Very important point
It is not necessary to comply with the precautions envisaged in Section 164 of the Code of Criminal Procedure for short ‘the Code’ when Customs officers record statement under Section 108 of the Customs Act; a statement recorded by customs officers under Section 108 of the Customs Act is admissible in evidence. The court has to test whether the inculpating portions were made voluntarily or whether it is vitiated on account of any of the premises envisaged in Section 24 of the Evidence Act.

Headnote:(i) Customs Act, 1962—Section 108—Code of Criminal Procedure, 1973—Section 164—Statement recorded under Section 108 by customs officers—Application of provisions of Section 164 Cr. P.C.—Precaution envisaged in Section 164(2) need not be complied with—Statement recorded by customs officer under Section 108 is admissible as evidence—Court has to test whether inculpating portions were made voluntarily or whether it is vitiated on account of any of premises envisaged in Section 24 of Evidence Act—Confessional statement cannot be excluded from evidence on ground Section 164(2) of Cr. P.C. not complied with.
       (ii) Criminal Procedure Code, 1973—Section 164—Customs Act, 1962—Section 108—Confessional statement—Procedure for recording—Precautions envisaged in Section 164 of Cr. P.C.—Not applicable when customs officers record statement under Section 108 of Customs Act. (Paras 9, 10, 11 and 16)
       Section 164 of the Code deals with “recording of confession and statements”. The provision empowers a judicial magistrate to record any confession or statements made to him during the course of an investigation “under this Chapter or under any other law for the title being in force or at any time afterwards before the commencement of the inquiry or trial.” It must be pointed out that the power conferred by the said provision could be exercised only by a judicial magistrate. Even a police officer on whom power of a magistrate has been conferred is forbidden from recording a confession. Sub-sections (2) and (4) deal with procedure which such magistrate has to follow while recording inculpatory statements made by persons. (Para 9)
       Section 108 of the Customs Act does not contemplate any magisterial intervention. The power under the said Section is intended to be exercised by a gazetted officer of the Customs Department. Sub-section (3) enjoins on the person summoned by the officer to state the truth upon any subject respecting which he is examined. He is not excused from speaking the truth on the premise that such statement could be used against him. The said requirement is included in the provision for the purpose of enabling the gazetted officer to elicit the truth from the person interrogated. There is no involvement of the magistrate at that stage. The entire idea behind the provision is that the gazetted officer questioning the person must gather all the truth concerning the episode. If the statement so extracted is untrue its utility for the officer gets lost. (Para 10)
       In this context we bear in mind that a confession made to a police officer can be recorded by him without any of the constraints incorporated under Section 164 of the Code. But the safety of the confessor who makes such confession to the police officer is that the same is forbidden from use in evidence. The ban contained in Section 25 of the Evidence Act is an absolute ban. But it must be remembered that there is no ban in regard to the confession made to any person other than a police officer, except when such confession was made while he is in police custody. The inculpatory statement made by any person under Section 108 is to non-police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinised by the court in the same manner as confession made by an accused person to .any non-police personnel. The court has to be satisfied in such cases, that any inculpatory statement made by an accused person to a gazetted officer must also pass the tests prescribed in Section 24 of the Evidence Act. If such a statement is impaired by any of the vitiating premises enumerated in Section 24 that statement becomes useless in any criminal proceedings. Therefore a statement recorded by customs officers under Section 108 of the Customs Act is admissible in evidence. The court has to test whether the inculpating portions were made voluntarily or whether it is vitiated on account of any of the premises envisaged in Section 24 of the Evidence Act. (Paras 11 and 16)
       Result : Appeals allowed.

JUDGMENT

Thomas, J.—Leave granted.

Is it necessary to comply with the precautions envisaged in Section 164 of the Code of Criminal Procedure for short ‘the Code’ when Customs officers record statement under Section 108 of the Customs Act? A Division Bench of the Andhra Pradesh High Court held that it is necessary if the statements were to be used against the maker thereof and that view was followed by a Single Judge of the same High Court in the present case which resulted in refusal of leave to appeal when an order of acquittal was challenged in the High Court. This appeal, by special leave, is against the against order of refusal passed by the Single Judge.

2. Certain companies which engaged in manufacturing cigarettes, along with some of their Directors were prosecuted before the Court of a Special Judge (Economic Offences) at Hyderabad for offences under different clauses of Section 9(1) of the Central Excise Act and under Section 120B of the Indian Penal Code. The trial judge after holding inquiry framed charges against the respondents for the aforesaid offences and proceeded with the trial but in the end he acquitted all of them. The gist of the allegations against them is that the respondent company, which engaged in the manufacture of cigarettes during the period between 1.9.1981 and 30.11.1985, removed large quantities of cigarettes from their factories at Biccavolu without accounting them and without paying excise duty. The further allegation is that large quantities of cigarettes were concealed in their godowns without accounting them and in the above process a very huge amount of central excise duty was evaded fraudulently. Such acts were done by the respondent pursuant to the criminal conspiracy hatched and perpetrated by them.

3. The Special Judge, after a detailed trial, found the respondent not guilty and acquitted him. The appellant filed an appeal before the High Court of Andhra Pradesh and moved for leave to appeal. Learned Single Judge who heard the petition for leave felt that he is bound by the earlier decision rendered by a Division Bench of the same High Court in N.S.R. Krishna Prasad v. Collector of Customs1. According to the said decision, any inculpatory statement recorded by the authorities under Section 108 of the Customs Act without following and complying with the constraints prescribed in Section 164 of the Code would be inadmissible evidence in a trial against the maker of that statement. What the learned Single Judge has stated on that score is the following :

“Since the Excise Officers who have recorded the statements from the accused in this case have not administered the warning to the accused as required under section 164 sub-section (2) of the Code of Criminal Procedure, non-compliance of the mandatory provision contained in 164 sub-section (2) of the Code of Criminal Procedure renders the statements inadmissible in evidence as held by the Division Bench. Therefore, those statements are inadmissible against the makers thereof or against the co-accused. “

4. The Division Bench of the High Court in N.S.R Krishna Prasad’s case (supra), whose decision the learned Single Judge followed, has held thus :

“It, therefore, follows that unless the empowered authority under Section 108 of the Customs Act administers the caution or the warning embodied under Section 164(2) Cr.P.C. before recording a statement of confessional nature, from the person summoned, the statement so recorded will be inadmissible in evidence for any purpose.”

5. On the above premise learned Single Judge excluded all the confessional statements from consideration. The remaining evidence was found to be insufficient to establish the guilt of the respondent. Learned Single Judge declined to grant leave to appeal by observing: “As the prosecution has failed to make out a case to grant leave to file appeal against the order of acquittal passed by the trial court, the petition for leave to file the appeal is dismissed and conseq

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Cases Referred (6)