TMI Blog1962 (10) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances which have necessitated the appellant to call to his aid the Fundamental Rights declared under Articles 14 and 20(3). 3. The appellant is a merchant at Madras trading under the name of Rainbow Trading Company, who for the purposes of his business, imports electrical goods from foreign countries. 4. Import trade is now regulated and controlled by the provisions of the Import and Export Control Act, 1947, the rules under which make it obligatory on the importer to obtain a suitable licence for the purpose and to conform to the conditions prescribed therein. Section 3 (2) of the Import and Export Control Act provides that importation of goods contrary to the restrictions imposed thereunder would be deemed so done under the Sea Customs Act and attract the procedure and penalties under the latter. Section 5 makes the contravention of an order made or breach of the conditions of the licence punishable. The Rules framed under the Act prohibit the licensee from importing any goods except of the description contained in the licence. The control imposed by the Act is in respect of all articles. All importable articles are classified under various heads in what is comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bs were cycle dynamo bulbs but on the contrary conformed to the bulbs permitted by the licence. At that stage the Department proceeded to examine the remaining packages; the contents of those packages revealed that there were torch bulbs for the import of which also a licence different from the one held by the twelve importers was necessary. If what the Department found were correct, there must have been a systematic attempt on the part of the importers to import one class of goods under a licence issued for a different class. At any rate, in that view, the bills of entry filed by the importers disclosed a misdeclaration of the goods. The Customs Department therefore issued a notice on 3-2-1958 to the appellant and the others to show cause why action should not be taken against them under the appropriate provisions of the Sea Customs Act. The appellant denied knowledge of the contents of the packages. The other persons who filed bills of entry gave likewise evasive replies. Curiously enough, none of the other importers ever came forward to identify the packages as theirs. 6. The Assistant Collector of Customs thereupon issued summons under Section 171-A of the Sea Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sankarlal v. Collector of Central Excise, Madras, AIR1960Mad225 , the learned Judge held that Article 20(3) of the Constitution would not apply to the case and that the summons issued were in accordance with law and that the appellant was bound to appear and give evidence. This however was made subject to certain directions contained in Sankerlal's case, AIR1960Mad225 , the relevant portion of which we give below: Except in those cases where the identity of the offender is at once known, various processes occur between the stage when an offence is committed and the stage when the offender is placed before the criminal Court to be dealt with according to law. The residents of the locality where the crime has been committed or those who are believed or alleged to have been in the vicinity of the scene when it was committed, may have to be examined. At this stage no one is an accused person in any sense of the term. The circle of enquiry would in time become smaller and the stage would be reached when there is a certain amount of suspicion against various persons. Even now it would be correct to say that there is no accused person. Then the final stage is reached when the inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code. This provision occurs in Chapter XVII of the Act, which deals with procedure relating to offences etc. Sections 169 and 170 relate to the power of search over a person who had landed and of vessels, conveyances etc., for ascertaining whether any breach of the law relating to Customs is being committed. Section 172 empowers the Magistrate to issue a warrant authorising the Customs official to search any place to see whether any prohibited goods are secreted and the succeeding sections relate to the arrest of the offender and of producing him before the Magistrate, of seizure of articles etc. Sections 182 to 185 confer powers in the Customs authorities to inflict departmental punishments, like confiscation of goods brought in in contravention of Customs Laws, and the imposing of a penalty. Section 186 enacts that the imposition of such punishments (being in their nature distinct from punishment for a criminal offence) will not prevent a prosecution for the offence disclosed. Thus, from the setting it will appear that Section 171-A is enacted to facilitate an enquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also to the rule in English law regarding testimonial compulsion. The Supreme Court examined in detail the scope of the Constitutional protection against self-incrimination in M.P. Sharma v. Sattish Chandra, 1978(2)ELT287(SC) . In that case the Registrar of Joint Stock Companies filed information with the Police to the effect that the accused had committed certain offence under the Indian Penal Code. The complaint also stated that to determine the extent of fraud committed it was necessary to seize the books of certain concerns in which the person charged was interested. On the basis of this information an application was made to the District Magistrate for the issue of a search warrant. The warrants that were issued were challenged under Article 32 of the Constitution before the Supreme Court on the ground inter alia that Article 20(3) of tile Constitution was contravened in that the person charged with the offence was compelled to produce documentary evidence in his possession which would, incriminate him. It was held that the search and seizure complained of in that case did not come within the ambit of protection guaranteed by Article 20(3). The judgment in that case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to let off the accused. It can therefore be said that the laying of an information against a person with the police will normally lead to a prosecution. But the same cannot be said of smuggling offences. An investigation by the Customs authorities need not necessarily end in prosecution, even if there are ample materials to sustain a prosecution. The Customs Officer is not a police officer. He is primarily concerned with the prevention or evasion of Customs Laws. With that view, the Collector of Customs is given authority to impose departmental punishments like confiscation of goods and the imposition of a penalty. As we shall show presently, these proceedings are not criminal prosecutions. After an investigation it would be open to the Customs authorities to impose on the delinquent only a departmental punishment; they are not obliged to prosecute. It cannot therefore be said that an investigation by the Customs authorities into a smuggling offence would normally lead to a prosecution in a criminal Court, though if the authority so chooses, such proceedings can be initiated; but even that can only be by the authority specified in Section 187-A. 11. The main purpose of an exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtent its ambit. It can be taken as settled that the guarantee given by Article 20(3) (and we agree with respect with Balakrishna Ayyar, J., on that point) can only be in relation to a proceeding in a criminal Court, and obviously to a person accused of an offence; it cannot extend to mere witnesses and to persons from whom information is sought to be obtained. 13. We shall therefore consider (1) whether at the stage at which the Customs authorities exercise their power under Section 171-A, the person to whom summons is issued, (even assuming that he is suspected of or guilty of the offence) can be said to be accused of an offence; (2) whether from the nature of the protection given one can say, it can at all be said to apply to an enquiry under Section 171-A. 14. It must be remembered that the protection against self-incrimination in England and America is much wider than in this country. There, the rule applies to Civil and Revenue proceedings as well, and further is not confined to the accused person but on the other hand extends to witnesses. Rupert Cross in his book on Evidence states at page 227: We have seen that the privilege against self-incrimination in the narr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch testimony but the fact that its assertion is for the purpose of protecting him against being forced to do that against the compulsory doing of which the Constitution protects him. It protects him not merely in criminal proceedings against himself but also when he is a witness in proceedings or investigations of any character whatever ......... The privilege may thus wear a double aspect, depending on the character of the proceeding in which it is invoked. If it is a criminal proceeding against the party invoking it, the privilege is that of not being compelled to take the witness stand or to answer any question at all. If it is a proceeding of a civil nature, an investigation of some character or a criminal proceeding against some one other than himself, he may be required to testily but has the privilege of refusing to answer any question the answer to which might incriminate him. It will be seen that the immunity of an accused to answer an incriminating question is different in its underlying principle from the case of a privilege of a witness. In our country while the immunity of the accused against self-incrimination is guaranteed, there is no such protection given to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue and to reimburse the Government for the heavy expense of investigation and the loss resulting from the tax-payers' fraud ......... The sanction of fine and imprisonment for wilful attempts in any manner to evade or defeat any Income Tax introduced into the Act under the heading penalties is obviously a criminal one. The sanction of fifty per centum addition if any part of any deficiency is due to fraud with intent to evade tax , introduced into the Act under the heading Additions to the tax was clearly intended as a civil one. The distinction between a civil and criminal sanction imposed by the same enactment has been recognised by the Supreme Court of India in two cases. Maqbool Hussain v. State of Bombay, 1983ECR1598D(SC) and Thomas Dana v. State of Punjab, 1959CriLJ392 . In the former case it was observed: We are of opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a Court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy. It therefore follows that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f information. The nature of the protection given under Article 20(3) itself will show that it cannot apply to an enquiry in pursuance of the summons under Section 171-A of the Sea Customs Act for as we stated earlier, the protection against self-incrimination is only to an accused person. That protection as available in this country is more or less the same as under the English law. In Blunt v. Park Lane Hotel, Ltd., 1942 2 KB 253 Goddard, L. J., stated the rule in England as The rule is that no one is bound to answer any question if the answer thereto would 'in the opinion of the Judge' have a tendency to expose the deponent to any criminal charge, penalty or forfeiture 'which the Judge regards' as reasonably likely to be preferred or sued for. (Italics ( here in ) is ours). 20. Whether an answer to a particular question will incriminate the person deposing cannot therefore, be decided by the witness; it should be so in the opinion of the Judge. That rule cannot therefore apply where there is no judicial proceeding. That the American law is the same can be seen from Rottschaefer's American Constitutional Law where the learned author referring to Mason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely a rule of convenience which established a practice of not pressing questions relating to offences but that did not prohibit the Official Receiver from putting the questions. This view was accepted in Re, Paget; Ex parte, Official Receiver, 1927 2 Ch 85 where Lord Hansworth, M. R., emphasised the nature of the jurisdiction regarding enquiries as one for the protection of the public which compelled a full and searching examination and that the mere fact that the answers might cause the bankrupt personal inconvenience or possibly incriminate him must not stand in the way of such a full examination. 22. But there is no constitutional guarantee in England as in this country, and legislation there is not subject to any fundamental rights. But, as we have shown before the fundamental right guaranteed under Article 20(3) can have not relation to proceedings under Section 171-A of the Sea Customs Act. 23. For the reasons stated by us in the foregoing paragraphs we are unable with respect to share the view taken, in AIR1958Cal682 . On the other hand we agree with Balakrishna' Iyer, J.'s view in AIR1960Mad225 that Section 171-A is not violative of Article 20(3). At the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational distinction between the two classes of offences as there can be more heinous offences under the Penal Code than smuggling a single article like a watch, etc. Then again there can be no difference between a judicial and a quasi-judicial enquiry (it is assumed that proceedings under Section 171-A is a quasi-judicial one) as the mischief of procuring compelled testimony is common to both. 26. In this connection learned counsel referred, to the protection afforded under the Code of Criminal Procedure to an accused under Sections 342 and 342-A (whereunder the accused does not render himself to any punishment by refusal to answer questions) and to a witness during police investigation under Section 162 of the Criminal Procedure Code and during trial by Section 132 of the Indian Evidence Act. Such protection, he said is inherent in any civilised system of jurisprudence and is but a kind of liberty which every man should have. There being no such privilege or protection under Section 171-A it should be regarded as discriminatory. Further the witness has no choice; a refusal or failure to speak the truth will entail a punishment (Sections 174 arid 179 I. P. C.). Speaking the trut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject-matter of the legislation then position is substantially the same. This brings in the question of classification. As there is no infringement of the equal protection rule if the law deals alike with all persons of a certain class the Legislature has no doubt right to classify the persons and placing those whose conditions are Substantially similar under the same rule of law, while applying different rules to persons differently situated. It is said that the entire problem under the equal protection clause is one of classification or of drawing lines. In making the classification, the Legislature cannot certainly be expected to provide ''abstract symmetry . It can make and set apart classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degrees of evil but the classification should never be arbitrary, ox evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made and classification made without any reasonable basis should be regarded as invalid. 31. In Budhan Choudhry v. State of Bihar, 1955CriLJ37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore be held that there is a discrimination. Equal application of laws, it is said requires that a person to be accused for a smuggling offence should be entitled to the same protection or privileges as would be accorded to an offender under the ordinary law. 34. We would however, like to point out that there is an underlying misconception in the argument. The smuggler if he is tried before the criminal Court will undoubtedly be entitled to the same privileges as any other criminal. 'The question is whether he should have the same privilege in a quasi judicial enquiry or investigation. Great reliance is placed in support of the argument on the decision of the Supreme Court in 1952CriLJ510 where a West Bengal enactment with a view to provide for a speedier trial of certain offences laid down a special procedure for trial before special Courts, the prescribed procedure being disadvantageous from the point of view of the accused. The Act did neither classify nor provide for the classification of the cases to be tried by the special Courts but left it to the arbitrary discretion of the executive to pick and choose cases and place them before such Courts. It was held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , where the Master of the Rolls (in the latter case) pointed out that the rule against self-incrimination was a rule of convenience which must give way where public interests are concerned. That would mean that a statute can validly abridge the privilege given to the witness subject, of course, to the constitutional safeguards. Analysing the principles laid down in the decisions of the Supreme Court relative to the matter now set down for consideration, we have to consider: 1. Is there a discrimination under Section 171-A of the Sea Customs Act; 2. If there is one, is it referable to a classification and whether such classification is made by the Legislature; 3. Even so, is such classification reasonable and bears a just relation to the object of the statutory provision. 36. Learned counsel for the appellant has contended that there is a differentiation in between an offender under the ordinary law and one under the Sea Customs Act and that such a differentiation is without justification. It is argued that the availability of protection under Section 132 of the Evidence Act and the non-availability of the same under Section 171-A of the Sea Customs Act would be enough t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation Commission) Act came up for consideration. By that provision such of those evaders of Income Tax who in the opinion of the Government evaded to a substantial extent, were put up before the Commission for which a more stringent procedure was prescribed, while the other tax evaders similarly situate would be liable to be proceeded against under Section 34 of the Indian Income Tax Act. The section was struck down as discriminatory. Mahajan, C. J., observed: It is well settled that in its application to legal proceedings Article 14 secures to everyone the same rules of evidence and modes of procedure; in other words the same rule must exist for all in similar circumstances. It is also well settled that this principle does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position.'' These observations can in our opinion have no application to a case where there is no legal proceeding. Further the purpose of Section 171-A is different from a prosecution. As we said earlier, at the stage at which Section 191-A is invoked, there are no proceedings directed against any person; a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the Legislature is to be presumed, yet to carry that presumption to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminating legislation is to make the protecting clauses of the 14th Amendment a mere rope of sand in no manner restraining the state action. Again in Hartford Steam Boiler Inspection and Insurance Co. v. W.B. Harrison, (1936) 81 Law Ed 1223 it has been laid down that discriminations are not to be supported by mere fanciful conjecture and cannot stand as reasonable if they offend the plain standards of common sense. In the judgment in 1952CriLJ510 Chandrasekhara Aiyar, J., stated that the policy or idea behind the classification should at least be adumbrated it not stated, so that the Court which has to decide on the constitutionality might be seized of something on which it could base its view about the propriety of the enactment from the standpoint of discrimination or equal protection. 42. But we have already pointed out that Section 171-A on its terms does not discriminate; the persons dealt with by it are those in possession of informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication for police power; It is a matter for judicial determination but in determining the question of reasonableness the Courts must find some economic, political or other social interest to be secured and some relation to the classification to the objects sought to be accomplished. In doing this, the Court may consider matters of common knowledge, matters' of common report, history of the times and to sustain it they will assume every state of facts which can be conceived of as existing at the time of the legislation. The fact that only one person or one object or one business or one locality is affected is not proof of denial of the equal protection of laws. 47. There can be little doubt that having regard to the difficulties attendant on tracing a smuggler, the power to obtain compelled testimony from anyone who is in possession of the relevant information has a just relation to the object of the enactment namely to prevent and check evasion of customs laws. 48. In C.I. Emden v. State of U. P., [1960]2SCR592 a case of discrimination with respect to a presumption under the law arose. Under Section 4 of the Prevention of Corruption Act, the statute raises a presum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd pressed before us. It might appear superfluous that I should separately record the grounds of my concurrence. But I have been impelled to do so, both on account of the constitutional importance of the issues involved, and from regard for the subtle and complex arguments elaborated before us by the learned counsel for the appellant (Sri Venkatasubramanya Ayyar) and the learned Advocate-General for the State, 52. The facts have been set forth in the judgment of My Lord, The Chief Justice, in every relevant particular; that enables me to pursue the reasoning, in the light of the facts of the instant case, without recapitulation. Further, I propose largely to confine myself, in this judgment, to the ground that Section 171-A of the Sea Customs Act is violative of Article 14 of the Constitution. It appears to me that the argument, as based upon Article 20(3), is within a relatively brief compass, and admits of a relatively simple answer. Even with regard to the history of the doctrine of protection from the compulsion to answer incriminating questions, particularly in the United Kingdom, it appears to me that that history has a deeper and more profound relevance to the argument as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same calling and condition; and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offences. The judgment of Justice Matthews in (1885) 30 Law Ed 220 is notable for the dictum that equal protection of the laws is a pledge of the protection of equal laws . The adjective 'equal' thus suffered a transposition from 'protection' which it originally governed to laws , and it was recognised that the doctrine restrains legislative action as much as executive power. The argument is that this inequality might be manifest from the enactment itself, or might be evident only from a comparison of the enactment with the rest of the corpus of law applicable to those similarly situated. In (1897) 41 Law Ed 666 we find the emergence of the doctrine that classification is permissible to relieve a law from the charge of denial of equal protection, but this must not be arbitrary but has to be based upon a difference which has a just and proper relation to the attempted classification. In this regard, while good faith and the knowledge of existing conditions on the part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the classification, and the object of the enactment. I might add that, as pointed out in [1959]1SCR279 , legislative technique does not invariably or necessarily require that the statute should formulate the classification, or basis of differentiation, in relation to its object. This may well be gathered from the entire surrounding circumstances, and the intendment of the statute itself. 56. Against this background of principles, Sri Venkatasubramania Ayyar forcefully argued that (1) the failure of the Legislature to write into Section 171-A of the Sea Customs Act, the protection afforded to witnesses by Section 130 of the Indian Evidence Act, and more significantly, by the proviso to Section 132 of the Indian Evidence Act, perpetrated, by necessary implication, a discrimination that is hostile and unjustified. It was of no consequence whether the Legislature was conscious of the discrimination arising from the lacuna in respect of protection, and still enacted Section 171-A of the Sea Customs Act as it stands, or was not even conscious of the discrimination, and it has resulted from inadvertence. So long as it exists, and so long as no reasonable classification can be spelt ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lopment, the first being the history of the opposition to the ex officio oath of the Ecclesiastical Courts; the second, of the opposition to the criminating question in the Common Law Courts. As stressed by My Lord the Chief Justice, in one relevant passage, as far as civil matters are concerned, the rule partly originated in the equity doctrine that a common informer will not be assisted by an order for discovery in his favour. The unpopularity of the 'Star-Chambar' jurisdiction and methods of interrogation, had also a great deal to do with the growth of the theory. But what is very significant and interesting is that, from very early stages, there were also voices raised in protest against any absolute formulation of the doctrine, as that would deny and frustrate the ends of justice in the detection and punishment of offences, or of anti-social conduct. It is strictly pertinent to cite here a reference from the great levels of English literature. In the 1603 edition of Hamlet, the King addresses the following speech in Act III, Scene 3: ......But 'tis not so above; There is no shuffling; there the action lies In his true nature, and we ourselves compelled Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elling the witness to answer questions tending to show that he had committed other offences. Next, under the Bankruptcy Act, 1914, Sections 15(1) and (8), a debtor may not merely be compelled to produce books of account and documents, but he cannot refuse to answer questions touching his conduct, dealings, or property on the ground of self-crimination. The relevant authorities are 1912 2 KB 251 ; (1927) 2 Ch 85; Re, Jawett, (1929) 1 Ch 108. The answer may even be used as evidence in subsequent criminal proceedings: Re A Solicitor (1890) 25 QBD 17. Again, the Bankruptcy Act, 1890, repealed so much of Section 85 of the Larceny Act, 1861, as relieved a witness, compulsorily examined in bankruptcy, from liability to conviction for certain misdemeanours; and substituted a narrower protection. Under the Gaming Houses Acts, 1845 and 1854, the Land Registration Act, 1925, the Representation of the People Act, 1949, the Election Commissioners Act, 1949, the Explosive Substances Act, 1883, the Merchandise Marks Act, 1887, under relevant sections which need not be particularised here, witnesses may also be compelled to answer criminating questions, subject, to varying degrees of statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section, what is primarily provided for is a procedure to summon persons likely to possess relevant information which will aid the officer in the prevention of smuggling, or to summon persons to produce relevant documents. There is no necessary or logical inference that all such persons, who really form a class of persons possessing such documents or such information as may throw light upon suspected criminal offences, are persons with a guilty conscience, or are persons concerned in the offences themselves. Conceivably, many may be innocent, and to them the obligation may involve no disability whatever, precisely as, conceivably, some of such persons might be suspects with good cause. But I am unable to see bow the section itself can be tested against one kind of hypothetical instance, rather than another. In brief, therefore, upon this aspect of the matter, it appears to be at least very doubtful to me, if we have here a true case of hostile discrimination perpetrated by the Legislature, whether with intention or through inadvertence. 61. These considerations are strengthened by the history of the proviso to Section 132 of the Indian Evidence Act, through the enactment of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely prevent or deal with smuggling, which is anti-social and which injures the national interest, they should be properly clothed with powers of enquiry and detection. For such a purpose, it is just to make a classification of those who might have the requisite knowledge or information, or documents which might lead to the detection of such crimes, and to tender them compellable in respect of answers, or the production of such documents. It cannot be a valid objection to such an argument that this class of persons might include those justifiably suspected of participation in smuggling, and that such persons might run the risk of being ultimately involved in a criminal prosecution, by not being afforded the protection of the proviso to Section 132 of the Indian Evidence Act. 63. There are two definite answers to this argument. Firstly, the proceedings under Section 171-A of the Sea Customs Act are not comparable to judicial proceedings, and do not resemble judicial proceedings at all; they are broad enquiries for the prevention or detection Of offences, and no more. Secondly, as stressed by their Lordships of the Supreme Court in 1983ECR1598D(SC) and 1959CriLJ392 , and on the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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