Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1965 Supreme(Mad) 261

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P. RAMAKRISHNAN, THE HONOURABLE MR. JUSTICE R. SADASIVAM & THE HONOURABLE MR. JUSTICE M. NATESAN
Collector of Customs, Madras - Appellant
Versus
Rotumal Bherumal - Respondent
Case No : Criminal Revision Case No. 1374 of 1965
Decided On : 19 August 1965

Advocates Appeared:V.T. Rangaswami Iyengar, Govind Swaminathan, Advocates.

Statements recorded by Customs Officers under Sections 107 & 108 of the Customs Act, 1962 are admissible in evidence in a criminal trial.

Headnote:
CUSTOMS ACT - Statement recorded by Customs Officer - Admissibility in evidence - Bar under Section 25 of the Indian Evidence Act, Section 162 of the Criminal Procedure Code and Article 20(3) of the Constitution - Held, statements recorded by Customs Officers under Sections 107 & 108 of the Customs Act, 1962 are admissible in evidence in a criminal trial.
Fact of the Case:

The circumstances which led to this reference to a Full Bench of this Court have been set down in some detail, in the order of reference made by one of us, and it is not necessary to recapitulate them. The point referred to our decision is: "Are statements recorded by enquiring officers of the Customs Department under Sections 107 & 108 of the Customs Act, 1962 inadmissible in evidence in a criminal trial by reason of the bar under (1) Section 25 of the Indian Evidence Act; (2) Section 162 of the Criminal Procedure Code; and (3) Article 20(3) of the Constitution."
Finding of the Court:

1. Statements recorded by officers of the Customs Department under Section 107 and the Section 108 of the Customs Act, 1962, (Act 52 of 1962) would not be hit, for the purpose of admissibility in evidence in a criminal trial by reason of Section 25 of the Indian Evidence Act. 2. 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. 3. The constitutional protection under Article 20(3) of the Constitution cannot be availed of in respect of such statements.
Issues: Whether statements recorded by Customs Officers under Sections 107 & 108 of the Customs Act, 1962 are inadmissible in evidence in a criminal trial by reason of the bar under (1) Section 25 of the Indian Evidence Act; (2) Section 162 of the Criminal Procedure Code; and (3) Article 20(3) of the Constitution.
Ratio Decidendi: 1. 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 he submits at the end of the investigation, to the Magistrate, will be a charge sheet for the purpose of taking cognizance under section 190-B(1)(b) of the Code of Criminal Procedure by the Magistrate. 2. The splitting up of the provision for investigation into two sections, Sections 107 and 108 in the new Customs Act of 1962, in our opinion, will not make any difference to the application of the principles above stated. 3. 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. 4. The guarantee under Article 20(3) of the Constitution will not be available to the statements in this case, since it is not in dispute that they have been recorded only during an investigation undertaken by the Customs Officer under Sections 107 and 108 of the Customs Act of 1962, and at a time when the deponents did not stand in the position of accused in the light of the principles stated in the decision cited above.
Final Decision: The statements recorded by Customs Officers under Sections 107 & 108 of the Customs Act, 1962 are admissible in evidence in a criminal trial.

Judgment :-

The circumstances which led to this reference to a Full Bench of this Court have been set down in some detail, in the order of reference made by one of us, and it is not necessary to recapitulate them. The point referred to our decision is:

"Are statements recorded by enquiring officers of the Customs Department under Sections 107 & 108 of the Customs Act, 1962 inadmissible in evidence in a criminal trial by reason of the bar under (1) Section 25 of the Indian Evidence Act; (2) Section 162 of the Criminal Procedure Code; and (3) Article 20(3) of the Constitution." *

2.We will take up first for consideration, the question as to how far statements recorded by officers of the Customs Department under Section 107 and the Section 108 of the Customs Act, 1962, (Act 52 of 1962) would be hit, for the purpose of admissibility in evidence in a criminal trial by reason of Section 25 of the 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 certain description in the possession or under the control of the person summoned.

(3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required;

Provided that the exemption under Section 132 of the Code of Civil Procedure, 1908, shall be applicable to any requisition for attendance under this section.

(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code" *

We propose to go into the scope and extent of the powers of investigation, conferred by the Customs Act of 1962, in some detail a little later in the judgment. But in the meantime it will be useful to set down the gist of the decisions bearing on the subjects, to enable a proper appreciation to be made, of the provisions for investigation by Customs Officers contained in Act 52 of 1962.

3.In State of Punjab v. Barkat Ram the Supreme Court had to consider the effect of Section 25 of the Evidence Act, on statements recorded by a Customs Officer either under the Land Customs Act, 1924 (Act XIX of 1924) or under the Sea Customs Act, 1878 (Act VIII of 1878), and whether the Customs Officer, under the two provisions last cited, is a Police Officer within the meaning of that expression in Section 25 of the Indian Evidence Act. The relevant provisions for inquiry in the Sea Customs Act, 1878, was contained in Section 171A whose terms were more or less analogous to those Section 108 of the Act of 1962 with the difference that of 108 of Act 1962, refers to a gazetted officer. Section 107 of the Act of 1962 gives the power of investigation to be conducted in a less formal manner, to an office

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