JUDGMENT

R. S. SARKARIA, J.:—Veera Ibrahim, appellant was accused No. 2 in the complaint filed by Assistant Collector of Customs, Preventive Department Bombay before the Chief Presidency Magistrate for his prosecution along with one Abdul Umrao Rauf, accused No.1, in respect of offences under Ss. 135 (a) and 135 (b) of the Customs Act, 1962 and S.5 of the Imports and Exports (Control) Act, 1947. The trial Magistrate convicted both the accused on all the three charges and sentenced them to two years rigorous imprisonment on each count with a direction that the sentences would run concurrently. Against that judgment, two separate appeals were filed by the convicts in the Bombay High Court which acquitted both the accused of the offences under Section 5 of the Imports and Exports (Control) Act, 1947 and under Section 135 (b) of the Customs Act, but maintained their conviction 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 Cl. (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 under a Panchnama, prepared by them in the course of investigation. In this connection reference has been made to M. P. Sharma v. Satish Chandra, (1954) SCR 1077.

4. On the other hand, Mr. H. R. Khanna, appearing for the respondent submits that the words "accused of an offence" occurring in Art. 20 (3) take in only that person against whom a formal accusation of an offence has been levelled. Two other conditions for the applicability of this Clause, according to the Counsel, are: (a) that the testimony in question had been obtained under compulsion, and (b) it relates to the offence of which he stands formally accused. These conditions, it is maintained were not fulfilled in the present case.

5. Clause (3) of Article 20 provides :

"No person accused of any offence shall be compelled to be a witness against himself."

6. From an analysis of this clause, it is apparent that in order to claim the benefit of the guarantee against testimonial compulsion embodied in this clause, it must be shown, firstly, that the person who made the statement was "accused of any offence", secondly, that he made this statement under compulsion. The phrase "accused of any offence" has been the subject of several decisions of this Court so that by now it is well settled that only 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 his prosecution, would fall within its ambit.

7. In R. C. Mehta v. State of West Bengal, (1969) 2 SCR 461 this point came up for consideration in the context of a statement recorded by an officer of Customs in an enquiry under Section 171-A of the Sea Customs Act. One of the contentions raised was, that a person against whom such an enquiry is made is a person accused of an offence and on that account, he cannot be compelled to be a witness against himself and the statement obtained or evidence collected