PETITIONER:
HIRA H. ADVANI ETC.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT:
13/08/1969
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
SIKRI, S.M.
HEGDE, K.S.
CITATION:
1971 AIR 44 1970 SCR (1) 821
1970 SCC (1) 509
ACT:
Sea Customs Act, s. 171-A--Statements under--Whether
subject to s. 132 Evidence Act (1 of 1872) and Art. 20(2) of
Constitution of India, 1950--Customs Officer whether a
court--Incriminating questions whether permissible in
enquiry s. 171-A--Effect of ss. 4, 5 and 7 of Indian Oaths
Act (10 of 1873)--Common law principles whether applicable
to matters covered by Evidence Act--Copy of premium debit
note of insurance policy--Admissibility under s. 114 (III.
7)--Appraiser of customs Giving evidence as to value of
goods after making enquiries in market-Evidence whether
in admissible as hearsay.
HEADNOTE:
The appellants and two others were prosecuted on a
complaint by the Assistant Collector of Customs, Bombay for
the offence of conspiracy and substantive offences
punishable under s. 167(81) of the Sea Customs Act and s. 5
of the Imports and Exports (Control) Act, 1947. The
complaint was that all the accused knowingly and with intent
to defraud the Government of India of duty payable on the
import of goods and/or to evade the prohibitions and
restrictions for the time being in force under or by virtue.
of the Sea Customs Act and of the Imports & Exports
(Control) Act, 1947 relating to the said import entered into
a conspiracy in Bombay and other places during the period
commencing from August 1958 and August 1959 to. acquire
possession of and to b.e concerned in carrying, removing and
concealing and otherwise dealing with prohibited and
restricted goods in very large quantities of high C.I.F.
value. The Presidency Magistrate held in regard to the
appellants that they were parties to a conspiracy as
alleged by the prosecution and convicted them under s./20-B
Indian Penal Code 'read with s. 167(81) of the Sea
Customs Act and s. 5 of the Imports and Exports (Control)
Act, 1947. The accused were also convicted of certain other
charges individually framed against them. The High Court
dismissed the appeal against the order of the Presidency
Magistrate. The appellants were however, granted a
certificate under Art. 134(1)(c) of the Constitution. The
main legal question that fell for consideration by this
Court was whether the statements made by the accused-
appellants before the Customs Officer were inadmissible in
evidence in view of the provisions cf s. 171-A. of the Sea
Customs Act, s. 132 of the Evidence: Act and Art. 20(3) of
the Constitution. Questions raised on behalf of the
appellants in their individual cases regarding the
admissibility of certain items of evidence and circumstances
against them also arose for consideration.
HELD: (1) A Customs Officer is not a court and
therefore statements made before him do not attract the
provisions of s. 132 of the Evidence= Act or Art. 20(3) oil
the Constitution.
(a) If the Legislature intended that the inquiry under
s. 171-A was to be considered a judicial proceeding not
within the narrow limits therein specified but generally, it
could have used suitable words to express its intention.
Although this Court gave a wider meaning to the expression
'judicial proceeding" in Lalji Haridas' ease there is
nothing in that judgment to warrant a still wider
interpretation of that definition. [83/C]
822
Maqbool Hussain v. State of Bombay, [1953] S.C.R. 730,
Thomas Dana v. State of Punjab, [1959] Supp. 1 S.C.R. 274,
286 Indo-China Steam Navigation Co. Ltd. v. Additional
Collector of Customs, [1964] 6 S.C.R. 594, referred to.
Lalji Haridas v. State of Maharashtra, [1964] 6 S.C.R. 700,
considered.
(b) The Oaths Act had no application to. the present
case. The preamble to the Act shows that it was an Act to
consolidate the law relating to judicial oaths, affirmations
and declarations. The argument that a customs officer
received evidence within the meaning of s. 4 of the Act and
therefore a person appearing before him was a witness
under s. 5 could not be accepted. Section 7 of the Act
shows that oaths under the Act had to be administered
according to such forms as the High Court might prescribe.
The Customs Officer have nothing to. do with such forms
and there was nothing on record to show that in the present
case any oath was administered to the person making the
statement. In Maqbool Hussain's case this Court stated
expressly that the Customs Officers were not authorised to
administer oath and the position was 'not altered by the
insertion of s. 171-A in 1955. [832 D-E; 833 A-C]
Observations in Queen Empress v. Tulla, 12 Bombay 36. 42
and St. Alubvn v. Attorney-General, (1951) 2 A.E.R. 478,
498, discussed.
(c) Our law of evidence which is a complete code does
not permit the importation of any principle of English
common law relating to evidence in criminal cases to the
contrary. There is no. scope for introduction of a rule of
evidence in criminal cases unless it is within the four
corners of s. 132 o.r some other provision of the Evidence
Act. [834 H; 836 B-C]
Amba Lal v. Union of India & Ors. [1961] 1 S.C.R. 933
and Ragina v. Benjamin Scott, 169 E.R. 909, referred to.
Sris Chandra Nandi v. Rakhalananda (deceased), I.L.R.
1941 Calcutta 468, applied.
(d) The decision of the House of Lords in Harz's case
does not support the proposition that under s. 171-A the
right of interrogation was limited to questions the answers
where to may not incriminate the person interrogated. The
section expressly authorises officers off customs to
secure the attendance of persons to give evidence or produce
documents or things relevant in any enquiry in connection
with smuggling of goods. A limit is set to the right to
obtain production in sub-s. (2) of the section and sub.ss.
(3) and (4) lay down that' if a person summoned does not
state the truth in such an examination he may be proceeded
against under 8. 193 I.P.C. for giving false evidence. [837
D-E]
Commissioners of Customs and Excise v. Harz. (1867) 1
All. E.R. 177, explained.
(e) In view of the decision of this Court in Nishi Kant
v. State Bihar, [1969] 2 S.C.R. 1033, the argument that
statements of the accused under s. 171-A(4) should be
considered only as a whole could not be accepted. The
inculpatory position of a statement can be accepted if the
exculpatory portion is found to be inherently improbable.
In the present case the explanations contained in the
statement were rejected by the courts below for 'reasons.
given. There was 'no. reason for this Court to take a
different view. [838 A-B]
(ii) The High Court rightly held that an office copy of
a premium debit note maintained by an insurance company in
the usual course of its
823
business and attached to the office copy of the insurance
policy was admissible in evidence under s. 114 (Illustration
f) of the Evidence: Act. No objection could be allowed to.
be raised on the ground that there was no proof of the
preparation of the original premium note. [825 H]
(iii) The evidence of an appraiser of customs off long
experience regarding the C.I.F. value of goods could not be
rejected merely on the ground that his opinion was arrived
at after making enquiries in the market and was therefore
only hearsay. His testimony as to the valuation based on his
knowledge of the market and experience had remained unshaken
in cross-examination and was rightly relied on by the High
Court. [827 D-F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.86 to
90 of 1968.
Appeals from the judgment and order dated January 13, 1968
of the Bombay High Court in Criminal Appeals Nos. 497 to
499, 516 and 500 of 1965 respectively.
R. Jethmalani, K.N. Mirchandani and U.P. Singh, for the
appellant (in Cr. A. No. 86 of 1968).
Nur-ud-din Ahmed, K.N. Mirchandani and U.P. Singh, for the
appellant (in Cr. A. No. 87 of 1968).
A.S.R. Chari, J.M. Mirchandani and K. Hingorani, for the
appellant (in Cr. A No. 88 of 1968).
K. Hingorani, for the appellant (in Cr. A. No. 89 of 1968).
N.H. Hingorani for K. Hingorani, for the appellant (in
Cr.A. 90 of 1968).
L.M. Singhvi, B.D. Sharma and S.P. Nayar, for the
respondent (in all the appeals).
The Judgment of the Court was delivered by
Mitter, J. After stating the facts His Lordship proceeded :]
The High Court dealt generally with the charge of conspiracy
against all the accused and individually with respect to the
charges raised against each accused and considered the
explanations given by them with regard to the circumstances
tending to criminal them. Mr. Jethmalani who argued the
case of the first appellant at some length raised various
questions of law with regard to the admissibility of the.
evidence afforded by statements before the Customs Officers
under s. 171-A, the conclusion of the High Court that his
client had custody or possession of all the exhibits found
as a result of the search of the premises of H.B. Advani
Brothers on 21st July, 1950, the correctness of the finding
of the High Court that Ex. F.-2 contained a complete account
with regard to the consignment per s.s. Canton, the finding
of the High Court that the C.I.F. value of the goods
exceeded the invoice value many times over by relying on the
evidence of an appraiser of the Customs department and the
absence of any
824
overt act on the part of his client after the search on 21st
July 1959. The argument with regard to the admissibility of
evidence of the statements was adopted by counsel for all
the other accused and need not be dealt with separately.
Mr. Jethmalani virtually conceded that if his contentions on
the above heads were not accepted by this Court, it would be
futile for him to argue that the High Court had gone wrong
in coming to the conclusion as to the. guilt of his client
on the strength of the evidence before it and the inference
which could legitimately be drawn therefrom.
We propose to deal with the other points before
examining the contention with regard to the admissibility of
the statements made in pursuance of powers exercised by the
customs officers under s. 171-A. With regard to the finding
of the High Court in agreement with that of the Magistrate
that accused I had the custody or possession of exhibits
Exs. B to F-2, counsel argued that except those seized from
his wallet the others were found in the drawer of the table
of the premises searched, there was no evidence to show that
the said table was the table of his client and as there was
no proof that his client had any financial proprietary
interest in the firm of H.B. Advani Brothers, there was
nothing to warrant the conclusion that the exhibits other
than’ those in the wallet were in his custody. The High
Court dealt elaborately with this point and we do not think
it necessary to reexamine the same except to note the
comment made before the High Court as well as before us that
the evidence of Mr. Dame, the panch witness who had said
that at the time of the search accused 1 was sitting at the
table in a drawer of which the incriminating exhibits were
found was. unbelievable. It was argued that inasmuch as the
panchnama did not record this fact Dame who gave evidence in
1962 should not have been believed when he claimed. to. have
remembered the. fact of accused 1 sitting at the table
mentioned. Both the courts accepted Dame’s statement and we
see no good reason to take a different view. After all it
would not be extraordinary for any person to recollect even
after a considerable lapse of time that when he entered the
room which was going to be searched, he found a particular
person seated at a certain table inasmuch as this, would be
the very first thing which would attract any_body’s
attention.
With regard to Ex. F.-2 which according to the
prosecution case–accepted by the courts below–contained an
account with regard to the consignment per s.s. Canton the
prosecution case was that the figures on the left-hand side
indicated the rates and the figures on the right-hand side
indicated the total C.I.F. value of the goods of each type
in that consignment. Before us exception was taken to the
two figures 80.80 and 11.02 appearing on the right hand
side. According to the prosecution the figure 11.02 was.
the amount of insurance premium in dollars paid in
825
respect of the consignment on s.s. Canton. As the
original which should have been with accused 2 was not
produced, a copy of the insurance policy was put in and
marked as Ex. Z.-301. Ex.Z-259-F-1 was a copy of the same
produced by accused 2 before the customs officers on 24th
July 1959 as was borne out by the statement of accused 2.
The contents of the two exhibits were found to be the same
by both the courts. The Claim Superintendent of the
insurance company in Bombay produced the copy of the marine
premium note in respect of the said policy showing the
amount of premium as $11.02 and said to have been received
by the Bombay office of the insurance company. Objection
was raised to the admissibility of evidence of one Martin,
Assistant Manager of New Zealand Insurance Company Hong
Kong Branch who had joined that branch in 1963 i.e. long
after the issue of the policy in 1959 although he had been
an employee of the said company since 1952 and claimed to be
familiar with the procedure of insurance of export cargo
followed by the company. According to this witness, the
company used to prepare as many copies of the policy as were
required by the insurer. A carbon copy of the original was
always kept in the office record. Martin produced an office
copy of the policy in respect of the consignment on s.s.
Canton to which was attached a marine premium debit note and
it was his evidence that in the usual course of business of
the company such a debit note. was, always prepared at the
time when the policy was issued and a copy thereof was
attached to the copy of the policy kept in the records.
Counsel objected to the reception of the copy of the premium
note on the ground that there was, no proof of its making or
its correctness. The High Court accepted the evidence of
Martin that the copy of the premium debit note had been
attached to the policy kept in the office record relying on
the presumption afforded by illustration (f) to s. 114 of
the Evidence Act that the practice of the insurance company
of attaching such a note to the policy had been followed in
this particular case. In our view the High Court was
entitled to do. so and no objection can be allowed to be
raised on the ground that there was no. proof of the
preparation of that original premium note.
With regard to. the figure. 80.80 counsel argued that there
was no proof that this was the amount of the freight in
dollars charged in respect of the consignment per s.s.
Canton. Counsel argued that the freight paid was not shown
in the bill of lading in this case Ex. Z-259-G and the
production of the copies of the bill of lading Ex. M-3 and
Z-142W on which somebody had written the figure $80.80
did not establish the prosecution case.Ex. M-2 was the
Manifest of Cargo per s.s. Canton and entry No. 5 therein
showed that in respect of the consignment 80.80 dollars had
been paid as freight. The prosecution adduced evidence of
P.W. 45 Yeshwant Shankar Keluskar of Mackjnon
826
Mackenzie & Co. who produced the Import General Manifest
dated 20th July 1959 as also the Freight Manifest.
According to this witness on the consignment on s.s. Canton
80.80 Hong Kong dollars had been paid as freight. He had
no. personal knowledge but made. his statement on the basis
of the record produced from his office. The prosecution
also relied on Ex. M-3 the shipper’s copy of the bill of
lading produced before the customs officers on 24th July
1959 by accused 2 containing the rate at which the freight
was charged and also the actual amount of freight charged
viz., 80.80 Hong Kong dollars. Objection was taken to this
inasmuch as the amount of the freight did not appear in
the bill of lading Ex. Z-259-E. The prosecution case was
that freight was paid after the preparation of the Bill of
lading and just before the goods were actually put on board
and the reasonable explanation was that the amount of
freight had been calculated subsequent to the preparation of
the bill of lading and endorsed thereon as on Ex. M-3
subsequently. According to the High Court it could be said
to be a subsequent original endorsement on a copy and the
High Court relied on Ex. Z-148-W a carbon copy of the bill
of lading bearing a similar endorsement and also on the fact
that on both Ex. M-3 and Ex. Z-148-W the words “freight
paid” appeared impressed by a rubber stamp in addition to
the calculation of freight and the actual amount of freight.
In our opinion, the High Court rightly held that all this
established the prosecution case that the figure 80.80 in
Ex. F-2 indicated the freight that was actually paid for
the consignment on s.s. Canton. As Ex. M-3 was produced by
accused 2 the consignee :before the customs officer on 24th
July 1959 and contained the said endorsement the High Court
was entitled to draw the necessary inference therefrom
supported as it was by Ex. Z-148-W the Captain’s copy of the
bill of lading which bore a similar endorsement.
Counsel contended that the evidence of P.W. 90 the
appraiser of customs with regard to the C.I.F. value and the
market value of the goods was at best hearsay and should
have been rejected by both the courts below.
The entries relied on in this connection appear on Ex-D
found in the possession of accused No. 1. There was no
evidence to show that it was written by him. P.W. 90 J.M.
Jamedar’s evidence was that he had been acting as an
appraiser of customs doing valuation work for 11 years and
had experience in the valuation of Japanese rayon goods,
fountain pen refills, Roamer ‘watches, plastic buttons,_
playing cards etc. He had taken samples from the
consignments and noted the particulars thereof and had made
the valuation of the goods of the consignments in question
after making enquiries from the market and on the basis
thereof had stated the C.I.F. value at the relevant time.
827
This witness had been subjected to prolonged cross-
examination but nothing came out therein which would enable
the court to hold that his testimony was unreliable. The
witness had stated that the goods had been valued by him
after making necessary enquiries from the importers dealing
in the same or similar goods supplied from foreign countries
as well as by referring to prices offered or quotations
whenever available and where it was not possible to obtain
the C.I.F. value from the market he had assessed the value
of such items to the best of his judgment and experience.
It was argued by counsel that as the witness was not himself
a party to whom offers and acceptances had been made or
communicated by others and as he did not claim to have been
present when such offers and acceptances had been made, his
evidence as regards the value was hearsay. It was said that
at best he was a mere conduit pipe of enquiries from others
and was not in the position of an expert. We find
ourselves unable to accept this submission. Jamedar
according to his unshaken testimony had been working as an
appraiser of customs. for 11 years out of his 16 year’
service and was engaged in the valuation of goods and
ascertaining their C./.F. value. He had occasion to value
goods which formed the subject matter of con, signments of
s.s. Canton. He claimed to have made enquiries in the
market with regard thereto. Apart from his own experience
and knowledge the record shows that the witness gave
evidence as to the C.I.F. value of a very large number of
articles ‘and it should have been quite easy for the defence
who cross-examined him at great length to discredit his
testimony by offering evidence from the market that the
witness’s estimate as to the C.I.F. value of any particular
item was unreliable. After all what the court had to do in
this case was to form an opinion as to. whether the C.I.F.
value greatly exceeded the invoice value as put forward by
the prosecution and Jamedar’s evidence certainly went to
show that the C.I.F, value and the market value of the
contraband goods imported was far in excess of the value
thereof mentioned in the invoices.
It may be mentioned here that the document Ex. D
mentioned the consignments inter alia of all the three ships
and the High Court held that the document related to
imports in which accused 2 was interested and possession of
the document by accused 1 went to show that he too was
concerned in such imports.
We now come to the question as to the admissibility of
the statements made to the customs officers under s. 171-A
of the Sea Customs Act. At the outset it has to be noted
that this section came into the Statute Book in the year
1955 and there was nothing similar to it in the Act before
such inclusion. The section’ reads:
“( 1 ) Any officer of Customs duly
employed in the prevention of smuggling shall
have power to summon
828
any person whose attendance he considers
necessary either to give evidence or to
produce a document or any other thing 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 made 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 be bound to
state the truth upon any subject respecting
which they are examined or make statements and
to produce such documents an 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 sections.
(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.”
In Maqbool Hussain v. The State of Bombay (1)
where provisions of the Sea Customs Act were
considered at some length by this Court before
the amendment of 1955 by insertion of s. 171-A
it was said (at p. 742):
“All this is for the enforcement of the
levy of and safeguarding the recovery of the
sea customs duties. There is no procedure
prescribed to. be followed by the Customs
Officer in the matter of such adjudication and
the proceedings. before the Customs Officers
are not assimilated in any manner whatever to
proceedings in courts of law according to the
provisions of the Civil or the Criminal
Procedure Code. The Customs Officer are not
required to act judicially on legal evidence
tendered on oath and they are not authorised
to administer oath to any witness. All
these. provisions go to. show that far from
being authorities bound by any rules of
evidence or procedure established by law and
invested with power to enforce their own
judgments or orders the Sea Customs
Authorities are merely constituted
administrative machinery for the purpose of
adjudging confiscation, increased rates of
duty and penalty prescribed in the Act.
(1) [1953] S.C.R. 730.
829
We are. of the opinion that the Sea
Customs Authorities are not a judicial
tribunal and the adjudging of confiscation,
increased rate of duty or penalty under the
provisions of the Sea Customs Act do not
constitute a judgment or order of a court or
judicial tribunal necessary for the. purpose
of supporting a plea of double jeopardy.”
The Court in that case was dealing with the
question as to whether an order of
confiscation was a punishment inflicted by a
court or a judicial tribunal within the
meaning of Art. 20 (2) of the Constitution.
In Thomas Dana v. The State of Punjab(1)
the provisions of the Sea Customs Act were
examined again and referring to s. 187-A it
was said:
“This section makes it clear that the
Chief Customs Officer or any other officer
lower in rank than him, in the Customs
department, is not a “court”, and that the
offence punishable under item 81 of the
Schedule to s. 167, cannot be taken cognizance
of by any court, except upon a complaint in
writing, made. as prescribed in that section.”
With regard to the use of the word ‘offence’
indiscriminately all over the Act it was said:
“All criminal offences are offences,
but all offences. in the sense of infringement
of a law, are not criminal offences but when
a trial on a charge of a criminal offence in
intended under ‘any one of the entries of the
Schedule aforesaid, it is. only the
Magistrate having jurisdiction, who is
empowered to impose a sentence of imprisonment
or fine or both.”
It was argued before us that the position became entirely
different as a result of the inclusion of s. 171-A as sub-s.
(4) of the section went to show that an enquiry by customs
authorities wherein statements of persons were recorded was
“to be deemed to be a judicial proceeding within the meaning
of s. 193 and s. 228 of the Indian Penal Code.” Counsel
argued that such proceeding was a judicial proceeding also
for the other purposes thus attracting the operation of s.
132 of the Evidence Act. Apart from the point as to non-
exercise of claim of privilege (about which we express no
opinion) there can be no question that if the said section
of the Evidence Act is to be attracted to such a proceeding
statements made by him in any such inquiry could not be
proved against him in the criminal proceedings launched. It
was
(1) [1959] Supp. 1 S.C.R. 274 at 286.
830
argued that sub-s. (3) of s. 171-A made it obligatory on
the persons summoned to state the truth upon any subject
respecting which he was examined and if the proceeding was
judicial proceeding there was nothing to. exclude the
applicability of s. 132. Our attention was drawn to s.1 of
the Indian Evidence Act which made the Statute applicable to
all judicial proceedings in or before any court in the whole
of India. As ‘court’ in s. 3 included all Judges and
Magistrates and all persons, except arbitrators, legally
authorised to. take evidence, it was contended that the
customs officers being authorised by s. 171.-A of the
Sea Customs Act were ‘courts’ within the meaning of the
definition of s. 3. Reference may also be made to the
definition of ‘evidence’ in the said section which shows
that the word means and includes inter alia all statements
which the court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry.
Reference. was. also made to s. 4(1) of the Code of
Criminal Procedure, 1898 under which ‘investigation’ for
purposes of the Code includes all the proceedings under the
Code for the collection of evidence conducted by a police
officer or by any person (other than a Magistrate) who. is
authorised by a Magistrate tiffs behalf; and cl. (m)
which defines “judicial proceeding” as including any
proceeding in the course of which evidence is or may be
legally taken on oath. Counsel relied strongly on the
judgment of this Court in Lalji Haridas v. State of
Maharashtra(1) where this Court had to consider whether an
Income-tax Officer exercising powers under s. 37 of the
Income-tax Act, 1922 was a ‘ court’ within the meaning of s.
195 (1) (b) of the Code of Criminal Procedure making the
sanction thereunder obligatory for the filing of a complaint
in respect of an offence alleged to have been committed
under s. 193 of the Penal Code. Sub-ss. (1) to (3) of s. 37
of the Income-tax Act were worded somewhat differently from
those of sub ss. (1) to (3) of s. 171-A of the Sea Customs
Act. The words in sub-s. (4) of s. 37 are for all practical
purposes identical with those. used in s. 171-A (4). There
this Court by a majority of three to two were of opinion
that the proceedings before the Income-tax Officer were
judicial proceedings not only under s. 193 of the Indian
Penal Code but were also. to. be treated as proceedings. in
any court for the purpose of s. 195 (1) (b) of the Code of
Criminal Procedure. The majority Judges referred to the
sections in the Indian Penal Code and the Criminal Procedure
Code mentioned above and to provisions in various other Acts
wherein the legislature had expressly mentioned that s. 195
Cr. P.C. would apply to proceedings before diverse
authorities and accepted the argument that reading s. 193
I.P.C. and s. 195 (1) (b) Cr. P.C. together it would be
reason-
(1) [1964] 6 S.C.R. 700.
831
able to hold that proceedings which are judicial under the
former should be taken to be proceedings under the latter.
According to the minority Judges although the word ‘judicial
proceeding’ was wide enough to. include not only proceedings
be,fore a ‘court’ but proceedings before certain tribunals
it was clear from a decision of this Court in Indo-China
Steam Navigation Co., Ltd. v. The Additional Collector of
Customs(1) that a Customs Officer “was not a court or
Tribunal” and s. 37(4) of the Income-tax Act should not be
given a meaning different to that given in s. 171-A(4) of’
the Sea Customs Act.”
In our view if the Legislature intended that the inquiry
under s. 171-A was to. be considered a judicial proceeding
not within the narrow limits therein specified but
generally, it could have used suitable words. to express its
intention. Although this Court gave a wider meaning to the
expression ‘judicial proceeding’ in Lalji Haridas’s case(2)
there is nothing in that judgment to warrant a still wider
interpretation of that definition.
Mr. Jethmalani referred to the provisions in the Indian
Oaths Act (X of 1873) and on the basis of his argument that
the statements under s. 171-A (4) were made on oath
contended that the proceeding became a judicial proceeding
in the wider sense of the word. In our view the Oaths Act
has no application here. The preamble to the Act shows that
it was an Act to consolidate the law relating to judicial
oaths, affirmations and declarations and was enacted because
the Legislature thought that it “expedient to consolidate
the law relating to judicial oaths, affirmations and
declarations and to repeal the law relating to official
oaths, affirmations and declarations.” Section 4 of the Act
provided that:
“The following Courts and persons are
authorised to administer, by themselves or by
an officer empowered by them in this behalf,
oaths and affirmations in discharge of the
duties or in exercise of the powers imposed
or conferred upon them respectively by law:
(a) all Courts and persons having by
law or consent of parties authority to receive
evidence :”
The relevant portion of s. 5 runs–
“Oaths or affirmations shall be made by
the following persons :-
(a) all witnesses, that is to say, all
persons who may lawfully be examined or give
or be required to give, evidence by or before
any Court or person having by law or consent
of parties authority to examine such persons
and to receive evidence :”
(1) [1964] 6 S.C.R. 594. (2) [1964] 6 S.C.R. 700.
SupCI/69–9
832
Counsel argued that a Customs Officer was a person who
had authority by law to receive evidence within the meaning
of s. 4 of the Oaths Act and anybody who could be lawfully
examined before such a person would be a witness within the
meaning of s. 5 and as such it would be. necessary to
administer oath to them. in our view, the argument proceeds
on a complete misconception of the provisions of the Act.
The preamble to the Act shows that the oaths referred to are
only judicial oaths and section 7 shows that all such oaths
had to be administered according to such forms as the High
Court might prescribe. The Customs Officers have nothing to
do with such farms and nothing has been shown to us that
‘any such formality was ever complied with. Neither do the
records show that any oath was administered to any person
making a statement under s. 171-A. In Maqbool Hussain’s
case(1) this Court stated expressly that the Customs
Officers were not authorised to administer oath and the
position according to us is not altered by the insertion of
s. 171-A in 1955.
Mr. Jethmalani referred us to the decision in Queen
Empress v. Tulja(2) and to certain observations of West, J.
in that case. There it was held that a Sub-Registrar under
the Registration Act (111 of 1877) was not a Judge, and,
therefore, was not a ‘Court’ within the meaning of s. 195 of
the Code of Criminal Procedure and as such his sanction was
not necessary for a prosecution for forgery in respect of a
forged document presented for registration in his office.
West, J. had however, observed that:
“An inquiry is judicial if the object of
it is to determine a jural relation between
one person and another, or a group of persons;
between him and the community generally; but,
even a judge, acting without such an object
in view, is not acting judicially.”
Relying on this observation counsel argued that the object
of an inquiry under s. 171-A was to find out and establish
the jural liability of the persons making the statement,
viz., whether he had committed an offence or not, and as
such the inquiry was a judicial proceeding. In our view
the argument is not worthy of acceptance. At the stage
envisaged by s. 171-A a Customs Officer is given the power
to interrogate any person in connection with the smuggling
of any goods which it is his duty to prevent. Such a
person may have nothing to do with the smuggling of any
goods although he may know where such goods are or who has
or had them. Sub-s. (3) of s. 171-A does not compel any
person to make a statement but if he makes a statement he
has to state the truth so as to avoid punishment under s.
193 I.P.C. At that stage nothing may be known as (1)
(1) [1953] S.C.R. 730. (2) 12 Bombay 36 at 42.
833
0 whether an offence has been committed or who has committed
t and the person interrogated at that stage certainly is not
a person accused of or charged with an offence. He is
merely called upon to give evidence to facilitate the
inquiry. He is not a witness giving evidence in a court and
his testimony will make him liable under s. 193 I.P.C. only
because of the express provision of law in sub.-s. (4) of s.
171-A.
Counsel also argued that as a Customs Officer according
to all the decisions of this Court already mentioned, is to
act judicially, a proceeding for recording evidence before
him was a judicial proceeding. This wholly without any
force because even administrative officers have to act
judicially. Counsel further argued that a deeming
provision in a statute was not necessarily designed to give
an artificial construction to a word or a phrase but it
might be used for other purposes also. He referred to the
case of St. Aubyn v. Attorney-General(1) where it was said:
The word “deemed” is used a great deal
in modern legislation. Sometimes it is used
to impose for the purpose of a statute an
artificial construction for a word or phrase
that would not otherwise prevail. Sometimes
it is used to put beyond doubt a particular
construction that might otherwise be
uncertain. Sometimes it is used to give a
comprehensive description that includes what
is obvious, what is uncertain and what is, in
the ordinary sense, impossible.”
It was argued that the Legislature might well have used the
word “deemed” in sub-s. (4) of s. 171 not in the first of
the above senses but in the second, if not the third. In
our view the meaning to be attached to the word “deemed”
must depend upon the context in which it is used. In Lalji
Haridas’s case(2) this Court went elaborately into the
question as to the extent of this deeming provision which
would have been wholly redundant if the word ‘deemed’ in
section 171-A(4) was used in any sense other than to give an
artificial construction. The second branch of Mr.
Jethmalani’s argument under this head was that the principle
underlying s. 132 of the Evidence Act was a principle of
Common Law well known to criminal jurisprudence and as such
was applicable even if s. 132 in terms was not attracted.
In this connection, he referred us to certain observations
of Subbarao, J. (as he then was) in Amba Lal v. The Union of
India and Others(3) where in his dissenting judgment on the
interpretation of ss. 168 and 171-A of the Act his Lordship
had observed that:
“To such a situation, though the
provisions of the Code of Criminal Procedure
or the Evidence Act may
(1) [1951] 2 A.E.R. 473 at 498.
(2) [1964] 6 S.C.R. 700.
(3) [1961] 1 S.C.R. 933.
834
apply except in so far as they are
statutorily made applicable, the fundamental
principles of criminal jurisprudence and of
natural justice must necessarily apply.”
Counsel also referred us to the decision in
Regina v. Benjamin Scott(1). The question
before the court in that case was whether the
answers to the questions put to the defend,ant
before the court of bankruptcy relating to his
trade dealings and estate tending disclose a
fraud of concealment of his property was
admissible evidence against him on indictment
charging him with altering, mutilating and
falsifying his books with intent to defraud
his creditors. The examination was taken in
conformity with s. 117 of the Bankrupt Law
Consolidation Act (12 and 13 Vict. c. 106)
which enacted that a bankrupt may be examined
by the court “touching all matters relating to
his trade, dealings or estate, or which may
tend to disclose any secret grant, conveyance
or concernment of his lands etc.” There was
no dispute that the questions put were
relevant as touching matters relating to his
trade etc. Delivering judgment in which three
other Judges concurred, Lord Campbell, C.J.
held that the defendant was bound to answer
the questions although by his answers he might
criminal himself. According to the learned
Chief Justice:
” …. and we think it would be
contravention of the expressed intentions of
the legislature to permit the bankrupt to
refuse to answer such questions; for even
since the reign of Elizabeth successive
statutes have been passed, purporting to
guard against frauds in bankruptcy and the
bankrupt, when called upon to answer
questions respecting his estate and
effects, should not be allowed to avail
himself of the common law maxim “nomo tenetur
se ipsum accusare.”
With regard to the maxim relied on by the
defendant’s counsel he said:
“But Parliament may take away this
privilege, and enact that a party may be
bound to accuse himself, that is, that he
must answer questions by answering which he
may be criminated.”
He further held that the maxim could not be treated as an
implied proviso to be subjoined to the 117th section.
Mr. Jethmalani however relied on certain observations of
Coleridge, 1. in his dissenting judgment. In our view the
maxim of the English Common Law can have no application
here. Our law of evidence which is a complete Code does not
permit the importation of any principle of English Common
Law relating
(1) 169 English Reports page 909.
835
evidence in criminal cases to the contrary. Section 2
of the Indian Evidence Act before its repeal by the
Repealing Act (1) of 1938) provided as follows:
“2. On and from that day 1st September
1872) the following laws shall be repealed;
(1 ) All rules of evidence not contained
in any statute, Act or Regulation in force in
any part of British India;
(2) All such rules, laws and regulations
as have acquired the force of law under the
25th section of the ‘Indian Councils Act,
1861′ in so far as they relate to any matter
herein provide.d for; and
(3 ) The enactments mentioned in the
schedule hereto, to the extent specified in
the third column in the said schedule.
But nothing herein contained shall be
deemed to affect any provision of any Statute,
Act or Regulation in force in any part of
British India and not hereby expressly
repealed.”
We may usefully refer to the judgment of the
Privy Council in Sris Chandra Nandi v.
Rakhalananda (deceased)(1) where the Judicial
Committee approved of the statement of the law
contained in the judgment of the High Court
reading:
“It is to be noticed in this connection
that s. 2( 1 ) of the Indian Evidence Act
repeals the whole of the English common law on
evidence so far as it was in force in British
India before the passing of the Indian
Evidence Act, and that provision of the law in
effect prohibits the employment of any kind
of evidence not specifically authorised by
the Act itself.”
Lord Atkin who delivered the judgment of the
Judicial Committee pointed out that evidence
which was not admissible under the Indian
Evidence Act could not be let in for the
purpose of bringing out the truth and said:
“What matters should be given in
evidence as essential for the ascertainment of
truth, it is the purpose of the law of
evidence, whether at common law or by statute
to define. Once a statute is passed, which
purports to contain the whole law, it is
imperative. It is not open to any Judge to
exercise a dispensing power, and admit
evidence not admissible by statute, because
to him it appears that the irregular evidence
would throw light
(1) I.L.R. [1941] 1 Calcutta, 468.
836
upon the issue. The rules of evidence,
whether contained in a statute or not, are the
result of long experience, choosing no doubt
to confine evidence to particular forms, and
therefore eliminating others which it is
conceivable might assist in arriving at
truth.”
The question there related to the admissibility of evidence
which according to the Judicial Committee should not have
been adduced. The question before us is somewhat different
but if the Indian Evidence Act is ‘a complete Code repealing
all rules of evidence not to be found therein, there is, in
our opinion, no scope for introduction of a rule of evidence
in criminal cases unless it is within the four corners of s.
132 or some other provision of the Evidence Act. As the Act
does not apply to interrogations by a Customs Officer
exercising powers under s. 171-A of the Sea Customs Act s.
132 of the Evidence Act cannot be attracted.
Lastly it was contended that s. 171-A did not authorise
interrogation of a subject to extract admissions from him
which could be used against him on a future occasion. In aid
of this proposition reliance was placed on a decision of the
House of Lords in Commissioners of Customs and Excise v.
Harz(1). The main question there was whether the answers
given by the respondents in the course of interrogation by
Customs Officer were admissible in evidence. The power to.
interrogate was said to be derived from the Finance Act,
1946, s. 20 (3 ) which provided in substance that every
person concerned with the purchase or importation of goods
etc. shah furnish to the commissioners within such time and
in such form as they may require information relating to the
goods or to the purchase or importation thereof etc., and
shall upon demand made by any officer or other persons
authorised in that behalf by the commissioners produce any.
books or accounts or other documents of whatever nature
relating thereto for inspection by that officer or person.
On a construction of that provision Lord Reid was of the
view that there was. nothing therein to require the trader
to give answers which might incriminate him. His Lordship
also observed that the section gave the officer no right to
submit the respondents to prolonged interrogation they had
to. undergo and the respondents could not have been
prosecuted if they had refused to answer. His Lordship
observed that the right of the CommiSsioners to require
information was quite different and said:
“If a demand for information is made in
the proper manner the trader is bound to
answer the demand within the time and in the
form required whether or not the answer may
tend to incriminate him, and if he fails to
comply with the demand he can be prosecuted.
If he
(1) [1967] 1 All. E.R. 177.
837
answers falsely he can be prosecuted for that,
and, if he answers in such a manner as to
incriminate himself, I can see no reason why
his answer should not be used against him.
Some statutes expressly provide that
incriminating answers may be used against the
person who gives them and some statutes
expressly provide that they may not. Where, as
here, there is no such express provision the
question whether such answers are admissible
evidence must depend on the proper
construction of the particular statute.
Although 1 need not decide the point, it seems
to me to be reasonably clear that
incriminating answers to a proper demand under
this section must be admissible if the
statutory provision is to achieve its obvious
purpose.”
Prima facie these provisions,are against the contention of
the appellant. In that case the House of Lords in effect
held that the provision of law did not entitle the
Commissioners “to send a representative to confront the
trader, put questions to him orally and demand oral answers
on the spot; and that it does not entitle them to send
their representative to subject the trader to a prolonged
interrogation in the nature of a cross-examination.” The
provisions of s. 171-A are in sharp contrast to the
provision of law before the House of Lords. Here the
statute expressly authorises officers of customs to secure
the attendance of persons to give evidence or produce
documents or things relevant in any enquiry in connection
with the smuggling of goods. A limit is set to the right to
obtain production in sub-section (2) of the section and
subsections (3) and (4) lay down that if a person summoned
does not state the truth in such an examination he may be
proceeded against under s. 193 I.P.C. for giving false
evidence.
Counsel also drew our attention to the new sections 107
and 108 of the Customs Act, 1962 where the power to, examine
persons has been given to all officers of customs by the
first of the above mentioned sections and the power to
summon persons to give evidence and produce documents as in
s. 171-A is given to a gazetted officer of customs under s.
108 of the new Act. In our view, this difference is
immaterial for the purpose of this case and there is nothing
in s. 171-A which limits the right of interrogation to
questions the answers whereto may not incriminate the person
interrogated.
The High Court considered at some length the question as
to whether the statement of the accused under s. 171-A(4)
should be considered as a whole or whether reliance could be
placed upon portions thereof rejecting the rest. It was
argued before the High Court that inasmuch as the statements
were sought to be relied
838
upon as a confession the court was bound to take into
account not only the portions containing admissions but also
the explanations which followed. The High Court held that a
statement under s. 171-A did not stand at par with a
confession so that it had to be taken as a whole or rejected
as a whole. Even with regard to the statements portions of
which are inculpatory against the maker and other portions
which are not, it has been held in a recent decision of this
Court that the inculpatory portion can be accepted if the
exculpatory portion is found to be inherently
improbable–vide Nishi Kant v. State of Bihar(1). In this
case the explanations contained in the statements were
considered by the courts below and for reasons given they
thought fit to reject the same and we see no reason to come
to a different view.
[The Court then considered the case of the other accused
and held :]
The net result is that all the appeals excepting that of
accused No. 3, Meghraj Gopaldas Jham fail and are hereby
dismissed. Meghraj Gopaldas Jham’s appeal is allowed and he
is set at liberty. His bail bond will be cancelled.
G.C.
(1) [1969] 2 S.C.R. 1033.
839