TMI Blog1958 (9) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... er has been challenged by the members of the firm in a cross-objection. 2. The facts are simple and may be shortly stated. According to the Customs authorities, they received information that the Respondent firm, in collusion with various other firms, had been importing goods without valid licences, were not declaring the correct value or the correct description of the goods at the time of their importation and were bringing into existence various documents for the purpose of creating evidence in their favour. On receipt of such information, they made some enquiries and came into possession of certain facts and eventually on the 16th May, 1955, the Assistant Collector of Customs and Superintendent of Preventive Service made an application to the Chief Presidency Magistrate of Calcutta under section 172 of the Sea Customs Act for the issue of four warrants for the search of the four premises, including the firm's shop, its godown and the residence of one of its partners. The Magistrate issued the warrants applied for. On the strength of one of those warrants relating to the firm's shop at 5, Bentinck Street, Calcutta, the Customs authorities held a search of the shop room ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lcutta, was made to the Chief Presidency Magistrate by the same Assistant Collector of Customs and Superintendent, Preventive Service and a warrant was issued forthwith. Armed with that warrant, the Customs officials went to 16 Mangoe Lane and caused the godown to be opened for holding a search, but according to them, the members of the firm asked for a day's time to produce the documents relating to the importation of the goods stored in the godown and then asked for further time till the 23rd May, 1955, which was granted. According to the Respondents, the Customs officials first went to the godown at 16 Mangoe Lane on the 18th May, before they had obtained a search warrant, but this the Customs officials denied, On the 23rd May, 1955, a fourth notice was issued by Shri D. G. Banerji, Rummaging Inspector (Intelligence) to the firm under Section 171-A of the Sea Customs Act and by it the firm and each and all of its partners individually were asked to produce forthwith all the documents relative to the importation, purchase or sale of the goods lying in the godown at 16 Mangoe Lane. 4. On the 21st May, 1955, Messrs. N. C. Bural and Pyne, Solicitors, acting for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e firm preferred a cross-objection. 5. To take the appeal first, the case of the Respondents with respect to the notices, which the learned Judge has accepted, is based on Article 20(3) of the Constitution of India. They contend that the Appellants accused them of various offences and were then seeking to compel them by the notices to be witnesses against themselves. According to them and the learned Judge, Section 171-A of the Sea Customs Act, in so far as it enables the Customs authorities as they think, to compel a person accused of any offence to give evidence against himself or to produce documents for that purpose, is inconsistent with Article 20(3) and consequently void, and further, the notices issued under the purported authority of Section 171-A were of no effect. The only question in the appeal is whether this view of Section 171-A of the Sea Customs Act is correct or even if it be correct, whether the impugned notices amounted to an exercise of testimonial compulsion on persons accused of offences. 6. In aid of their contention, the Respondents rely on the terms of the search warrants and those of the notices issued to them. It appears that in, his application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the goods stored in the godown at 16, Mangoe Lane. All these notices were issued under Section 171-A of the Sea Customs Act which requires any person, summoned by a Customs Officer to produce documents to produce them or cause them to be produced, as may be directed, and any person summoned to give evidence, to state the truth on pain of the penalties prescribed by Section 193 and 228 of the Indian Penal Code. The Respondents contend, and the learned Judge has found, that the statements contained in the search warrants and two of the notices charge them with acts and omissions which amount to offences and therefore they cannot be validly compelled, either under Section 171-A of the Sea Customs Act or otherwise, to be witnesses against themselves by giving evidence before the Customs authorities, in the course of which they will be bound to tell the whole truth, or by producing all the documents before them, which may include incriminating documents. 7. The first question is whether the Respondents were accused of an 'offence' or 'offences' within the meaning of Article 20(3). The learned Judge has pointed out that the term 'offence' has not been def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 19 of the Sea Customs Act and since it is also provided that all the provisions of the latter Act shall have effect accordingly, violations of the former Act would be, it seems, punishable under Section 167(81) of the latter Act. Contraventions of the Foreign Exchange Regulation Act are also punishable under Section 23 (1) thereof with imprisonment or fine or both and like restrictions under the Imports and Exports (Control), Act, those imposed by Sections 8(1), 8(2), 12(1) (a) and 13(1) of this Act as well are to be deemed to be restrictions imposed by Section 19 of the Sea Customs Act, with the result that all provisions of that Act shall have effect accordingly. The Appellants contended that in holding the searches and issuing the notices, the Customs authorities had acted only as Administrative officers, which in fact they were, and the offences with which they had concerned themselves were only offences in the revenue sense, their sole object being collection of duty and forfeiture of goods, illegally imported. This contention does not appear to me to be tenable. It is true that the second notice of the 19th May, referred only to certain provisions of the Sea Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reserve Bank, but it is Collectors, Deputy Collectors and Assistant Collectors of Customs who have been authorised for the purpose by the Central Government by a notification, dated 12-1-1952. It is thus the higher officers of the Customs Department and none others who can initiate a prosecution for violations of either the Sea Customs Act or the Imports and Exports (Control) Act, or the Foreign Exchange Regulation Act. In view of, these circumstances, it appears to me that from the accusations made in the search warrants at the instance of the Customs authorities and those made in one of the notices by the Customs authorities themselves, accusations of criminal offences cannot be excluded; and if accusations at a pre-trial stage, such as may in the normal course result in prosecution, attract the protection of Article 20(3), as the Supreme Court has held, I am of opinion that the requirements of the Article in this regard were satisfied in the present case. 8. In the above view, it is not necessary to consider the Appellants' contention that penalty is not the same thing as fine and that the acts or omissions charged against the Respondents which the Sea Customs Act visits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 167 and some of them are also criminal offences under the Imports and Exports (Control) Act and the Foreign Exchange Regulation Act. It follows that even assuming that only criminal offences are contemplated by Article 20(3) of the Constitution, the Respondents were accused of offences within the meaning of the Article. 9. The decision of the Supreme Court in Sharma's case (B) makes it clear that the accusation need not be accusation in a Court of law, but it may be accusation at a stage before the matter has reached the Court. This settles the question of the time of the accusation as contemplated by Article 20(3), but it has still to be considered what the nature of the accusation need be. In Sharma's case (B), there was a first information report which was regarded as a formal accusation relating to the commission of an offence which might in the normal course result in prosecution and it was held that a person, so accused, was entitled to the protection of Article 20(3). According to the Appellants, it was decided in Sharma's case (B), that the protection of Article 20(3) could not be invoked unless there was a formal accusation, but this contention is clearl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erials which may themselves be used as evidence, hut also with respect to statements or materials which may give a lead to the investigating authorities in searching out other evidence, or which may provide them, with knowledge of the details of an offence or of, sources of information which may supply other means of conviction (See Counsel man v. Hitchcock (1892) 142 US 547: 35 Law Ed 1110 (D) ). This meaning of the constitutional guarantee against self-incrimination appears to me to be self-evident, because if officers, competent to prosecute a man, can, after telling him that according to their information he has-committed an offence, extort oral or documentary testimony from him which may be used directly or indirectly to bring the charge home to him, the guarantee must be a very hollow guarantee indeed. In my view, both as to the time when and the form in which it was made, there was an accusation against the Respondents within the meaning of Article 20(3) and it was an accusation of several offences which furnished to them the necessary basis for claiming protection against self-incrimination, if, however, any self-incrimination was really going to be enforced. 11. The nex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -5-1955, somewhat peculiar. By that notice, S.M. Jajodia was required to produce 52 files. It is true that before the notice was issued, the Appellants had already accused the Respondents of offences, as would appear from the statements contained in the search warrants and it is also true that according to the affidavit of S.K. Srivastava, the Superintendent, Preventive Service, some of these files contained incriminating documents. But it is alleged by the Appellants that these files bad already been seized by them at the search and locked up in a room and that the notice was issued, because it was found that the files had since been removed. If that allegation be true, I do not think that the protection of Article 20(3) could be claimed with respect to this notice, because by it Jajodia was not being asked to produce the files in the first instance, but was merely being asked to restore the files or which the Appellants had already come into possession by other means and which had since been removed. The Respondents deny the allegation, but since their case that they were being compelled to be witnesses against themselves by being required to produce these files depends upon a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with the notices with respect to such of the questions as they may think they cannot answer or such of the documents as they may think they cannot produce without incriminating themselves. The learned Judge has held that the section authorising the issue of the notices is ultra vires the Constitution and therefore void in so far as it enables the Customs authorities to summon a person accused of an offence either to appear or to produce documents which are likely to incriminate him. With respect, such a division of the section does not seem to be possible, because the section does not make a separate mention of persons accused of offences and, in so far as it comprises such persons within the expression any person , it is not severable. If the section is bad in part, it must be struck down as a whole. In the case of Romesh Thappar v. The Province of Madras, 1950CriLJ1514 , the Supreme Court held that so long as the possibility of a law being applied for purposes not sanctioned by the Constitution could not be ruled out, it must be held to be wholly unconstitutional and void. Indeed, since Section 171A does not mention persons accused of offences specifically, nor says anything ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, it only authorises the Customs officials to summon a person to appear or to summon him to produce documents, but it has not specifically authorised them to compel and answer to incriminating questions or to compel the production of incriminating documents. It is true that the section enjoins the person to tell the truth and the Penal Code makes failure to tell the truth punishable. There appears to be no criminal sanction with respect to non-production of documents except that the documents produced must be genuine. But, in any event, all statutes must yield to the Constitution and therefore it will be correct to hold that Section 171A, as such, is not bad, but the person summoned under its provisions will necessarily be entitled to claim the Constitutional privilege as soon as he is asked to answer a question or produce a document which he cannot answer or produce without incriminating himself, if he has previously been accused of an offence. 16. It is interesting to note in this connection the provision made in American law for compelling incriminating answers or the production of incriminating documents without violating the constitutional guarantee contained in the Fifth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een certainly better if Section 171A of the Sea Customs Act contained an exception of the above character, but since all laws made by the Legislature must be subject to the Constitution, the effect of the section even in the absence of such an exception is, I presume, the same. 17. As far as I have been able to investigate, except the case of Boyd v. United States (1886) 116 US 616: 29 Law Ed 746 (F), no other decision of the Supreme Court of America has struck down a law authorising the examination of all persons or the compulsory production of all documents as invalid. Whenever a person, interrogated by a Grand Jury or a court or an investigating commission or asked by one or other of such authorities to produce documents under, a provision of a statute authorising such interrogation or requisition, has claimed the constitutional privilege, he has been allowed it, if it was found that the answer or the document might really incriminate him, unless there Was an immunity statute of a sufficiently broad compass. But the Court has not held the authorising statute to be bad. It has only held that the statute could not be used in the particular case for the purpose for which it had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in essence criminal and therefore the Fifth Amendment would apply. The decision of the Court was that the notice to produce the invoice, the order by which it was issued and the law which authorised the order were all unconstitutional and void, the law being void as applied to such cases. 18. If the principle of this decision is followed, there can be no doubt that the order of Sinha J., must be upheld in toto. I do not, however, think that it can be applied, because Section 171A of the Sea Customs Act is a very different land of provision and it does not say that the Customs officials will be entitled to ask any question they like or require the production of any document whatsoever and that if the person summoned by them does not answer any question put to Him or produce any document required, to be produced, he will be deemed to fee guilty. In my view, full effect can be given to the constitutional guarantee without holding any part of the section to be void. The protection to which, the Respondents are entitled under Article 20(3) is a protection against self-incrimination and not protection against anything else. So long as they are not compelled to answer a question by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion they can claim on an application under Article 226 of the Constitution is protection against self-incrimination and such protection can be ensured to them if it is held that while they will be bound to comply with the notices, they will be entitled to claim the right of refusing to answer questions, by answering which, they may think they will incriminate themselves or of refusing to produce incriminating documents. More they, in my view, cannot claim. I would therefore uphold the notices, subject to the reservation as regards compliance with them which I have indicated. 19. If a person accused of an offence refuses to answer a question on the ground that by answering it he will incriminate himself or to produce a document on the ground that it will incriminate Mm, he will in a way be admitting his guilt and vet if effect is to be given to Article 20(3) of the Constitution, he will, in effect be protected from being compelled to furnish evidence of his admitted guilt and protected even by the issue of, if necessary, a writ. This may seem odd, but in balancing the advantages of an effective detection of crime, with information collected from all sources, against the observanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the warrant for a general search, as was issued in this case, was bad and that the seizure of the goods at the search was unauthorised. There is no constitutional guarantee in India against illegal search and seizure as that embodied in the Fourth Amendment of the American Constitution, but there are sufficient safeguards in Acts of the Legislature. I find no reason in the facts of this case to hold that any of those safeguards was disregarded or that the warrants issued were bad, either in form or in substance. It was said that the warrants authorised the Rummaging Inspector to search for the goods suspected to have been illegally imported and also the relevant documents. It is contended that a warrant expressed in such general terms is not authorised by law and, therefore, the search held on the authority of the warrants issued in the present case was illegal. The whole basis of that argument is Form No. VIII in Schedule 5 to the Code of Criminal Procedure, framed by reference to Section 96, where there is a reference to specified articles. This form is relied on, because it is provided in Section 172 of the Sea Customs Act that search warrants issued under the section shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
