IMPORTANT POINT
Unless the empowered authority u/s 108 of the Customs Act administers the caution or the warning embodied u/s 164(2), Criminal Procedure Code before recording a statement of confessional nature, from the person summoned, the statement so recorded will be inadmissible in evidence for any purpose and non-compliance with the mandatory provisions is not curable u/s 463 of the Code.

ORDER

Ramanujulu Naidu, J. - These two petitions are filed under article 226 of the Constitution of India for issue of writs of habeas corpus or any other appropriate writs or orders or directions for bearing the respondents from violating the personal liberty of the petitioner in writ petition No. 3103 of 1991 and the husband of the petitioner in writ petition No. 3104 of 1991, by using in any manner, the statements recorded from the petitioner in writ petition No. 3103 of 1991 on 13-8-1989, 14-8-1989 and 15-8-1989 and the husband of the petitioner in writ petition No. 3104 of 1991 on 4-8-1989, 5-8-1989 and 7-10-1989, for the purpose of launching any prosecution or penal action under any enactment or enactments in force.

2. In connection with an occurrence that took place on 4-9-1989 at Guntur, a container consigned in the name of "Southern Agro Agencies" and received at the Inland Container Depot, attached to the Collectorate of Customs, Guntur, contained, on thorough inspection by the officials of the Customs Department, Guntur, a few parts of Tractors and a large quantity of ball-bearings, though it was declared to contain magnesium powder and some parts of tractors. In connection with the said occurrence, three statements from the petitioner in writ petition No. 3103 of 1991 were recorded by the officials of the Directorate of Revenue Intelligence, Madras on 13-8-1989, 14-8-1989 and 15-8-1989. Likewise, two statements were also recorded from the husband of the petitioner in writ petition No. 3104 of 1991, on 4-8-1989 and 5-8-1989 by the officials of the Directorate of Revenue Intelligence, Madras. One more statement was also recorded from the husband of the petitioner in writ petition No. 3104 of 1991 by the officials of the Enforcement Directorate of Revenue Intelligence, Madras on 7-10-1989, under section 40 of the Foreign Exchange Regulation Act. Relying upon the said statements, notices were issued to the petitioner in writ petition No. 3103 of 1991 and the husband of the petitioner in writ petition No. 3104 of 1991 under the Foreign Exchange Regulations Act and also under the Customs Act to show cause as to why personal penalty should not be levied and prosecution should not be launched. It is alleged that on the strength of the statements so recorded, there is imminent prospect of the petitioner in writ petition No. 3103 of 1991 and the husband of the petitioner in writ petition No. 3104 of 1991 being penalised and prosecuted.

3. As common questions of law are raised in both the writ petitions, the same are being disposed of together. No counter-affidavits on behalf of the respondents are insisted upon, as the learned counsel for the petitioners has confined himself to impugne the statements by raising pure question of law with liberty to impugne the statements on other grounds at an appropriate stage.

4. Sri B. Kumar, learned counsel appearing for the petitioners strenuously contends that while recording statements of confessional nature from any person summoned, under section 108 of the Customs Act, the empowered officer of Customs should administer a warning or a caution to the person summoned, that he is not bound to make a confession and that, if he does so, it may be used as evidence against him. The questions which therefore, arise for our consideration are two-fold. Firstly, is there any requirement in law enjoining an obligation on the part of the empowered officer to administer the caution or the warning as enacted under section 164(2) Cr.P.C. to the person summoned, before recording a confessional statement from him? Secondly, if there is such a requirement, what is the effect of its breach? The answers to the questions necessarily depend upon the applicability of the provisions of the Criminal Procedure Code, to the statements of confessional nature recorded under section 108 of the Customs Act. Section 4(1) of the Code of Criminal Procedure lays down that all offences under the Indian Penal Code shall b