TMI Blog2000 (4) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... n Criminal Revision Applications No. 5 and 6/2000, were accused Nos. 3 and 1 respectively, on the said trawler, which was to transport the said ingots clandestinely brought into Goa, India. The learned chief Judicial Magistrate held all the applicants guilty of the charge. Accused No. 2 who was tried alongwith the other accused was acquitted and the other accused No. 5, 7, 9 and 10 had pleaded guilty and they were convicted. 4. The applicants had challenged their convictions and sentences before the learned Sessions Judge, Panaji, and the learned Additional Sessions Judge, Mapusa, has dismissed the appeal of all the applicants. This is how the applicants are before this Court in revision against concurrent findings of two courts below. Before proceeding ahead, it is necessary to bear in mind that the scope of revision is limited and the revisional Court does not interfere unless it can be established that the findings of the courts below are perverse. The Apex Court in (State Of Kerala v. Puttumana Illath Jathavedan Namboodiri)1, (1999) 2 SCC 452, upon which reliance was placed by learned advocate for the respondents, has laid down that the jurisdiction under section 401 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing was given to her that the statement in question shall be used against her. In support of this submission, learned advocate for the petitioner has relied upon (N.S.R Krishna Prasad v. Directorate of Enforcement Loknayak Bhawan Khan Market, New Delhi)3, 1992 Cri. L.J 188 and (State Of Maharashtra v. Hasmukh Hargovind Shah .)4, 1993 Cri. L.J 1953. A Division Bench of the Andhra Pradesh High Court in N.S.R Krishna Prasad v. Director of Enforcement (supra) has laid down that the empowered authority seeking to record confession must administer warning or caution as contemplated under section 164(2) Cr. P.C to the concerned person that it would be used against him. It was pointed out therein that it is basic and fundamental principle of criminal jurisprudence that caution must be administered to a person from whom confessional statement is recorded that he should be informed that the same would be used against him injudicial proceedings. It was further pointed that the legislature had advisedly used the expression statement while enacting section 108 of the Customs Act authorising the empowered authority to record what the person summoned states and a plain reading of section 108 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held that there is requirement of law that when statements are recorded under section 108 of the Customs Act that the accused should be warned that the statement in question is liable to be used against him and that he should be put on notice. It was pointed out by the learned Single Judge that this aspect of the matter is one of great significance because even if statements are admissible the Court must take cognizance of the fact that the accused person, even if he had at that point of time not been placed under arrest was confined by the Department's Officers that his liberty was curtailed and that, therefore, the all important question is as to whether or not in the circumstances so placed the accused would voluntarily make a statement requires careful scrutiny. Reading paragraph of the said judgment of the learned Single Judge, wherein there is a reference to the observations of the Apex Court that statement under section 108 of Customs Act are distinguishable from confessions recorded by Magistrates under section 164 Cr. P.C, it gives me an impression that the learned Single Judge has not approved the observations of the Division Bench of the Andhra Pradesh High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Officer by inducement, threat or promise, then certainly the same shall be inadmissible in evidence. Section 25 of the Indian Evidence Act provides that no confession made to a police officer shall be proved against a person accused of any offence. It is now well settled that the duties of Customs Officer are very much different from those of police officers for detecting and smuggling goods would not make them police officers, within the meaning of Section 25 of the Indian Evidence Act and the Customs Officer making enquiry under section 107 or section 108 of the Customs Act is not a police officer and person against whom enquiry is made is not an accused person. It is not necessary to quote any authority on this well settled position of law as there are umpteen number of authorities on this issue. Suffice to quote the Apex Court ruling in (Armies Chandra Mehta v. The State of West Bengal)6, A.I.R 1970 S.C 940 wherein it has been held that Customs Officer acting under Customs Act of 1962 is not a police officer and a person against whom an enquiry is held under section 171-A of the Sea Customs Act, 1878 is not a person accused of any offence. It is also settled position of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under which confessions are recorded by Magistrates, they must be specially scrutinised to find out if they were made under threat or promise from someone in authority and are voluntary. Thus, a statement recorded by a Customs Officer under section 108 which may also include confession cannot be strictly speaking equated to confession under section 164 Cr. P.C and, as such, the question of importing safeguards contained in section 164(2) Cr. P.C into section 108 of the Customs Act would not, in my opinion, arise. However, it goes without saying that statements recorded under section 108 Customs Act which are in the nature of confessions do require careful scrutiny before the same can be accepted. In (K.T.M.S Mohd. v. Union of India)9, (1992) 3 SCC 178 : 1992 Cr. L.J, 2781 the Apex Court in relation to section 40 of the Foreign Exchange Regulation Act which is para materia with section 108 of the Customs Act, has observed that there are no safeguards in the matter of recording statements under section 40 of the said regulation as the case of recording a statement of an accused under section 164 Cr. P.C by a Magistrate. However, the statements obtained from persons under the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, in Smt. Usha Rani v. Government of Andhra Pradesh (supra), it has been held that the statement recorded under section 108 of the Customs Act, 1962, is not a confession within the meaning of section 24 of the Indian Evidence Act, yet in view of the decision of the Apex Court in Haroon Haji Abdulla v. State Of Maharashtra, A.I.R 1968 S.C 832, such statements which are not made subject to safeguards under which confessions are recorded by a Magistrate, are required to be specially scrutinized to find out whether the same are voluntary or not. 8. In view of the above discussion, there is no merit in the first submission of the learned advocates for the applicants. 9. The second submission relates to alleged detention of the applicants in Criminal Revision Application No. 4, 5 and 6/2000 from 4th October to 7th October, 1988. The case of the applicants is that during this period they were detained, assaulted and the statements under section 108 of the Customs Act were recorded after duress and threat as a result of which these statements are not voluntary. The medical record of these applicants was not proved by the applicants. Besides this, it appears that the med ..... X X X X Extracts X X X X X X X X Extracts X X X X
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