sought to meet this point by saying that the proceedings before the Customs authorities are purely administrative and, therefore, Article 20(3) is not attracted. 26. In my Opinion, The Argument of Mr. Sen is sound on this point and should be accepted. It will be observed that under Section 171A, Sea Customs Act, the enquiry has been expressly declared to be a judicial proceeding within the meaning of Sections 193 and 228, Penal Code. Also it lays down that a person sumoned shall be bound to state the truth upon any subject respecting which he is examined, or make statements and produce such documents and other thins as he may be require to do. Mr. Kar points out that in such proceedings the customs officers have not the power to administer oath. In view, however, of the provisions or Section 171A, this does not seem to be of much consequence. The proceedings are in the nature of judicial proceedings and the examination is in the nature of depositions before a Court. It may be that at that stage, it cannot be characterised as a full-fledged criminal trial. It may further be that in respect of offences which are punishable by fine or imprisonment, the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s bad. This, therefore invalidates the three notices issued respentively on the 19th May and the 23rd May 1955, by D. C. Banerjee and the notice dated the 20th May, 1955, issued by J. Smith. 27. The next point is with regard to the seizure of the goods and documents. These stand on a different footing and must be treated separately. I shall firstly deal with the goods. The power to issue search warrants is to be found in Section 172, Sea Customs Act. A Customs Collector has under this section to make an application before a Magistrate, stating his belief that dutable or prohibited goods are secreted in any place within the local limits of the jurisdiction of such a Magistrate. The Magistrate then issues a warrant to search for such goods. Such search warrants are to be executed in the same manner and have the same effect as a search warrant issued under the law relating to criminal procedure. Much was said before me as to the provisions of Chapter 7 of the Criminal Procedure Code relating to search warrants. For example, Mr. Sen argued that a search warrant was not issued under Section 96, Cri. P. C. in a general form but that a warrant in a general form is only issued under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrant. In a search warrant issued under Section 172, Sea Customs Act. what is contemplated is search and secure by the Customs authorities, who are armed with such warrant. It is in aid of the preventive action contemplated by the Sea Customs Act to check violation of the said Act and the avoidance of payment of the revenue. It clearly contemplates that the Sea Customs authorities should be enabled to search for dutiable or phohibited goods which are secreted in any place. It is obvious that in most cases this will be a general search and would be in the nature of proceeding s under Section 98 of the Code applicable to stolen goods. If seizure is implied in such search, then obviously it contemplates that the Sea Customs authorities should take custody of the offending articles if found on search. There would be no point in producing them before a Magistrate. Mr. Kar has also argued that even if it is held that there was some defect in the warrant which did not include the power of seizure of the goods, the customs authorities had clear power under Section 178, Sea Customs Act, to seize the goods and, therefore, this Court should not make an order upon the authorities to und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eizure by the customs authorities illegal. To search for offending goods or documents would be meaningless if there was no power to inspect the same or seize any goods which upon inspection were found to be prohibited goods or goods which had avoided payment of duty, as also documents in relation to them. In my opinion, to hold otherwise would be to nullify the object with which the legislation has been enacted. In view of this, it is unnecessary to deal with Section 178 of the Act, but I might make a few observations therein. Although the affidavit of Mr. Srivastava is not very satisfactory on this point, it must be remembered that Ex. D clearly says that the customs preventive officers had come to the conclusion that the two bundles seized were prohibited goods and/or goods which had avoided duty. So far as the goods are concerned, Section 178 therefore applies. In any event it would be meaningless to direct the respondents to restore the goods which they could immediately seize once again under that very section. 30. For the reasons abovementioned, this application succeeds in part only. The rule is therefore made absolute to this extent that a writ of mandamus is issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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