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TMI Blog1976 (3) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on the charge under Section 135(a) of that Act reducing the sentence to one year's rigorous imprisonment. The High Court, however, granted a certificate under Article 134(1)(c) of the Constitution, on the basis of which, this appeal has been filed. 2. The main question with reference to which the certificate was granted by the High Court, was whether Section 108 of the Customs Act, 1962 is ultra vires the provisions of Clause (3) of Article 20 of the Constitution? But Mr. Chaudhury, appearing for the appellant, does not press this question now before us. 3. The first contention canvassed by the Counsel is that on the facts and circumstances of the case, the appellant's statement recorded under Section 108 of the Customs Act, 1962, on the foot of which the appellant has been convicted, was hit by Clause (3) of Article 20 because at the time of making that statement, the appellant was "accused of an offence" under Section 124 of the Bombay Police Act, and the statement was obtained under compulsion of law. Stress has been placed on the fact that the appellant was, in fact, arrested by the police on a charge under Section 124 of the Bombay Police Act and the goods were seized un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bound to state the truth upon any subject respecting which he is examined or makes statements and to produce such documents and other things as may be required. The expression "any person" includes a person who is suspected or believed to be concerned in the smuggling of goods. But a person arrested by a Customs Officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The steps taken by the Customs Officer are for the purpose of holding an enquiry under the Sea Customs Act and for adjudging confiscation of goods dutiable or prohibited and imposing penalties. The Customs Officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act with the commission of any offence. His primary duty is to prevent smuggling and to recover duties of customs : when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea Customs Act he is not accusing the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , shall, if he fails to account for such possession or to act to the satisfaction of the Magistrate, on conviction, be punished with imprisonment for a term which may extend to one year but shall not, except for reasons to be recorded in writing, be less than one month and shall also be liable to fine which may extend to five hundred rupees." 11. Even in respect of that offence, the police did not register any case or enter F.I.R. which normally furnishes a foundation for commencing a police investigation. The police did not open the packages or prepare inventories of the goods packed therein. Indeed, the police appear to have dropped further proceedings. They did not take any steps for prosecuting the appellant even for an offence under the Bombay Police Act, 1951. They informed the Customs authorities who opened the packages, inspected the goods and on finding them contraband goods, seized them under a Panchnama. The Customs authorities called the appellant and his companion to the Customs House, took them into custody, and after due compliance with the requirements of law, the Inspector of Customs questioned the appellant and recorded his statement under Section 108 of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nent claimed that he was not aware that the packages which were loaded in the truck were contraband goods, and alleged that the goods were not loaded under his instructions. The deponent claimed to be an innocent traveller in the truck when he said : "I did not ask Mullaji (driver) what goods were being loaded in his lorry...............Mullaji was only my friend and I was not aware of any of his mala fide activities". 17. Moreover, the incriminating facts admitted in this statement, do not, even if taken cumulatively amount to admission of all the facts which constitute any offence. To bring home an offence under Section 135 of the Customs Act, in addition to the facts admitted in Ex. 1, it had to be established further that these goods were dutiable or contraband goods. 18. For these reasons, it could be said beyond doubt, that the statement Ex. 1 was not a "confession" within the meaning of Section 24, Evidence Act. 19. Secondly, it has not been shown that the Customs Officer—though a person in authority—had offered any inducement or held out any threat or promise to the appellant. 20. Christophen Soares, the Inspector of Customs (P.W. 4) testified that no threats, coercion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presence of the appellant, and thereafter the first accused took the wheel, while the appellant sat by his side in the truck, and drove towards Sandhurst Railway Station. It is further admitted that some Bania paid Rs. 2,000/- to the appellant which was meant to be given to the driver of the truck. Unfortunately, the truck skidded near the Bangri Police Station and came to a stop. On hearing the impact of the accident, the police came out, took both the accused into the Police Station and seized the truck and the goods. In short, the appellant had clearly admitted that these packages containing the contraband goods were imported surreptitiously from Roti Bunder under cover of darkness. It was further established de hors the statement of the appellant, that these packages, on opening by the Customs Officer, were found to contain contraband goods of foreign make. They were brand-new articles packed in bulk. The circumstances of the arrest of the appellant while escaping from the truck, the seizure of the truck and the goods, the contraband nature of the goods, the fact that at the time of the seizure the goods were in the charge of the appellant, the fact that no duty on these goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
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