9911796707
TMI Blog1983 (6) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Chief Presidency Magistrate, Calcutta under Section 35 of the Gold (Control) Act, 1968 (hereinafter referred to as the said Act) read with Section 8(1) of the same and under Section 135 of the Customs Act, 1962 (hereinafter referred to as the said 1962 Act). Under Section 35 of the said Act, it has been laid down that nothing contained in Section 34, which deals with sale or delivery of gold by a licensed dealer or certified goldsmith, shall apply to the transfer or delivery, by a licensed dealer, of any primary gold or article to any certified goldsmith or artisan for the purpose of getting any ornaments made, manufactured, prepared, repaired or polished by such certified goldsmith or artisan and Section 8 of the said Act deals with restrictions regarding acquisition, possession and disposal of gold and sub-section (1) thereunder lays down that save as otherwise provided in the said Act, no person shall (i) own or have in his possession, custody or control or (ii) acquire or agree to acquire the ownership, possession, custody or control of, or (iii) buy, accept or otherwise receive or agree to buy, accept or otherwise receive any primary gold. Section 135 of the said 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m for the same act which constitutes the offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence; (iv) the age of the accused. 2. The complaint as mentioned hereinbefore has been disclosed as in Annexure 'A' to the petition and on the basis thereof, the case which was initiated was numbered as No. C. 2097/72 of the 3rd Court of the learned Presidency Magistrate, Calcutta. 3. It was claimed and contended by the petitioner that adjudication proceedings, as mentioned hereinbefore, were allegedly initiated by the purported issuance of the show cause notice dated 20th June, 1972 and thereby he was asked to show cause why the gold as seized should not be confiscated under Section 71(1) and 71(2) of the said Act. Section 71 deals with confiscation of gold and the sub-sections as mentioned hereinbefore are to the following effect :- Section 71(1) - Any gold in respect of which any provision of this Act, or any rule or order made thereunder has been or is being, or is attempted to be contravened together with any package, covering or receptacle in which such g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nalini Seth Road, Calcutta, for melting of gold of foreign origin, the Customs Officers, armed with authorisations issued under the Customs Act, 1962 and Gold (Control) Act, 1968 searched on 30th March, 1972, the said premises under the occupation and control of S/Shri Gopeswar Sil, Nandalal Karmakar and others. In course of search one gold bar in twisted form, along with another lump of gold was recovered, while they were still hot in a big crucible on a furnace. Further search led to the recovery of 2 pcs. of gold bars with inscriptions indicating their foreign origin along with another lump of gold kept concealed in small crucibles underneath the heap of ash besides the furnace. The petitioner was looking after the business at the material time. Besides the petitioner there were 5 other persons including Shri Dhirendra Nath Roy in the room. The gold bars and lumps were seized by the Customs Officers on the reasonable belief that they were smuggled and stored, acquired and dealt with in violation of the provisions of the Customs Act, 1962 and Gold (Control) Act, 1968. The crucibles were also seized as they were used for concealing the gold bars and lumps and used as receptacles i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sil stated inter alia in his statement that Shri Sil brought 4 persons with him in the melting shop and asked Shri Roy to give four much is where upon those four persons took out gold pcs. and bars from their pockets and kept inside 4 muchis. He stated further that according to the instruction of his employer Shri Gopeswar Sil who was present on the spot he placed those 4 muchis on the oven. When the Customs Officers entered into the melting shop S/Shri Nanda Lal Karmakar, Sambhunath Roy, Somenath Sen and Baidyanath Basak were present there along with Shri Gopeswar Sil. He identified them before the Customs Officers. He also states the gold seized from the oven belonged to Shri Nanda Lal Karmakar. One bar each of gold bearing foreign markings belonged to S/Shri Sambhunath Roy and Somenath Sen and the gold lump weighing about 6 tolas belonged to Shri Baidyanath Basak. He removed three muchis and concealed those inside heaps of ashes as his employer and those persons shouted "Customs had arrived. Remove the gold from the oven and conceal.' Having regard to the facts and circumstances of the case I impose the following penalties under Section 74 of the Gold Control Act, 1968. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s received in the Customs House, Calcutta, to the effect that some brokers of Sonapatty would go to the melting shop of Kshetra Mohan Sil at the premises as mentioned hereinbefore, for melting of gold of foreign origin and as such, the Customs Officers duly empowered by the competent authority under the provisions of the said Act and the said 1962 Act, went to the concerned premises, which was under the occupation and control of Gopeswar Sil, Nanda Lal Karmakar and others. It has been stated that the Customs Officers took up their position to ensure that the contraband gold might not be removed from the premises in question and as the door of the premises was bolted from inside, those officers had to break open the door to secure ingress into the room. It was the deponent's case that independent witnesses were requisitioned at the concerned premises and in their presence, search was carried out. He has stated that one Gopeswar Sil, son of Kshetra Mohan Sil, who was looking after the house was present, being one of the six persons noticed in the room at the material point of time and in course of search, one gold bar in twisted form along with another lump of gold was recovered from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1972, when they were enlarged on bail and subsequent to that, the petitioner appeared before the Customs Officers and made further voluntary statements and then the show cause notice was issued on 28th June 1972. The deponent has admitted that the petitioner, in a letter of 6th July 1982, addressed to Respondent 6 as mentioned above, amongst others, contended that the case was subjudice in court, as such, he was not willing to say anything more or appear in person. It was categorically stated and claimed by the deponent that the Customs Officers concerned were discharged by the learned Magistrate from the charges as made against them by Shri Dhirendra Nath Roy in the concerned complaint filed under Sections 48, 426, 330 and 323 of the I.P.C. for non-compliance of the procedure laid down under Section 145(2) of the said 1962 Act and such order was passed on 25th July, 1972 in respect of the complaint which was filed on 4th April, 1972 by the said Shri Roy. It was the deponent's assertion that the petitioner was given appropriate and several opportunities to appear for personal hearing which he did not avail of intentionally, negligently and wilfully. He has stated that in spite of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Collector concerned, to furnish him with copies of several documents and to stay the concerned proceedings pending decision in the criminal cases as initiated against him and others. It should be noted that the copies of documents as asked for, were furnished and supplied and the said Shri Sen was informed that customs adjudication proceedings being distinct and different from criminal proceedings, the departmental proceedings could not be kept pending and he was also intimated that any reply from him would be duly considered. The said Shri Sen of course, by his letter dated 16th December, 1972, filed his explanation to the show cause notice, wherein he also reiterated his stand as mentioned hereinbefore. It was claimed by the petitioner that even though he was asked to appear at the personal hearing, no personal hearing was in fact given and apart from such violation of principles of natural justice, there was violation of such principle also, as the documents asked for were not duly given. It was claimed that a personal hearing, which was asked for, was mandatory in this case, the more so when the adjudication proceeding was a quasi-judicial one. In support of the above subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted an offence under Section 124 and panchnama had been prepared seizing the goods were immaterial when neither the case was registered nor the F.I.R. was recorded by the police. It has also been held in that case that a statement in order to amount to a "confession" must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of an incriminating fact, however grave, is not by itself a confession. A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged cannot amount to a confession and where a person (who was ultimately prosecuted under Section 135(a) of the Customs Act) in his statement under Section 108 of the Act before the Inspector of Customs claiming to be innocent stated 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, these statements even if taken cumulatively did not amount to admission of all facts which constitute offence under Section 135 of the Customs Act and as such it was not a "confession" within Section 24 of the Evidence Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een named as a person who has committed an offence, particularly by officials who are competent to launch a prosecution against him, he has been accused of an offence within the meaning of Article 20(3) and a situation has arisen in which he can claim protection against being compelled by a coercive process to furnish evidence against himself and the language of Article 20(3) is "to be witnesses" and not "to appear as witnesses" and therefore the extortion of any evidentiary material even at the stage of investigation which may aid the building up of a case against them must be within the condemnation of the article. This meaning of the constitutional guarantee against self-incrimination appears 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. As to when protection under Article 20(3) would be available, it has been observed in that case while dealing with Section 171-A of the Sea Customs Act, 1878 that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Legislature must be subject to the Constitution, the effect of the section even in the absence of such an exception is the same. While dealing with the principles underlying and the duty of court under Article 20(3) it has been observed that 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 him, he will in a way be admitting his guilt and yet 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 observance of civilized standards of enquiry and the upholding of the dignity of man, the framers of our Constitution, like those of the Constitution of America, have given preference to the latter. The objection to an intrusion into a man's privacy or his personal degradation in the course of eliciting evidence of a suspected kind is rooted in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncation. Such a narrow meaning may emasculate a necessary protection. There are only two primary queries involved in this clause that seals the lips into permissible silence : (i) Is the person called upon to testify "accused of any offence"? (ii) Is he being compelled to be witness against himself ? A constitutional provision receives its full semantic range and so it follows that a wider connotation must be imparted to the expressions "accused of any offence" and "to be witness against himself". The learned Advocate General influenced by American decisions rightly agreed that in expression Section 161(2) of the Code might cover not merely accusations already registered in police stations but those which are likely to be the basis for exposing a person to a criminal charge. Indeed, this wider construction, if applicable to Article 20(3) approximates the constitutional clause to the explicit statement of the prohibition in Section 161(2). This latter provision meaningfully uses the expression "expose himself to a criminal charge". Obviously, these words mean not only cases where the person is already exposed to a criminal charge but also instances which will imminently expose him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l facts vitiating the requisite satisfaction of the detaining authority thereby rendering the detention order invalid and illegal. 16. On the facts and pleadings and on the basis of the determinations as cited, the point involved for consideration in this case would be when a person is deemed to be an accused and if the criminal proceeding is required to be stayed for avoiding any prejudice to the petitioner for disclosure of his defence in the departmental proceedings and the petitioner, if at all, can claim the right of silence and above all what should be the extent and application of Article 20(3). Admittedly, there are two separate actions and the petitioner has shown cause in the manner as indicated hereinbefore. 17. It was claimed by the petitioner that the disposal of the representation dated 12th February, 1973 as disclosed in Civil Rule No. 507(W) of 1974 by the reply dated 27th February, 1973 as disclosed in that rule was not a proper disposal, as the points as pleaded were not duly considered, and such was also the point involved in the other rules. While on the question of Article 20(3), further reference was made to the case of Ramanlal Bhogilal Shah v. D.K. Guha, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpowered to prosecute for contraventions of the Sea Customs Act the position of Customs Officers will in certain respects be analogous to that of police officers acting on information relating to a cognisable offence. 4 A person who has been examined by the Customs Officer will not be in the position of an accused till it can be fairly and properly said that he is likely to be proceeded against in a criminal court. (5) Though the question when a person becomes an accused person depends on the decision that the departmental officers may take, they cannot, by merely pretending that they have not made up their minds, circumvent the provisions of Article 20(3) of the Constitution. (6) Whether a witness or a suspect has become an accused person in any particular instance is substantially a question of fact. 18. It was then contended that under the said Act, the adjudication was required to come to or arrive at a finding with regard to the character and quality of the gold as seized, viz., whether they were primary gold or not and such decision not having been arrived at, the entire proceeding would be a nullity. Even though this point has not been taken specifically, it can be observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a Magistrate there is an accusation, when a complaint is lodged by an officer competent in that behalf before the Magistrate. Hence a person against whom an enquiry is made by the Customs Officer under the Sea Customs Act is not a person accused of an offence and the evidence, if any, collected by examining him under Section 171-A of the Sea Customs Act is not inadmissible and in that view of the matter Mr. Sanyal categorically claimed that the petitioner cannot claim the protection of Article 20(3). It was further claimed by Mr. Sanyal that the onus to prove innocence under Section 111(d) of the said Act, which lay very heavily on the petitioners, and the same was not at all and duly discharged. 20. On the question of the trials in the instant case and if they can go or be continued together, Mr. Sanyal contended that adjudications being separate and so also the claims, the trials in this case can be continued. In support of such subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (supra), being on different facts and circumstances would have no application in the facts of this case. 22. In reply, Mr. Majumdar, after refuting the submissions as indicated hereinbefore contended that as there was admittedly no determination and findings about primary gold or there was any due finding that they were of foreign origin and mere markings without the due proof, cannot establish such origin, the proceedings as initiated must be quashed as being initiated without authority, jurisdiction and irregularly. It was specifically claimed by Mr. Majumdar that in view of the determinations in the case of Ramanlal Bhogilal Shah v. D.K. Guha, 1973 Cri LJ 921 (S.C.) (supra) and the observations as made therein, and which are indicated hereinbefore, since the petitioners were accused of offences as indicated in the concerned criminal proceedings, they would be entitled to the necessary protections under Articles 20(3) and as such they could not be compelled to be a witness against themselves by making and filing statements in the departmental proceedings. Mr. Majumdar also claimed that the findings arrived at or the determinations made would also be incapable and irregular, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Majumdar on a reference to the determinations in the case of Assistant Collector of Customs, Baroda v. Mukbujusein Ibrahim Pirjada 1970 Cri LJ 1305 (Guj) contended that existence of foreign markings cannot lead to such a presumption and such markings would at best be hearsay evidence. That determination was made following the observations of the Privy Council in the case of Comptroller of Customs v. Western Electric Co. Ltd. (1966) AC 367. In the said Privy Council case, the respondents, acting innocently, presented a customs import entry form giving as the country of origin of various articles imported from New Zealand either Australia or the United Kingdom. On an examination by a customs officer the goods were found to be marked "Denmark" or "Made in U.S.A." and an authorised agent of the respondents presented a post entry form for additional duty in which the place of origin of the goods was stated to be Denmark or the U.S.A. The respondents' Managing Director stated that he had no knowledge of the origin of the goods apart from what was stated on the invoices received from New Zealand. The Magistrates' Court convicted the respondents of making a false declaration in a Customs i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elebrated decisions that no one should be placed in jeopardy twice for the same offence and Clause (3) postulates that no one should be compelled to give evidence against himself in a criminal case. 25. In this proceedings, we are really concerned with the third clause and not the others and that too on consideration of the pleadings as indicated hereinbefore and more particularly when the real point to be decided and as indicated hereinbefore would be, whether the petitioners who were accused of offences in the concerned criminal proceedings, would be entitled to the necessary protections under article 20(3) and as such, if they could be compelled to be witnesses against themselves, by filing statements in the departmental proceedings. "Penalty" as observed in the case of Kedar Nath v. State of West Bengal, AIR 1953 S.C. 404 would mean punishment for the offence and would not include any other remedial measure provided for removing the mischief. Such word "penalty" shows that Article 20(1) has application only to punishments for offences. The use of the word "punishment" in article 20(2), in terms of the determinations in Sewpujanrai v. Collector of Customs AIR 1958 S.C. 845 or R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentation (not necessarily orally)' of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties, and (4) a decision which disposes of the whole matter by a finding upon the facts in .dispute and application of the law of the land to the facts so found, including, where required, a ruling upon any disputed question of law. 26. The provisions of Section 26, General Clauses Act, on construction, resemble those of Article 20(2) and notwithstanding the fact that the section permits a second trial after a previous one and acquittal, the provisions are not unconstitutional. But under those provisions of the General Clauses Act and Article 20(2), a double punishment is prohibited. So, an Act under which such double punishment would be permissible, would be void being repugnant to Article 20(2). It should of course be noted that the principle of issue estoppel would be diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are not judicial tribunals and the adjudication of confiscation, increased rate of duty or penalty under the said Act of 1878 does not constitute a judgment or order of a court or judicial tribunal, necessary for the purpose of supporting the plea of double jeopardy. On the basis of the determinations in the case of Maqbool Hussain v. State of Bombay,1953 Cri LJ l432 (S.C.) = 1983 E.L.T. 1284 (S.C.) (supra), it can be deduced that when the authorities under the 1878 Act confiscate the concerned gold, neither the proceedings taken before the Sea Customs authorities constituted a prosecution nor the order of confiscation constitutes a punishment inflicted by a court or judicial tribunal. The person prosecuted could not be said, by reason of those proceedings before the Customs authorities, to have been prosecuted/punished for the same offence with which he was charged in the criminal proceedings. The re-imposition of a civil penalty, e.g., confiscation, a seizure or a penalty, by the administrative agencies to implement the incidents relating to law, viz., income-tax, customs, etc., will not thus absolve the wrong-doer from liability to criminal proceedings, if he is liable upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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