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TMI Blog1964 (12) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... sed No. 1 Govind Narayan Bengali, who was jointly tried, died after the close of the case but before the pronouncement of the judgment. Accused Nos. 11, 12, 13 and 16 - Shankar Aitwar Koli, Usman Saleh, Adam Budda and Gulam Nabi have been acquitted. (2) In short, as a result of the judgment only 8 of the accused, namely, accused Nos. 2, 3, 5, 6, 7, 8, 9 and 10 have been convicted of offences under section 120-B. Indian Penal Code, for having conspired to smuggle gold into India without a valid permit and thereby evading duty payable thereon, and to evade the prohibition enacted in this matter by notifications made under certain various enactments. Only accused Nos. 5, 8 and 9 have appealed. (3) The following facts are no more in dispute, and there is ample evidence establishing them. In April or May 1961, Police Inspector Mr. Bhesadia (P.W. No. 30) attached to the Anti-Corruption and Prohibition Intelligence Bureau, Bombay, received certain information about smuggling operations, and he took certain measures to pursue the information and to arrange for watch. On 13th of August 1961, he received certain information at his residence in Dhobi Talao that smuggled gold was likely to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso some figures. The articles were returned. Bhesadia also in the presence of the panchas searched the room as well as the cupboard in the room, but it contained only certain personal papers of the accused No. 1. Bhesadia then sent of the accused No.1 . Bhesadia then sent Rajaram out of search whether any car was waiting to take away the smuggled gold in view of the answers he received from the suspects. Rajaram returned after about an hour and half, by about 11-30 a.m., and reported that he was not able to find any car. Bhesadia again sent Rajaram to phone to his (Bhesaida's office and latter also asked Rajaram to ring up the customs people, as well as his superior officer, one Police superintendent Shete. In response to the telephone messages, Sub-Inspector Lagli, Sub-Inspector Soman and sub-Inspector Kulkarni arrived a little before 2 a.m. Kulkarni was kept one guard, and the other two Sub-Inspectors were sent for making confidential inquiries. At about 2. a.m.,. Assistant Collector of Customs, Mr. Jokhi, an officer of the Central Excise, Randive, Deputy Superintendent of Central Excise (P.W. No. 22), and some other officers of the Central Excise Department arrived. Bhesadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared in the presence of the panchas is dictated by Warty and was taken down by Mr. Gupte, another Excise Officer, Exhibit N is signed by Mr. Warty and by Bhesadia. It is also signed by accused No.1 Govinda from whose house the property had been seized, as well as by Kashinath, the first prosecution witness in this case. (4) Now, these five persons in the house of Govinda were also taken to the Central Excise Office situate somewhere nearabout Churchgate. It appears that Mr. Warty had gathered from the interrogation that the gold was brought in a mechanised boat "Al-Sabri" formerly named "Sufilla Mohmadi" Mr. Warty, therefore, put a trunk call to the custom officer at Veraval for a intercepting the mechanized boat "Al-Sabri". However, "Al-Sabri" could not be intercepted. (5) These five persons were detained at the Excise Office for the night and next morning (15th ) the statements of all the five persons have been recorded by different officers. The statement of accused No. 1 Govind at Exhibit Z-27 was recorded by Mr. Rane (P.W. No. 26), Deputy Superintendent of Excise. The statement of Dharma , accused No. 2 at Exhibit Z-28 was recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndu Rangabhagat and one Devchand Motiram (P.W. No. 2) voluntarily surrendered on 8th of September 1961 and on the same day their statements have been recorded by Mr.Randive (P.W. No. 22). Accused Nos. 5m 6 and 7 were arrested on 11th of September 1961 and produced before the Presidency Magistrate. They were on bail during the trial. Devchand has been examined as prosecution witness No. 2. Similarly, it is the prosecution case that accused No. 9 Ayub Kassim Kika, voluntarily surrendered on 26th November 1961 and gave his written statement in his own hand in Gujarati on 26th of November 1961. On the same day he was arrested and produced before the Magistrate. He was also on bail during the trial. The other accused were found and their statements also have been recorded on various different dates. Except the statement of accused Nos. 14, 15 and 18, the statements of all the remaining accused have been recorded on different dates as and when they were found. It is not necessary for the purpose of this appeal to go in detail as to the dates on which the statements of the remaining accused were recorded. It may be, however, stated that the finding of the accused and the recording of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a leave and license basis, on the Marine Drive but not on the sea face, in May 1960. The telephone number of this place is 242935. Accused Nos. 14 and 15 also took another flat on leave and licence basis from 1st November 1960 in a building known as "Avillion" situate at Little Gibbs Road, Malabar Hill, Bombay. Accused No. 9 with the help of one Issak Mohomed had taken a room in a flat of Mohiddinkhan near the J.J. Hospital. The room was taken on leave and licence basis from 1st of August 1960, for 11 months, and according to the prosecution, these three places were the operation centres of accused Nos. 14 and 15. Now, in pursuance of the aforesaid conspiracy to smuggle god, it is the prosecution case that the accused have in fact smuggled gold on four occasions in four trips, to which we will presently advert. It is also the prosecution case that some of the accused i.e. accused Nos. 14, 15, 1 and 9 have participated in smuggling gold in all the four trips. While others have participated in smuggling gold in one or more trips. We would in brief state the part played by these different accused in these four trips as well as trip referred to as Reconnaissance trip in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and at Andheri they boarded a local train and got down at Matunga. At Matunga the party separated Kashinath and Hira were taken by Ayub in a taxi to his room near the J.J. Hospital. There, Kashinath and Hira removed the jackets and handed them over to accused No. 9 Ayub. Ayub paid ₹ 5 each to these two persons. Then Kashinath and Hira returned to Govind's house at Varsova. At that time, at the house of Govind were sitting, Devchand, P.W. No. 2, and Laxman Padma, accused No. 5. On that evening, Ismail returned to Dubai. Kashinath reached him in a country boat to the foreign vessel which was standing in the mid stream waiting for him. Three or four days thereafter, Govind paid ₹ 100 to Kashinath. Thus, according to the prosecution, in the first trip, accused Nos. 1, 9, 10, 15, Kashinath and Ismail participated. It may be stated that accused No.11, Shankar, whose boat was used in this trip, had also gone in the boat, and therefore, it is the prosecution case that he also had participated in this trip. (13) The Second Trip : This trip took place sometimes in April or May 1961. Govind had arranged the boat of one Dharma Pandu, P.W. No. 3. In this boat travelled Kashina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... went Haroon, accused No. 8, Ayub accused No. 9, Noor Mahomed, accused No. 4, Haji Sattar, accused No. 15. The car was driven by Ayub. Thus, according to the prosecution, in the smuggling of gold in this trip participated accused Nos. 1, 4, 5, 8, 9 and 15, and prosecution witnesses Kashinath and Dharma Pandu. The gold brought in this trip was 28,000 tolas valued at ₹ 39,20,000. (15) Fourth Trip : And this brings us to the 4th trip, when Inspector Bhesadia discovered the smuggling. In this trip Govind engaged the boat of Hira., and in this boat on 13th August 1961, travelled Kashinath, accused No. 6, accused No.7, and Devchand. The local boat this time went to another place called Tera, very near the Varsova beach. After the usual procedure of signals , both the boats were brought together and 18 packets tied in gunny bags were trans-shipped from the foreign vessel to the local boat. Ismail came in the local boat. On the shore were present accused No.1, Govind, accused No. 5, Laxman, accused No. 10, Hira and accused Nos. 4, 8 and 9 were waiting on the road with a car nearby. Govind and Kashinath took Ismail to Govind's house. Then both of them returned and the 18 packets o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence on the basis of which the learned Magistrate has convicted them. (30) Accused No. 5 : Laxman Padma Bhagat is a fisherman of Varsova. According the prosecution, he has participated in the 2nd, 3rd and the 4th trips. He was waiting at the shore when gold was brought in a local boat to the shore of Varsova in the second trip. He was also waiting at the shore when the local boat brought gold to the shore of Varsova in the third trip. He thereafter carried the packages from the shore to the house of Govind and then put them in the luggage booth of the car. In the 4th trip also he removed gold from the shore to the house of Accused No. 1, Govind. But when he discovered that the police party had come, he along with accused Nos. 6 and 7 and witness Devchand ran away. The prosecution also alleges that he had participated in the transfer of the mechanised vessel "Safina Mohamedei" to accused No. 3. The evidence on the basis of which the prosecution has place reliance to prove these overt acts against accused No. 5 , is the evidence of these two witnesses Kashinath and Devchand. The confession of accused No. 5 himself recorded by Ranadive on the 8th September 1961, is Exh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocal train to Matunga. There, accused No. 9, Kashinath and Hira went in a taxi and Ismail and accused No. 15, went in a different way. Accused No. 9, then took Kashinath and Hira to his room, and there Kashinath and Hira gave the two jackets to accused No, 9 which he put in a steel almirah in his room. Accused No., 9 then gave them ₹ 5 each. In the second trip, accused No. 9 along with accused No. 15 were waiting in the car, and he along with accused No. 15 carried gold in that car, after it had been pout in the luggage booth. In the third trip also he came in the car and carried gold in the car. At this time, it is accused No., 9 who himself drove the car. In the fourth trip also he had gone to the house of Govind and was waiting near the car to carry gold, along with accused No. 8. But as the police raided the house of Govind, he along with accused No. 8 ran away. The evidence on which reliance has been placed by the prosecution is the evidence of Kashinath, his own confession. Exhibit Z-33 and the confession, of accused Nos. 1, 4 and 10. Besides this, the prosecution has also referred to the evidence of his landlord Mohiddinkhan, in whose flats he was residing, as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute that the aforesaid officers who have recorded the confessions are officers of the Central Excise Department. The first question,. therefore, that arises is whether they are also Customs Officers. There can hardly be any dispute that the present case which has been inquired into by them is a case falling under the Customs Act. The prosecution itself ...............offences falling under section 167 (81 of the Sea Customs Act read with section 120. I.P.C. Mr. Gandhi in the course of his argument has brought to our notice two notifications on which he places reliance to show that these officers are also officers of Customs Department. The first notification is issued by the Central Board of Revenue, bearing C.B.R. Notification No. 56 Customs., dated 24th July 1951, and No. 33, dated 1st March 1952 and No. 77-Customs dated 26th September 1953. It is issued by the Central Board of Revenue in exercise of the powers conferred on it by sub-section (1) of section 3 of the Land Customs Act. 1924. Sub-section (1) of section 3 of that Act provides that the Central Government may by notification in the official gazette, appoint, for any area adjoining a foreign frontier and specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Officers who have been appointed or may be appointed from time to time to be such under sub-s(1) of section 3 of the Land Customs Act, 1924 (XIX of 1924), to be officers of Customs for their respective jurisdictions and to exercise the powers conferred and to perform the duties imposed on such officers by the first named Act." The effect of this notification is that all persons who have been appointed under section 3 of the Land Customs Act, as Land Customs Officers, are, by virtue of this notification, automatically appointed as Officers under the Sea Customs Act, Mr., Pardiwalla, however, argues that on reading these two notifications, it may appear that the officers who have recorded the confessions were officers under the Land Customs Act, but they have not been in law validly appointed officers under the Sea Customs Act by reason of the notification dated 29th September 1951. According to Mr. Pardiwalla, the Central Government has no power under section 6 to appoint an officer by a notification. According to him the appointment must be by name. The argument is founded on the difference in the language between sub-s(1) of section 3 of the Land Customs Act and the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is whether an officer of the Central Excise Department when acting in his capacity of an officer under the Sea Customs Act, still continues to be a police officer. We have already stated that the decision on which reliance has been placed in support of the contention that the officers of the Central Excise are police officers is . Before turning to this decision, and the earlier decisions of Their Lordships in Barkat Ram's case, it would be convenient first to refer to certain provisions of the Central Excises and Salt Act, hereinafter referred to as the Central Excise Act, on the basis of which this contention is founded. (35) Chapter III of the Central Excise Act, deals with the powers and duties of officers and landholders. Section 18 empowers the Central Government to confer power on the Central Excise Officer of arresting any person whom he has reason to believe to be liable to punishment under this Act. Section 14(1) empowers the Central Excise officer duly empowered by the Central Government in this behalf, to summon any person whose attendance he considers necessary either to give evidence or to produce a document. Sub-s. (2) of S. 14 provides that all persons so summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate. Section 21, on which the principal argument is founded, reads :- "21. (1) When any person is forwarded under section 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him. (2) For this purpose the Central Excise Officer may exercise same powers and shall be subject to the same provisions as the office-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case: Provided that - (a) if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate; (b) If it appears to the Central Excise Officer that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the Central Excise Officer may direct, to appear, if and when so required before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and is for these purposes empowered to act in all respects as an officer-in-charge of a police station. No doubt unlike an officer-in-charge of a police station, he is not charged with the duty of the maintenance of law and order nor can he exercise the powers of such officer with respect to offences under the general law or under any other special laws. But all the same, in so far as offences under the Excise Act are concerned, there is no distinction whatsoever in the nature of the powers he exercises and those which a police officer exercises in relation to offences which it is his duty to prevent and bring to light. It would be logical, therefore, to hold that a confession recorded by him during an investigation into an excise offence cannot reasonably be regarded as anything different from a confession to a police officer. For, in conducting the investigation, he exercises the powers of a police officer and the act itself deems him to be a police officer, even though he does not belong to the police force constituted under the police Act.' It is clear from the aforesaid observations that the expression "police officer" in section 25 of the Evidence Act is not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein have power to grant bail. It is also true that sub-section (2) thereof provides that the said officers may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case. But still there is a difference between the provisions of section 21 of the Central Excise Act and the provisions of the Bihar Excise Act which was being considered by Their Lordships. The Excise Officer in the case which was considered by Their Lordships possessed all the powers under the Criminal Procedure Code, relating to investigation of offences, including that of sending a charge-sheet to a Magistrate and forwarding a person for trial; whereas, section 21 has not expressly conferred that power on an officer under Central Excise Act. He exercises powers under the Code of Criminal Procedure only in respect of investigation. There is no power in terms conferred on him to make a report or send a charge-sheet to a Magistrate, forwarding a person for trial. It, therefore, cannot be said that the decision on which reliance has been placed fully s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions in this case are recorded by the Superintendent or Deputy Superintendents. It is not in dispute that they are officers lower in rank than the Assistant Collector of Customs. Their Lordships of the Supreme Court in Barkat Ram's case have considered the provisions of the Sea Customs Act, and have held that the Customs Officer is not a police officer within the meaning of section 25 of the Evidence Act. Section 21 of the Central Excise Act also does not make an officer of the Central Excise Act a police officer for all purposes. His powers of arrest or summoning persons for examining them a witnesses or searches are only in respect of offences under the Central Excise Act. After the arrest of the person he is to be forwarded to a Central Excise Officer empowered to send the person to a Magistrate, and it is only this officer who is empowered to inquire in to the charge against the person who is reasonably believed to be liable to punishment under the Excise Act, and it is only for this limited purpose that the powers of investigation of a police officer-in-charge of a police station are conferred on him, and empowered to exercise those powers under the Code of Criminal Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by an inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." To attract the provisions of section 24, the following facts need be established : (a) That the confession has been made by an accused person to a person in authority; (b) that it must appear to the Court that the confession has been caused or obtained by reason of any inducement, threat or promise proceeding from a person in authority; (c) that the inducement, threat or promise must have reference to the charge against the accused person, and (d) the inducement, threat or promise must in the opinion of the Court be such that it would appear to the Court that the accused in making the confession believed or supposed that he would by making it, gain any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not answer, he would render himself liable to be prosecuted under section 228, Indian Penal Code, for causing interruption to a public servant in such a judicial proceeding. If, on the other hand, he answers or gives false evidence, he would be liable to be prosecuted under section 193, Indian Penal Code, for giving false evidence in a judicial proceeding. In short, a person summoned under section 171A, is told under the threat of criminal prosecution that he must state what he knows and he must state that truthfully. It is the argument of Mr. Jethmalani that this compulsion contained in the provisions of section 171A is threat within the meaning of section 24 of the Evidence Act. To each of the accused person the provisions of section 171A have been explained by the officers who recorded their statements. A threat, therefore, was given by the person in authority who has recorded the statement. The confessions are, therefore, hit by the provisions of section 24 and inadmissible in evidence. In support of this argument, Mr. Jethamalani also referred us to the provisions of section 164 of the Criminal Procedure Code, relating to the recording of confession by a Magistrate. He argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch provides that the inquiry under section 171A is deemed to be judicial proceeding within the meaning of sections 193 and 228 of the Indian penal Code, sub-section (4) not having been explained to the persons, it cannot be said that any threat as such was given to the persons whose statements were recorded. Now, the evidence which is given by Ranadive runs counter to the record made by him in recording the statements. We find practically the same endorsement at the commencement of every statement in the following terms:- "The provisions of section 171A of the Sea Customs Act, 1878, have been explained to me. Accordingly I am bound to state the truth in the enquiry you are making." This endorsement as to what happened at the time various statements were recorded is clear and not ambiguous. It does not say that the officer who recorded the statement had explained only a part of section 171A, i.e. sub-section (3) of section 171A and not the other parts. The contemporaneous record made thus is in conflict with the evidence given in the Court by Ranadive. In the circumstances, we find it difficult to accept the oral evidence which runs counter to the aforesaid record made. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m were in respect of the conspiracy to smuggle gold and the specific instances in which they had participate in smuggling gold. In explaining the provisions, the officer was not holding any hope to them that they would gain any advantage in reference to those proceedings. It does not, therefore, appear to us that in merely explaining the provisions of section 171A., there was any threat given by the officers recording the statements which could have raised any hope in the minds of the persons making the statements or led them to suppose that they were going to gain any advantage in reference to the proceedings against them relating to smuggling of gold. These being the circumstances of the case in our opinion, the statements recorded by these officers are not hit by the provisions of section 24 of the Indian Evidence Act. (40) Mr. Jethmalani has referred to Halsbury's Laws of England, 3rd Ed., Volume 10, page 473. The passage read by Mr. Jethmalani from Halsbury is founded on the decision in The Queen v. Thompson, 1893 Q.B. 12. It would be sufficient to refer to that case only. Now, the facts of this case were a prisoner was tried for embezzling the money of a company. The evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s thereunder. Therefore, the threat which was conveyed to the persons whose statements were recorded did not emanate or proceed from the provisions of the statue, but from these officers themselves. The argument is two-fold, in the first instance, Mr. Jethmalani argues that the officers who recorded the statements are officers of the Central Excise Department. Section 171A only empowers the officers appointed under the Sea Customs Act. to record statements under the provisions of the said section. Ranadive and other officers were therefore not justified in recording the statements under that section. It is not necessary to deal in detail with this argument. We have already held that these officers have been duly and validly appointed officers under the Sea Customs Act, by reason of the aforesaid notification issued by the Central Government on 29th September 9151. We have also held that in holding the inquiry in respect of this case, these officers were acting in their capacity as officers appointed under the Sea Customs Act and not officers of the Central Excise. Therefore, in recording the statement under section 171A of the Sea Customs Act, they did not go beyond their powers, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer, merely by giving evidence. Having regard to the phraseology used in section 171A of the Act, and having regard to the fact that there is no procedure prescribed for issuing a service of summons, and no form of summons having been prescribed, in our opinion, the section does not contemplate the service of a summons as a condition precedent enabling the Customs Officer to record the statement under section 171A of the Sea Customs Act. The Customs Officers were not therefore acting without jurisdiction in recording the statements even though in some cases there had been no service of a written summons as such on some of the persons. It is clear that the endorsement at the commencement of each statement to one of which we have already referred leaves no doubt that before their statements were recorded, the officers concerned had explained the provisions of section 171A of the Act to those persons. The persons. therefore, had been duly required to make statements, and there is no invalidity in the matter of recording their statements. An argument also has been advanced before us by Counsel for the appellants, that these officers apart from explaining the provisions of section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unded on the experience gained in the past that an accomplice is unworthy of credit, unless he is corroborated in material particulars. In other words, exceptions apart, ordinarily a presumption should be raised that the particular accomplice, whose evidence it has to consider is unworthy of credit, unless he is corroborated in material particulars. However, when we turn to the latter part of illustration (b), it becomes clear that the Legislature itself has envisaged cases where such a presumption may have no application. In inter alia deals with case falling under this very maxim. It provides : "But the Court shall also have regard to such facts as the following in considering whether such maxims do or do not apply to the particular case before it.....................................As to illustration (b), a crime is committed by several persons, say, A, B, C and D. All the criminals are captured on the spot and kept apart from each other. Each gives an account of the crime, implicating D, and the accounts corroborate each other in such a manner as to render the previous concert highly improbable." Reading the relevant portion of S. 114 as a whole, together with secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty against any possible intercommunication that they do, the most careful mind, in a great degree, corroborate one another.' It would thus be seen that the Court finding the existence of statements of a number of participants in the crime corroborating one another is a relevant circumstance which could be taken into account in considering whether in a particular case corroboration to the evidence of an accomplice is required, and also in considering the nature and extend of the corroboration that is required before the evidence of an accomplice is accepted. It must be emphasised that each case would depend upon its own facts. No hard and fast rule can be laid down in this respect. The usual rule of prudence that has ripened more or less into a rule of law is that of the Court will require corroboration to the testimony of an accomplice before it acts on it, and this rule of caution has to be kept in view by a Court in appreciating the evidence of an accomplice, and keeping these principles in view, we would appreciate the evidence of Kashinath and Devchand. Now, the reason underlying the principle that the evidence of an accomplice requires corroboration has been succinctly put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show that the story of an accomplice that the accused committed the crime is true not merely that the crime has been committed but that it was committed by the accused." The question has also been recently considered by this Court in Choraria's case, Criminal Appeals Nos. 960 to 964 of 1962, D/- 17-1-1964 (Bom) and it has been observed : "Even in respect of the evidence of an accomplice, all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. Corroboration need not be by direct evidence that the accused committed the crime. It is sufficient even though it is merely circumstantial evidence of his connection with the crime." In our opinion, therefore, having regard to the decisions to which we have just now referred, it is not possible to fully agree with the contention of Mr. Kavelkar that in considering the evidence of an accomplice, the evidence of another accomplice or the self inculpatory confession of the co-accused are wholly or totally irrelevant. It is of course true that the evidentiary value of the evidence of another accomplice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another accused Gurudayalsingh had played an important part in implicating the appellant Kashmira Singh. Their Lordships, in view of the definition of the "evidence" contained in section 3 of the Evidence Act, held that the confession of a co-accused is not a substantive piece of evidence on which conviction of an accused could be founded, but it could be used under section 30 only for lending assurance to the mind of the Court about the truthfulness of other evidence, which if believed, would establish the guilt of the accused. Considering the question as to whether it could be used as corroboration to the evidence of an accomplice or an approver, Mr. Justice Bose speaking for the Court, at page 530 of the report (SCR) : (at pp. 160-161 of AIR) observed :- "Then, as regards its use in the corroboration of accomplices and approvers. A co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the 'evidence' is not on oath and cannot be tested by cross-examination. Prudence will dictate the same rule of caution. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a witness against him." To bring into operation the provisions of clause (3) of Article 20, two conditions have to be fulfilled: (1) that a person must be one who has been accused of an offence, and (2) he must be compelled to be a witness against himself. It is the protection given to a person accused of an offence, and the protection is against he being compelled to be a witness against himself. It is the argument of Mr. Pardiwala that the statement of accused No. 9 is of date 26th November 1961. Prior to that date statements of various other accused were recorded. Similarly statements of prosecution witnesses Kashinath, Devchand and Dharma were also recorded much prior to 26th November 1961. These accused as well as the prosecution witnesses held in their statements stated the part played by accused No. 9 in the conspiracy as well as in the four trips in which gold had been smuggled. Accused No.9 thus was a person accused of an offence within the meaning of clause (3) of Article 20 on the date he made the statement. Before accused No. 9 had made the statements, he had been explained the provisions of S. 171-A of the Sea Customs Act, and he was, under the threat of a crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution." Their Lordships have held that as the first information report had been lodged with the police, the appellant Sharma and others were persons accused of an offence. The question was next considered in Mohamed Dastagir v. State of Madras, AIR 1960 SC 756. Facts in that case were that the appellant had gone to the bungalow of a Deputy Superintendent of Police to offer him bribe in a closed envelope so that he might drop the action registered against him. The police officer threw the envelope at the appellant. The envelope fell down, and was picked up by the appellant. Later while the appellant was still in the bungalow, he was asked by the police officer to produce the envelope which he had thrown down. The appellant took out from his pocket some currency notes and placed them on table without the envelope. The notes were seized by the police officers and his officer rubber stamp seal was placed on them in these circumstances, the question considered was whether in requiring the appellant to produce the notes, there was any compulsion within the meaning of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t formal accusation against the appellant. At page 39, Their Lordships observed.:- "In such a case there is no accusation either formal or otherwise against any specified individual. There might be allegations that the affairs are irregularity, improperly or illegally managed, but who would be responsible for the affairs which are reported to be irregularly managed is a matter which would be determined at the time of the inquiry. At the commencement of the inquiry, and indeed throughout its proceedings, there is no accused, no accuser, and no accusation against any one that he has committed an offence. In our opinion, the general inquiry and investigation in relation to the affairs of a company thus contemplated cannot be regarded as an investigation which supports that accusation contemplated in Article 20(3) of the Constitution. (46) It appears that the observations in Sharma's case in respect of the clause "to be a witness" led to difference of opinion as to its import. The question was, therefore, again considered by a Bench consisting of eleven Judges, in State of Bombay v. Kathi Kalu and the conclusions arrived at have been summarised by the learned Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and Deputy Superintendents of the Central Excise, are Officers below the rank of an Assistant Collector of Customs. Any statement made to them cannot, in any event, be an accusation made for the purposes of taking action against the accused person. In this context, it would be useful to compare the provisions of the Criminal Procedure Code in contradistinction with the provisions of the Customs Act. It may be mentioned that in Sharma's case, , Their Lordships were dealing with a case where the first information report had been lodged to the police. Chapter XIV in Part V of the Criminal Procedure Code, relates to the information to the police and their powers to investigate, and consists of sections 154 to 176. Section 154 relates to the information in cognizable cases. The section makes it obligatory on the police officer to enter it in the book kept for that purpose. Section 155 relates to the information in non-cognizable cases. Section 156 provides that without the order of the Magistrate, an officer in charge order of the Magistrate, an officer in charge of the police station can investigate a cognizable offence, and in case of a non-cognizable offence , on an order made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. The statement made by accused No.9 on 26th November 1961 therefore, does not fall within the mischief of clause (3) of Article 20 of the Constitution. This being our conclusion on the first part, it is not necessary to consider whether accused No.9 was compelled to be a witness against himself because the provisions of section 171-A were explained to him before he made the statement. Mr.Pardiwalla, in support of his contention had also placed reliance on certain observations in the decision of a Division Bench of the Madras High Court reported in Rainbow Trading Co. v. Assistant Collector of Customs . . The observations on which reliance has been placed are at page 441. "t is argued that if it were to be recognised that there is no prohibition against compelled testimony in proceedings under the Customs Act. the guarantee under Article 20(3) itself, would come illusory as the confession can be obtained first under section 171-A of the Sea Customs Act and then used for a prosecution. We cannot agree that it would be so. If for example a smuggler gives himself away during an examination under section 171-A that evidence will nevertheless constitute a compelled testimony a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to say that the Customs Officers in not maintaining a diary have failed to follow the procedure prescribed by law. The principal object of the Customs Act is not detection of a crime. The Customs Officers are not primarily concerned with the detection and punishment of a crime; but the Customs Officers are mainly interested in the detection and prevention of smuggling of contraband articles and safeguarding recovery of customs dues. They are more concerned with the smuggled goods than the offenders who smuggle goods. A suggestion was made to Kashinath in his cross-examination that his statement was not recorded on 15th August , but was recorded later, and Kashinath has denied it. The Officers who have recorded the statements are responsible officers. Absence of provision in the Customs Act, requiring them to maintain a diary would not by itself be a good ground for rejecting their evidence without there being sufficient reason to discard it and none has been pointed out to us. Govind appears to be a literate person. He has signed each page of his statement and at the end of his signature he has put the date on each page, and the date is 15th August 1961. There is also other evid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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