TMI Blog1968 (10) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... e new Act also the position remains the same. This appeal fails and it is dismissed. - 45 of 1967 - - - Dated:- 31-10-1968 - Mr. Justice J.C. Shah, Mr. Justice V. Ramaswami, Mr. Justice G.K. Mitter, Mr. Justice K.S. Hegde and Mr. Justice A.N. Grover [Judgment per : Grover, J.]. - The main point in this appeal, by special leave, is whether statements of the appellant and other accused persons recorded by the Customs Authorities under the provisions of the Customs Act, 1962 (Act 52 of 1962), hereinafter called the new Act, were admissible in evidence at their trial for the alleged offences under Section 120B of the Indian Penal Code read with Section 135 of the New Act and Sections 23(1A) and 23B of the Foreign Exchange Regulation Act, 1947 and under Rule 131B of the Defence of India Rules. 2. The facts need not be stated in great detail. A complaint was laid by the Collector of Customs, Madras, against 10 persons for having committed the above offences. The complaint related to an occurrence which involved transport of 750 bars of gold each weighing 10 tolas valued at more than 7 lacs from Bombay to Madras. The statements of the accused persons were recorded by the Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the appellant has not pressed the second point. As regards the third point, it was conceded before the Full Bench of the High Court that when the statements were recorded the investigation had not reached the stage when the particular persons had been accused of an offence within the meaning of Article 20(3) of the Constitution. In view of this concession learned counsel for the appellant has submitted that the matter be left undecided so that it may be open to the appellant to make whatever submissions he wishes to make before the Trial Court when any such statement is formally tendered for admission into evidence. 5. Adverting to the first point the main endeavour of the counsel for the appellant has been to demonstrate by reference to various provisions of the new Act that statements recorded by the Customs Authorities of a confessional nature would be hit by the provisions of Section 25 of the Evidence Act. In State of Punjab v. Barkat Ram, (1962) 3 SCR 338, it was held by the majority that Customs Officers were not police officers for the purpose of Section 25 of the Evidence Act and the statements to Customs Officers were admissible in evidence at the trial of persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 169, such person could require that officer to take him, previous to search, before the nearest Magistrate or Customs Collector. Section 172 conferred power on a Magistrate to issue search warrants on an application by the Customs-Collector. In the new Act Section 100 confers the power to search suspected persons entering or leaving India. Section 102 contains provision analogous to Section 170 of the old Act with some minor differences. Under the old Act every person arrested on the ground that he had been guilty of an offence under that Act had to be forthwith taken to the nearest Magistrate or Customs-Collector, (Section 174). Under the new Act Section 104(2) provides that every person arrested shall, without unnecessary delay, be taken to a Magistrate. Lastly Section 171A of the old Act conferred power on Customs Officer to summon persons to give evidence and produce documents. Under the new Act Section 107 gives the power to Customs Officers empowered by general or special order of Collector of Customs to examine persons acquainted with the facts and circumstances of the case or to require any person to produce or deliver any document. Section 108 confers power on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any person whose attendance he considered necessary either to tender evidence or to produce a document in any enquiry which such officer was making in connection with smuggling of goods. Any person so summoned was found to attend either in person or by an authorised agent and he was also bound to state the truth upon any subject respecting which he was examined or make a statement and to produce such documents and other things as might be required. Every such enquiry was by a deeming provision to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. Under the new Act the enquiry can be of two kinds. Under Section 107 any Officer of Customs empowered by the Collector of Customs can require any person to produce or deliver any document etc., or he can examine any person acquainted with the facts and circumstances of the case. 13. Section 108 contains the second set of powers which are analogous to Section 171A of the old Act, the two sections being almost similar in language. The contention on behalf of the appellant is that Section 107 of the new Act gives power of investigation to Officers of Customs similar to those exercisable by a poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of crime which can be said to be the main object of having the police. The powers of Customs Officers are really not for such purpose and are meant for checking the smuggling of goods and due realization of customs duties and for determining the action to be taken in the interest of the revenue of the country by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines. (2) The customs staff has merely to make a report in relation to offences which are to be dealt with by a Magistrate. The Customs Officer, therefore, is not primarily concerned with the detection and punishment of crime but he is merely interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties. (3) The powers of search etc., conferred on the Customs Officers are of a limited character and have a limited object of safeguarding the revenues of the State and the statute itself refers to police officers in contradistinction to Customs Officers. (4) If a Customs Officer takes evidence under Section 171A and there is an admission of guilt, it will be too much to say that that statement is a confession to a police officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or a delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys." 18. Emphasis was laid on the police officers having such powers which enable them to exercise a kind of authority over the persons arrested which facilitate the obtaining from them statements which may be of incriminating nature. The case of Raja Ram Jaiswal, (1964) 2 SCR 752 came up for discussion in the third of series of these cases, namely, (1966) 3 SCR 698. The appellant there had been found in possession of contraband gold. He was prosecuted under Section 167(81) of the Sea Customs Act read with Section 9 of the Land Customs Act. 19. A question arose whether the statement made by the appellant to the Deputy Superintendent of Customs and Excise was admissible in evidence. The contention raised was that the Central Excise Officer under the Central Excises and Salt Act (Act 1 of 1944), hereinafter called the "Central Excise Act", was a police officer within the meaning of those words in Section 25 of the Evidence A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that Act shall be deemed to be the officer-in-charge of a police station. The following observations at page 704 (of SCR) are indeed important : "All that Section 21 provides is that for the purpose of his enquiry, a Central Excise Officer shall have the powers of an officer-in-charge of a police station when investigating a cognizable case. But even so it appears that these powers do not include the power to submit a charge-sheet under Section 173 of the Code of Criminal Procedure, for unlike the Bihar and Orissa Excise Act, the Central Excise Officer is not deemed to be an officer-in-charge of a police station." 22. It was reiterated that the appellant could not take advantage of the decision in Raja Ram Jaiswal's case, (1964)2 SCR 752 and that Barkat Ram's case,(1962) 3 SCR 338 was more apposite. The ratio of the decision in Badku Joti Savant's case, (1966) 3 SCR 698 = 1978 E.L.T. (J 323) is that even if an officer under the special Act has been invested with most of the powers which an officer-in-charge of a police station exercises when investigating a cognizable offence he does not thereby become a police officer within the meaning of Section 25 of the Evidence Act un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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