TMI Blog1965 (8) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian Evidence Act; in other words, whether the officers of the Customs Department, investigating into smuggling offence, can be considered to be police officers, within the meaning of Section 25 of the Indian Evidence Act, Section 107 of Act 52 of 1962 reads thus : "Power to examine persons. - Any officer of Customs empowered in this behalf by general or special order of the Collector of Customs may, during the course of any enquiry in connection with the smuggling of any goods, - (a) require any person to produce or deliver any document or thing relevant to the enquiry; (b) examine any person acquainted with the facts and circumstances of the case." Section 108 reads thus : "Power to summon persons to give evidence and produce documents (1) Any Gazetted Officer of Customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or anything in any inquiry which such officer is making in connection with the smuggling of any goods. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be a police officer for the purpose of Section 25 of the Indian Evidence Act. They relied inter alia on the following special provisions in that Act: (l) The Act conferred on them powers to make search, powers to arrest and powers to record evidence, but these powers would not suffice to make them police officers as contemplated in Section 25 of the Indian Evidence Act, even if one were to assume, as held by certain High Courts, that officers on whom the powers of an officer incharge of a police station under Chapter XIV Cr. P. C. have been conferred, were police officers for the purpose of Section 25 of the Evidence Act. (2) The powers which the police officers enjoy, are powers for the effective prevention and detection of crimes in order to maintain law and order; but the powers conferred on customs officers are intended for the purpose of checking the smuggling of goods, the due realisation of customs duties and to determine to action to be taken by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines in the interest of the revenues of the country. This could be clear from the preamble to the Sea Customs Act, which states, "whereas i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w relating to customs." The preamble to the old Customs Act has already been referred to earlier in this Judgment. But the modification in the preamble of the new Act has little or no effect on the question we have to consider. All that the new preamble implies is that the legislative intended to pass a consolidated Act for the purpose of dealing with matters affecting customs. The provisions which are proudly analogous, in the old and new Customs Act, can be considered under the categories of (1) Power to arrest (Section 173 of the old Act and Section 104(1) of the new Act), (2) power of search (Section 172 of the old Act and Section 105 (1) of the new Act, (3) the procedure after arrest (Section 104 of the old Act and Section 102 of the new Act), and (4) power to investigate (Section 171-A of the old Act and Sections 107 and 108 of the new Act). It is undeniable that there are differences in the working used between the old rules and the new rules under the categories mentioned above, and we examined these provisions after setting them side by side in so as to bring into greater focus the nature of these verbal alterations but it is not necessary to expect them here, because it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to the powers of investigations conferred on an officer-in-charge of a police station under Chapter XIV of the Code of Criminal Procedure can be made at this stage. Section 160 Cr. P.C. states that police officer has got power to require attendance before him for examination, and Section 161 provides that such a person shall be bound to answer all questions relating to the case put to him by the police officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty of forfeiture. We may also add that Section 104(4) of the new Act, treats all offences under the Act as non-cognizable. This would mean that the power of the police to investigate into any offence under the Act of 1962 would be excluded automatically, whereas, if this provision had not been introduced. Schedule II of the Code of Criminal Procedure dealing with offences against other laws, would have given the police power to investigate into offences under the Sea Customs Act, if punishable with imprisonment for three years and above. 7.In regard to the power of search, there is an important variation in the new Act [Section 105(1)], because an Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rissa Excise Act of 1915, with particular reference to Section 78(3) contained therein, when terms are given above. 11.There are, in the course of the Judgment in Raja Ram Jaiswal v. State of Bihar (A.I.R. 1964 S.C. 828) certain observations which were relied upon by the counsel for the respondents before us, and which were also pressed into service in the order of the Sessions Judge, for holding that the customs officer exercising powers of investigation under Central Act 52 of 1962, is a police officer for the purpose of section 25 of the Indian Evidence Act. Thus, at page 833 of the report, the learned Judges observed that for the purpose of determining as to who can be regarded a "police officer" for the purpose of Section 25 of the Evidence Act the test is not the totality of the powers which an officer enjoys but the kind of powers which the law enables him to exercise. They make this position clear later on by remarking that the test will be to find out whether, such powers which are conferred on him, or which are exercisable by him, because he is deemed to be an officer-in-charge of a police station, establish a direct or substantial relationship with the prohibition enac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as defined under the Excise and Salt Act (Act 1 of 1944). That Act contained a provision Section 21, the material part of which reads thus : "When any person is forwarded under Section 19, to a Central Excise Officer, empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him. (2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 when investigation a cognizable case : "Provided that " It was pressed on Their Lordships that because of the powers thus conferred on the Central Excise Officer, the statement recorded by him would be hit under Section 25 of the Evidence Act, and the earlier decision of the Supreme Court in Raja Ram Jaiswal v. State of Bihar (AIR 1964 SC 828) was relied on support. Repelling this contention Their Lordships pointed out that it did not appear that a Central Excise Officer under the Salt Act, had the power to submit a charge sheet under Section 173 of the Code of Criminal P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted by Shri V. T. Rangaswami Iyengar learned counsel for the revision petitioner that this provision did not deter the learned Judges in their latest decision from holding that 25 I.E.A. was not attracted in the case of an officer empowered to investigate under the Central Excise and Salt Act of 1944, and that therefore the observation regarding the powers to grant bail contained in the earlier decision of the Supreme Court, in Raja Ram Jaiswals case may not be a conclusion test. We are inclined to agree with this submission. 16.The position that emerges in the light of the above clarification made in the latest decision of the Supreme Court in Badaku Joti Swant v. The State of Mysore, Criminal Appeal No. 26 of 1964 [1978 (2) E.L.T. (J 323) (S.C.)] is that for the purpose of Section 25 of the Evidence Act, it is important to find out whether the powers of investigation conferred on an officer other than a police officer in a particular enactment have been defined by that Act itself, as the powers of investigation conferred on the police officer, in-charge of a police station, under Chapter XIV of the Code of Criminal Procedure, with the consequence that the report which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the latest decision. 18.In view of the foregoing, we are of the opinion that the statements in the present case do not become inadmissible by reason of Section 25 of the Evidence Act. It consequently follows that they are also not hit by Section 162 Cr. P.C. 19.The question of the guarantee under Article 20(3) of the Constitution being available to the statements in the present case, has arisen for consideration by this Full Bench by reason of the fact that in an earlier Bench decision of this Court reported in Rainbow Trading Co. v Assistant Collector of Customs [AIR 1963 Mad. 434] the learned Chief Justice Ram Chandra Iyer and Anantanarayanan, J., (as he then was) expressed certain opinions, which have been pressed into service in this case by the learned counsel for the respondents accused. The facts in that case can be briefly set out. The appellant, a merchant at Madras had imported certain goods by a ship which arrived in Madras Harbour. There was a doubt entertained by the Customs Officers, as to whether the goods which he imported tallied with their description in the import licence. Therefore, the Customs Officers called upon the appellant to show cause why action sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Satish Chandra [1978 (2) E.L.T. (J 287) (S.C.) = 1954 SCR 1077] held that "for invoking the constitutional right against testimonial compulsion guaranteed under Article 20(3) there must be at the relevant stage a formal accusation against the party pleasing the guarantee relating to the commission of an offence which way result in a prosecution. Their Lordships also observed that in the case before them, which are so under the Foreign Exchange Regulations, the stage would be reached when a show cause notice was issued (as against a prosecution). But in that particular case that stage had not been reached and therefore it was held that Article 20(3) would not apply. 21.In the present case, the lower court had not been required to consider whether the statements now under consideration were hit by Article 20(3) of the Constitution. This question was raised only in the course of the hearing before us. It appears that these Statements were recorded following upon certain recoveries of consignments of gold, from certain persons, or from certain localities, in the course of an investigation under Section 107 or Section 108 of the Sea Customs Act, 1962. But it is conceded before us t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect, by my Lord, the Chief Justice. Such compelled testimony cannot be later relied on or used in a criminal prosecution as, at that stage, used the protection of Article 20(3) will be available to the appellant. This fully disposes of the argument or objection upon this ground." 24.Learned Counsel Sri Govind Swaminathan for some of the respondents and also the other Counsel who appear along with him for the other respondents relied upon these observations and contended that even if the statements of the respondents recorded during the enquiry under Section 107 or 108 are not hit by Article 20(3) of the Constitution, because at that time the persons did not stand as accused persons, at the present trial where they are standing as accused persons, they could rely upon the guarantee under Article 20(3) of the Constitution and insist upon the exclusion of such evidence. It is submitted by Sri V.T. Rangaswami Iyengar, learned Counsel for the petitioner herein, that the above observations of the two learned Judges in the Rainbow Trading Company case, require reconsideration for two reasons: one is that the decision of the Supreme Court in Sharma's case does not give any authority fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "to be a witness" is not merely in respect of testimonial compulsion in the court room but may well extended to compel testimony previously obtained from him". 27.Had the above observations concluded with the last cited remark, it might perhaps be claimed that the Supreme Court was contemplating also the exclusion of a confessional statement previously obtained from the accused person, for being used in evidence against him at the subsequent trial; but immediately following the sentence : "It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution". 28.Will show that Their Lordships were having in mind only the exclusion of compelled testimony at a stage when the person giving such compelled testimony or whose compelled testimony in the shape of a document is being obtained, stands at that time in the position of an accused. There appears to be no basis in that decision for inferring that the Supreme Court contemplated that the guarantee under Article 20(3) will be available to the accused at a subsequent stage of a trial even if that guarantee was not a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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