{"id":254162,"date":"1969-08-13T00:00:00","date_gmt":"1969-08-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hira-h-advani-etc-vs-state-of-maharashtra-on-13-august-1969"},"modified":"2015-05-08T03:48:12","modified_gmt":"2015-05-07T22:18:12","slug":"hira-h-advani-etc-vs-state-of-maharashtra-on-13-august-1969","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hira-h-advani-etc-vs-state-of-maharashtra-on-13-august-1969","title":{"rendered":"Hira H. Advani Etc vs State Of Maharashtra on 13 August, 1969"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hira H. Advani Etc vs State Of Maharashtra on 13 August, 1969<\/div>\n
Equivalent citations: 1971 AIR 44, 1970 SCR (1) 821<\/div>\n
Author: G Mitter<\/div>\n
Bench: Mitter, G.K.<\/div>\n
           PETITIONER:\nHIRA H. ADVANI ETC.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT:\n13\/08\/1969\n\nBENCH:\nMITTER, G.K.\nBENCH:\nMITTER, G.K.\nSIKRI, S.M.\nHEGDE, K.S.\n\nCITATION:\n 1971 AIR   44\t\t  1970 SCR  (1) 821\n 1970 SCC  (1) 509\n\n\nACT:\n    Sea\t Customs  Act, s.  171-A--Statements  under--Whether\nsubject to s. 132<\/a> Evidence Act (1 of 1872) and Art. 20(2)<\/a> of\nConstitution  of  India,  1950--Customs\t Officer  whether  a\ncourt--Incriminating   questions  whether   permissible\t  in\nenquiry\t s. 171-A<\/a>--Effect of ss. 4<\/a>, 5<\/a> and 7<\/a> of Indian  Oaths\nAct  (10 of 1873)--Common law principles whether  applicable\nto matters covered by Evidence Act<\/a>--Copy of  premium   debit\nnote  of insurance policy--Admissibility under s. 114  (III.\n7)--Appraiser  of  customs Giving evidence as  to  value  of\ngoods  after making  enquiries\tin  market-Evidence  whether\nin admissible as hearsay.\n\n\n\nHEADNOTE:\n    The\t appellants  and  two others were  prosecuted  on  a\ncomplaint by the Assistant Collector of Customs, Bombay\t for\nthe   offence\tof  conspiracy\tand   substantive   offences\npunishable under s. 167(81) of the Sea Customs Act and s.  5\nof  the\t Imports  and Exports (Control)\t  Act,\t1947.\t The\ncomplaint was that all the accused knowingly and with intent\nto  defraud the Government of India of duty payable  on\t the\nimport\tof  goods  and\/or  to  evade  the  prohibitions\t and\nrestrictions for the time being in force under or by virtue.\nof  the\t Sea  Customs  Act and\tof  the\t Imports  &  Exports\n(Control) Act, 1947 relating to the said import entered into\na  conspiracy in Bombay and other places during\t the  period\ncommencing  from  August 1958 and August  1959\tto.  acquire\npossession of and to b.e concerned in carrying, removing and\nconcealing   and  otherwise  dealing  with  prohibited\t and\nrestricted  goods  in very large quantities of\thigh  C.I.F.\nvalue.\t The  Presidency Magistrate held in  regard  to\t the\nappellants   that   they  were parties to  a  conspiracy  as\nalleged by the prosecution and convicted them under  s.\/20-B\nIndian\t Penal\tCode<\/a>   'read  with s. 167(81)  of  the\t Sea\nCustoms\t Act and s. 5 of the Imports and  Exports  (Control)\nAct, 1947. The accused were also convicted of certain  other\ncharges\t individually  framed against them. The\t High  Court\ndismissed   the\t appeal against the order of the  Presidency\nMagistrate.    The  appellants\twere  however,\t granted   a\ncertificate  under Art. 134(1)(c)<\/a> of the Constitution.\t The\nmain  legal  question that fell for  consideration  by\tthis\nCourt  was  whether  the statements  made  by  the  accused-\nappellants before  the Customs Officer were inadmissible  in\nevidence  in view of the provisions cf s. 171-A<\/a>. of the\t Sea\nCustoms\t Act, s. 132<\/a> of the Evidence: Act and Art. 20(3)<\/a>  of\nthe  Constitution.   Questions\traised\ton  behalf  of\t the\nappellants   in\t  their\t individual  cases   regarding\t the\nadmissibility of certain items of evidence and circumstances\nagainst them also arose for consideration.\n    HELD:  (1)\tA  Customs   Officer  is  not  a  court\t and\ntherefore  statements  made before him do not  attract\t the\nprovisions of s. 132<\/a> of\t the Evidence= Act or Art. 20(3)<\/a> oil\nthe Constitution.\n    (a)\t If the Legislature intended that the inquiry  under\ns.  171-A  was to be considered a  judicial  proceeding\t not\nwithin the narrow limits therein specified but generally, it\ncould  have  used suitable words to express  its  intention.\nAlthough  this Court gave a wider meaning to the  expression\n'judicial  proceeding\"\tin  Lalji  Haridas'  ease  there  is\nnothing\t  in  that  judgment  to  warrant  a   still   wider\ninterpretation of that definition. [83\/C]\n822\n    Maqbool Hussain v. State of Bombay<\/a>,\t [1953]\t S.C.R. 730,\nThomas Dana v. State of Punjab<\/a>, [1959] Supp. 1 S.C.R.\t274,\n286    Indo-China  Steam Navigation Co. Ltd.  v.  Additional\nCollector of Customs<\/a>, [1964] 6 S.C.R. 594, referred to.\nLalji Haridas v. State of Maharashtra<\/a>, [1964] 6 S.C.R.\t700,\nconsidered.\n    (b)\t The  Oaths Act<\/a> had no application to.\tthe  present\ncase.\tThe preamble to the Act shows that it was an Act  to\nconsolidate the law relating to judicial oaths, affirmations\nand  declarations.   The argument that\t a  customs  officer\nreceived evidence within the meaning of s. 4<\/a> of the Act\t and\ntherefore  a  person appearing\tbefore him   was  a  witness\nunder  s.  5<\/a> could not be accepted.  Section 7<\/a>\tof  the\t Act\nshows  that  oaths  under the Act  had\tto  be\tadministered\naccording  to such forms as the High Court might  prescribe.\nThe  Customs  Officer have  nothing  to. do with such  forms\nand there was nothing on record to show that in the  present\ncase any oath was  administered\t to the\t person making\t the\nstatement.   In\t Maqbool Hussain's case\t this  Court  stated\nexpressly  that the Customs Officers were not authorised  to\nadminister  oath  and the position was 'not altered  by\t the\ninsertion of s. 171-A<\/a> in 1955. [832 D-E; 833 A-C]\n    Observations in Queen Empress v. Tulla<\/a>, 12 Bombay 36. 42\nand  St.  Alubvn v. Attorney-General, (1951) 2\tA.E.R.\t478,\n498, discussed.\n    (c)\t Our law of evidence which is a complete  code\tdoes\nnot  permit  the  importation of any  principle\t of  English\ncommon\tlaw  relating  to evidence in criminal cases to\t the\ncontrary.  There is no. scope for introduction of a rule  of\nevidence  in  criminal cases unless it is  within  the\tfour\ncorners of s. 132<\/a> o.r some other provision  of the  Evidence\nAct<\/a>. [834 H; 836 B-C]\n    Amba  Lal v. Union of India & Ors. [1961] 1\t S.C.R.\t 933\nand Ragina v. Benjamin Scott, 169 E.R. 909, referred to.\n    Sris Chandra Nandi v.  Rakhalananda<\/a>\t (deceased),  I.L.R.\n1941\tCalcutta 468, applied.\n    (d) The decision of\t the House  of Lords in Harz's\tcase\ndoes   not support the proposition that under s.  171-A<\/a>\t the\nright of interrogation was limited to questions the  answers\nwhere  to may not incriminate the person interrogated.\t The\nsection\t expressly   authorises\t officers  off\t customs  to\nsecure the attendance of persons to give evidence or produce\ndocuments  or things relevant in any enquiry  in  connection\nwith  smuggling\t of goods. A limit is set to  the  right  to\nobtain\tproduction in sub-s. (2) of the section and  sub.ss.\n(3)  and (4) lay down that' if a person summoned  does\t not\nstate  the truth in such an examination he may be  proceeded\nagainst under 8. 193 I.P.C<\/a>. for giving\tfalse evidence. [837\nD-E]\n    Commissioners  of Customs and Excise v. Harz.  (1867)  1\nAll.  E.R. 177, explained.\n    (e) In view of the decision\t of this Court in Nishi Kant\nv.  State  Bihar<\/a>, [1969] 2 S.C.R. 1033,\t the  argument\tthat\nstatements  of\tthe  accused under  s.\t171-A(4)<\/a>  should  be\nconsidered   only  as a whole could not\t be  accepted.\t The\ninculpatory  position of a statement can be accepted if\t the\nexculpatory  portion is found to be  inherently\t improbable.\nIn  the\t present  case the  explanations  contained  in\t the\nstatement  were\t rejected  by the courts below for 'reasons.\ngiven.\tThere  was  'no. reason for this  Court\t to  take  a\ndifferent view. [838 A-B]\n    (ii) The High Court rightly held that an office copy  of\na  premium debit note maintained by an insurance company  in\nthe usual course of its\n823\nbusiness  and attached to the office copy of  the  insurance\npolicy was admissible in evidence under s. 114 (Illustration\nf) of the Evidence: Act. No  objection could be allowed\t to.\nbe  raised  on\tthe ground that there was no  proof  of\t the\npreparation of the original premium note. [825 H]\n(iii)  The  evidence  of an appraiser of  customs  off\tlong\nexperience regarding the C.I.F. value of goods could  not be\nrejected merely on  the ground that his opinion was  arrived\nat  after making enquiries in the market and  was  therefore\nonly hearsay. His testimony as to the valuation based on his\nknowledge of the market and experience had remained unshaken\nin  cross-examination and was rightly relied on by the\tHigh\nCourt. [827 D-F]\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.86  to
\n90 of 1968.\n<\/p>\n
Appeals\t from the judgment and order dated January 13,\t1968
\nof  the\t Bombay High Court in Criminal Appeals Nos.  497  to
\n499, 516 and 500 of 1965 respectively.\n<\/p>\n
R.  Jethmalani,\t K.N. Mirchandani and  U.P. Singh,  for\t the
\nappellant (in Cr. A. No. 86 of 1968).\n<\/p>\n
Nur-ud-din  Ahmed, K.N. Mirchandani and U.P. Singh, for\t the
\nappellant (in Cr. A. No. 87 of 1968).\n<\/p>\n
    A.S.R. Chari, J.M. Mirchandani and K. Hingorani, for the
\nappellant (in Cr. A No. 88 of 1968).\n<\/p>\n
K. Hingorani, for the appellant (in Cr. A. No. 89 of 1968).
\n    N.H.  Hingorani for K. Hingorani, for the appellant\t (in
\nCr.A. 90 of 1968).\n<\/p>\n
    L.M.  Singhvi,  B.D.  Sharma and  S.P.  Nayar,  for\t the
\nrespondent (in all the appeals).\n<\/p>\n
The Judgment of the Court was delivered by
\nMitter, J. After stating the facts His Lordship proceeded :]
\nThe High Court dealt generally with the charge of conspiracy
\nagainst all the accused and individually with respect to the
\ncharges\t raised\t against  each accused\tand  considered\t the
\nexplanations given by them with regard to the  circumstances
\ntending\t to  criminal them.  Mr. Jethmalani who\t argued\t the
\ncase  of the first appellant at some length  raised  various
\nquestions  of law with regard to the admissibility  of\tthe.
\nevidence afforded by statements before the Customs  Officers
\nunder  s. 171-A<\/a>, the conclusion of the High Court  that\t his
\nclient\thad custody or possession of all the exhibits  found
\nas  a  result of the search of the premises of\tH.B.  Advani
\nBrothers on 21st July, 1950, the correctness of the  finding
\nof the High Court that Ex. F.-2 contained a complete account
\nwith regard to the consignment per s.s. Canton, the  finding
\nof   the  High\tCourt that the C.I.F.  value  of  the  goods
\nexceeded the invoice value many times over by relying on the
\nevidence  of an appraiser of the Customs department and\t the
\nabsence of any
\n824<\/span>
\novert act on the part of his client after the search on 21st
\nJuly 1959.  The argument with regard to the admissibility of
\nevidence  of the statements was adopted by counsel  for\t all
\nthe  other  accused and need not be dealt  with\t separately.
\nMr. Jethmalani virtually conceded that if his contentions on
\nthe above heads were not accepted by this Court, it would be
\nfutile\tfor him to argue that the High Court had gone  wrong
\nin  coming to the conclusion as to the. guilt of his  client
\non the strength of the evidence before it and the  inference
\nwhich could legitimately be drawn therefrom.
\n    We\tpropose\t to  deal  with\t the  other  points   before
\nexamining the contention with regard to the admissibility of
\nthe statements made in pursuance of powers exercised by\t the
\ncustoms officers under s. 171-A<\/a>.  With regard to the finding
\nof  the High Court in agreement with that of the  Magistrate
\nthat  accused  I had the custody or possession\tof  exhibits
\nExs. B to F-2, counsel argued that except those seized\tfrom
\nhis wallet the others were found in the drawer of the  table
\nof the premises searched, there was no evidence to show that
\nthe said table was the table of his client and as there\t was
\nno  proof  that\t his client had\t any  financial\t proprietary
\ninterest  in  the firm of H.B. Advani Brothers,\t  there\t was
\nnothing\t to warrant the conclusion that the  exhibits  other
\nthan’  those  in the wallet were in his custody.   The\tHigh
\nCourt dealt elaborately with this point and we do not  think
\nit  necessary  to  reexamine the same  except  to  note\t the
\ncomment made before the High Court as well as before us that
\nthe  evidence  of Mr. Dame, the panch witness who  had\tsaid
\nthat at the time of the search accused 1 was sitting at\t the
\ntable  in a drawer of which the incriminating exhibits\twere
\nfound was. unbelievable.  It was argued that inasmuch as the
\npanchnama did not record this fact Dame who gave evidence in
\n1962 should not have been believed when he claimed. to. have
\nremembered  the.  fact\tof accused 1 sitting  at  the  table
\nmentioned.  Both the courts accepted Dame’s statement and we
\nsee  no good reason to take a different view.  After all  it
\nwould not be extraordinary for any person to recollect\teven
\nafter a considerable lapse of time that when he entered\t the
\nroom  which was going to be searched, he found a  particular
\nperson seated at a certain table inasmuch as this, would  be
\nthe   very  first  thing  which\t would\tattract\t  any_body’s
\nattention.\n<\/p>\n
    With   regard  to  Ex.  F.-2  which\t according  to\t the
\nprosecution case–accepted by the courts below–contained an
\naccount\t with regard to the consignment per s.s. Canton\t the
\nprosecution case was that the figures on the left-hand\tside
\nindicated  the rates and the figures on the right-hand\tside
\nindicated  the total C.I.F. value of the goods of each\ttype
\nin  that consignment.  Before us exception was taken to\t the
\ntwo  figures  80.80 and 11.02 appearing on  the\t right\thand
\nside.\tAccording to the prosecution the figure\t 11.02\twas.
\nthe amount of insurance premium in dollars paid in
\n825<\/span>
\n  respect  of  the  consignment\t on  s.s.  Canton.   As\t the
\noriginal  which\t should\t have been with accused\t 2  was\t not
\nproduced,  a  copy of the insurance policy was\tput  in\t and
\nmarked\tas Ex. Z.-301.\tEx.Z-259-F-1 was a copy of the\tsame
\nproduced  by accused 2 before the customs officers  on\t24th
\nJuly  1959 as was borne out by the statement of\t accused  2.
\nThe  contents of the two exhibits were found to be the\tsame
\nby  both  the  courts.\t The  Claim  Superintendent  of\t the
\ninsurance company in Bombay produced the copy of the  marine
\npremium\t note  in  respect of the said\tpolicy\tshowing\t the
\namount\tof premium as $11.02 and said to have been  received
\nby  the Bombay office of the insurance\tcompany.   Objection
\nwas  raised to the admissibility of evidence of one  Martin,
\nAssistant   Manager  of New Zealand Insurance  Company\tHong
\nKong  Branch  who had joined that branch in 1963  i.e.\tlong
\nafter  the issue of the policy in 1959 although he had\tbeen
\nan employee of the said company since 1952 and claimed to be
\nfamiliar  with\tthe procedure of insurance of  export  cargo
\nfollowed  by  the company. According to\t this  witness,\t the
\ncompany used to prepare as many copies of the policy as were
\nrequired by the insurer.  A carbon copy of the original\t was
\nalways kept in the office record.  Martin produced an office
\ncopy  of the policy in respect of the  consignment  on\ts.s.
\nCanton to which was attached a marine premium debit note and
\nit was his evidence that in the usual course of business  of
\nthe  company such a debit note. was, always prepared at\t the
\ntime  when  the\t policy was issued and a  copy\tthereof\t was
\nattached  to  the copy of the policy kept  in  the  records.
\nCounsel objected to the reception of the copy of the premium
\nnote on the ground that there was, no proof of its making or
\nits  correctness.  The High Court accepted the\tevidence  of
\nMartin\tthat  the copy of the premium debit  note  had\tbeen
\nattached to the policy kept in the office record relying  on
\nthe  presumption afforded by illustration (f) to s.  114<\/a>  of
\nthe Evidence Act that the practice of the insurance  company
\nof attaching such a note to the policy had been followed  in
\nthis  particular  case.\t  In our view  the  High  Court\t was
\nentitled  to  do. so and no objection can be allowed  to  be
\nraised\ton  the\t ground\t that there was\t no.  proof  of\t the
\npreparation of that original premium note.
\nWith regard to. the figure. 80.80 counsel argued that  there
\nwas  no\t proof that this was the amount of  the\t freight  in
\ndollars\t charged  in  respect of the  consignment  per\ts.s.
\nCanton.\t Counsel argued that the freight paid was not  shown
\nin  the\t bill  of lading in this case Ex.  Z-259-G  and\t the
\nproduction  of the copies of the bill of lading Ex. M-3\t and
\nZ-142W\t on which  somebody  had written the  figure  $80.80
\ndid  not  establish the prosecution  case.Ex.  M-2  was\t the
\nManifest  of Cargo per s.s. Canton and entry No.  5  therein
\nshowed that in respect of the consignment 80.80 dollars\t had
\nbeen  paid as freight.\tThe prosecution adduced evidence  of
\nP.W. 45 Yeshwant Shankar  Keluskar of  Mackjnon
\n826<\/span>
\nMackenzie  & Co. who produced the Import   General  Manifest
\ndated\t20th  July  1959  as  also  the\t Freight   Manifest.
\nAccording to this witness on the consignment on s.s.  Canton
\n80.80\tHong Kong dollars had been paid as freight.  He\t had
\nno.  personal knowledge but made. his statement on the basis
\nof  the\t record produced from his office.   The\t prosecution
\nalso  relied  on Ex. M-3 the shipper’s copy of the  bill  of
\nlading\tproduced  before the customs officers on  24th\tJuly
\n1959  by accused 2 containing the rate at which the  freight
\nwas  charged and also the actual amount of  freight  charged
\nviz., 80.80 Hong Kong dollars.\tObjection was taken to\tthis
\ninasmuch  as the amount of the freight\tdid  not  appear  in
\nthe  bill of lading Ex. Z-259-E.  The prosecution  case\t was
\nthat  freight was paid after the preparation of the Bill  of
\nlading and just before the goods were actually put on  board
\nand  the  reasonable  explanation was  that  the  amount  of
\nfreight had been calculated subsequent to the preparation of
\nthe  bill  of  lading and endorsed thereon  as\ton  Ex.\t M-3
\nsubsequently.  According to the High Court it could be\tsaid
\nto  be a subsequent original endorsement on a copy  and\t the
\nHigh  Court relied on Ex. Z-148-W a carbon copy of the\tbill
\nof lading bearing a similar endorsement and also on the fact
\nthat  on both Ex. M-3  and Ex.\tZ-148-W the  words  “freight
\npaid”  appeared impressed by a rubber stamp in\taddition  to
\nthe calculation of freight and the actual amount of freight.
\nIn  our opinion, the High Court rightly held that  all\tthis
\nestablished  the prosecution case that the figure  80.80  in
\nEx.  F-2  indicated the freight that was actually  paid\t for
\nthe consignment on s.s. Canton.\t As Ex. M-3 was produced  by
\naccused 2 the  consignee :before the customs officer on 24th
\nJuly 1959 and contained the said endorsement the High  Court
\nwas  entitled  to  draw the  necessary\tinference  therefrom
\nsupported as it was by Ex. Z-148-W the Captain’s copy of the
\nbill of lading which bore a similar endorsement.
\n    Counsel  contended\tthat  the evidence of  P.W.  90\t the
\nappraiser of customs with regard to the C.I.F. value and the
\nmarket\tvalue  of the goods was at best hearsay\t and  should
\nhave been rejected by both the courts below.
\n    The entries relied on in this connection appear on\tEx-D
\nfound  in  the possession of accused No. 1.   There  was  no
\nevidence  to show that it was written by him.  P.W. 90\tJ.M.
\nJamedar’s  evidence  was  that\the had\tbeen  acting  as  an
\nappraiser  of customs doing valuation work for 11 years\t and
\nhad  experience in  the valuation of Japanese  rayon  goods,
\nfountain  pen  refills, Roamer ‘watches,  plastic  buttons,_
\nplaying\t  cards\t etc.\tHe  had\t taken\tsamples\t  from\t the
\nconsignments and noted the particulars thereof and had\tmade
\nthe  valuation of the goods of the consignments in  question
\nafter  making  enquiries from the market and  on  the  basis
\nthereof had stated the\tC.I.F. value at the  relevant time.\n<\/p>\n
827<\/span><\/p>\n
This   witness\thad  been  subjected  to  prolonged   cross-
\nexamination but nothing came out therein which would  enable
\nthe  court to hold that his testimony was  unreliable.\t The
\nwitness\t had  stated that the goods had been valued  by\t him
\nafter making necessary enquiries from the importers  dealing
\nin the same or similar goods supplied from foreign countries
\nas  well  as by referring to prices  offered  or  quotations
\nwhenever  available and where it was not possible to  obtain
\nthe  C.I.F. value from the market he had assessed the  value
\nof  such items to the best of his judgment  and\t experience.
\nIt was argued by counsel that as the witness was not himself
\na  party  to whom offers and acceptances had  been  made  or
\ncommunicated by others and as he did not claim to have\tbeen
\npresent when such offers and acceptances  had been made, his
\nevidence as regards the value was hearsay.  It was said that
\nat best he was a mere conduit pipe of enquiries from  others
\nand  was  not  in  the\tposition  of  an  expert.   We\tfind
\nourselves   unable  to\taccept\tthis  submission.    Jamedar
\naccording  to his unshaken testimony had been working as  an
\nappraiser  of  customs.\t for 11 years out of  his  16  year’
\nservice\t and  was  engaged in the  valuation  of  goods\t and
\nascertaining  their C.\/.F. value.  He had occasion to  value
\ngoods  which formed the subject matter of con, signments  of
\ns.s.  Canton.\tHe  claimed to have made  enquiries  in\t the
\nmarket with regard thereto. Apart from\this  own  experience
\nand  knowledge\tthe  record  shows  that  the  witness\tgave
\nevidence  as to the C.I.F. value of a very large  number  of
\narticles ‘and it should have been quite easy for the defence
\nwho  cross-examined  him at great length  to  discredit\t his
\ntestimony  by  offering evidence from the  market  that\t the
\nwitness’s estimate as to the C.I.F. value of any  particular
\nitem  was unreliable. After all what the court had to do  in
\nthis  case was to form an opinion as to. whether the  C.I.F.
\nvalue  greatly exceeded the invoice value as put forward  by
\nthe  prosecution  and Jamedar’s evidence certainly  went  to
\nshow  that  the\t C.I.F, value and the market  value  of\t the
\ncontraband  goods  imported was far in excess of  the  value
\nthereof mentioned in the invoices.\n<\/p>\n
    It\tmay  be\t mentioned  here that  the  document  Ex.  D
\nmentioned the consignments inter alia of all the three ships
\nand   the  High\t Court held that  the  document\t related  to
\nimports in which accused 2 was interested and possession  of
\nthe  document  by  accused 1 went to show that\the  too\t was
\nconcerned in such imports.\n<\/p>\n
    We\tnow come to the question as to the admissibility  of
\nthe  statements made to the customs officers under s.  171-A
\nof  the Sea Customs Act.  At the  outset it has to be  noted
\nthat  this  section came into the Statute Book in  the\tyear
\n1955  and there was nothing similar to it in the Act  before
\nsuch inclusion.\t The section’ reads:\n<\/p>\n
\t\t     “(\t 1  ) Any officer  of  Customs\tduly
\n\t      employed in the prevention of smuggling  shall
\n\t      have power to summon
\n\t      828<\/span>
\n\t      any  person  whose  attendance  he   considers
\n\t      necessary\t either\t to  give  evidence  or\t  to
\n\t      produce  a document or any other thing in\t any
\n\t      inquiry  which   such  officer  is  making  in
\n\t      connection with the smuggling of any goods.
\n\t\t    (2)\t A summons to  produce documents  or
\n\t      other things may be made for the production of
\n\t      certain  specified documents or things or\t for
\n\t      the production of all documents or things of a
\n\t      certain description in the possession or under
\n\t      the control of the person summoned.
\n\t\t    (3)\t All persons so\t summoned  shall  be
\n\t      bound  to\t attend either in person  or  by  an
\n\t      authorised agent, as, such officer may direct;
\n\t      and all persons so summoned shall be bound  to
\n\t      state  the truth upon any\t subject  respecting
\n\t      which they are examined or make statements and
\n\t      to  produce such documents an other things  as
\n\t      may be required:\n<\/p><\/blockquote>\n
\t\t    Provided   that  the   exemption   under
\n\t      section  132 of the Code of  Civil  Procedure,
\n\t      1908  shall be applicable to  any\t requisition
\n\t      for attendance under this sections.
\n\t\t    (4)\t Every\tsuch  inquiry  as  aforesaid
\n\t      shall  be deemed to be a\tjudicial  proceeding
\n\t      within the meaning of section 193<\/a> and  section
\n\t      228<\/a> of the Indian Penal Code.”\n<\/p><\/blockquote>\n
\t      In Maqbool Hussain v. The State of Bombay<\/a>\t (1)
\n\t      where  provisions of the Sea Customs Act\twere
\n\t      considered at some length by this Court before
\n\t      the amendment of 1955 by insertion of s. 171-A<\/a>
\n\t      it was said (at p. 742):\n<\/p><\/blockquote>\n
\t\t    “All this is for the enforcement of\t the
\n\t      levy  of and safeguarding the recovery of\t the
\n\t      sea   customs  duties. There is  no  procedure
\n\t      prescribed  to.  be followed  by\tthe  Customs
\n\t      Officer in the matter of such adjudication and
\n\t      the  proceedings. before the Customs  Officers
\n\t      are not assimilated in any manner whatever  to
\n\t      proceedings in courts of law according to\t the
\n\t      provisions  of  the  Civil  or  the   Criminal
\n\t      Procedure\t Code<\/a>. The Customs Officer  are\t not
\n\t      required\tto act judicially on legal  evidence
\n\t      tendered\ton oath and they are not  authorised
\n\t      to  administer  oath  to\tany  witness.\t All
\n\t      these.  provisions go to. show that  far\tfrom
\n\t      being  authorities  bound\t by  any  rules\t  of
\n\t      evidence\tor procedure established by law\t and
\n\t      invested\twith  power  to\t enforce  their\t own
\n\t      judgments\t  or   orders\tthe   Sea    Customs
\n\t      Authorities     are     merely\t constituted
\n\t      administrative  machinery for the\t purpose  of
\n\t      adjudging\t confiscation,\tincreased  rates  of
\n\t      duty and penalty prescribed in the Act.
\n\t      (1) [1953] S.C.R. 730.\n<\/p><\/blockquote>\n
\t      829<\/span><\/p>\n
\t\t    We\tare.  of the opinion  that  the\t Sea
\n\t      Customs\tAuthorities  are  not\ta   judicial
\n\t      tribunal\tand the adjudging  of  confiscation,
\n\t      increased\t rate of duty or penalty  under\t the
\n\t      provisions  of  the  Sea Customs\tAct  do\t not
\n\t      constitute  a judgment or order of a court  or
\n\t      judicial\ttribunal necessary for the.  purpose
\n\t      of supporting a plea of double jeopardy.”
\n\t      The  Court in that case was dealing  with\t the
\n\t      question as  to  whether\t an    order   of
\n\t      confiscation  was a punishment inflicted by  a
\n\t      court  or\t a  judicial  tribunal\twithin\t the
\n\t      meaning of Art. 20 (2)<\/a> of the Constitution.
\n\t\t  In  Thomas Dana v. The State of  Punjab<\/a>(1)
\n\t      the provisions of the Sea\t Customs  Act\twere
\n\t      examined\tagain and referring to s.  187-A<\/a>  it
\n\t      was said:\n<\/p><\/blockquote>\n
\t\t    “This  section makes it clear  that\t the
\n\t      Chief  Customs  Officer or any  other  officer
\n\t      lower  in\t rank  than  him,  in  the   Customs
\n\t      department,  is  not a “court”, and  that\t the
\n\t      offence  punishable  under  item\t81  of\t the
\n\t      Schedule to s. 167<\/a>, cannot be taken cognizance
\n\t      of  by any court, except upon a  complaint  in
\n\t      writing, made. as prescribed in that section.”
\n\t      With  regard to the use of the word  ‘offence’
\n\t      indiscriminately all over the Act it was said:
\n\t\t     “All  criminal offences  are  offences,
\n\t      but all offences. in the sense of infringement
\n\t      of a law, are not criminal offences  but\twhen
\n\t      a\t trial on a charge of a criminal offence  in
\n\t      intended under ‘any one of the entries of\t the
\n\t      Schedule\t aforesaid,    it   is.\t  only\t the
\n\t      Magistrate   having   jurisdiction,   who\t  is
\n\t      empowered to impose a sentence of imprisonment
\n\t      or fine or both.”\n<\/p><\/blockquote>\n
It  was argued before us that the position  became  entirely
\ndifferent as a result of the inclusion of s. 171-A<\/a> as sub-s.
\n(4)  of the section went to show that an enquiry by  customs
\nauthorities wherein statements of persons were recorded\t was
\n“to be deemed to be a judicial proceeding within the meaning
\nof  s.\t193<\/a> and s. 228<\/a> of the Indian Penal  Code.”   Counsel
\nargued\tthat such proceeding was a judicial proceeding\talso
\nfor  the other purposes thus attracting the operation of  s.
\n132<\/a>  of\t the Evidence Act. Apart from the point as  to\tnon-
\nexercise  of claim of privilege (about which we\t express  no
\nopinion)  there can be no question that if the said  section
\nof the Evidence Act<\/a> is to be attracted to such a  proceeding
\nstatements  made  by him in any such inquiry  could  not  be
\nproved against him in the criminal proceedings launched.  It
\nwas
\n(1) [1959] Supp. 1 S.C.R. 274 at 286.\n<\/p>\n
830<\/span><\/p>\n
argued\tthat  sub-s. (3) of s. 171-A<\/a>  made it obligatory  on
\nthe  persons  summoned to state the truth upon\tany  subject
\nrespecting  which he was examined and if the proceeding\t was
\njudicial  proceeding  there  was  nothing  to.\texclude\t the
\napplicability  of s. 132<\/a>. Our attention was drawn to s.1  of
\nthe Indian Evidence Act<\/a> which made the Statute applicable to
\nall judicial proceedings in or before any court in the whole
\nof  India.   As\t ‘court’ in s. 3<\/a> included  all\tJudges\t and
\nMagistrates   and  all persons, except arbitrators,  legally
\nauthorised  to. take evidence, it was contended\t  that\t the
\ncustoms\t officers   being  authorised  by s. 171<\/a>.-A  of\t the
\nSea  Customs  Act<\/a> were ‘courts’ within the  meaning  of\t the
\ndefinition  of\ts.  3.\tReference may also be  made  to\t the
\ndefinition  of\t‘evidence’ in the said section\twhich  shows
\nthat the word means and includes  inter alia  all statements
\nwhich  the court permits or requires to be made before it by
\nwitnesses, in relation to matters of fact under inquiry.
\n    Reference.\twas.  also made to s. 4(1)<\/a> of  the  Code  of
\nCriminal  Procedure,  1898 under which\t‘investigation’\t for
\npurposes  of the Code<\/a> includes all the proceedings under the
\nCode<\/a>  for the collection of evidence conducted by  a  police
\nofficer\t or by any person (other than a Magistrate) who.  is
\nauthorised  by\ta Magistrate\ttiffs behalf;  and  cl.\t (m)
\nwhich\tdefines\t “judicial  proceeding”\t as  including\t any
\nproceeding  in\tthe course of which evidence is\t or  may  be
\nlegally\t  taken\t on oath.  Counsel relied strongly   on\t the
\njudgment  of  this  Court  in Lalji  Haridas  v.   State  of
\nMaharashtra<\/a>(1)\twhere this Court had to consider whether  an
\nIncome-tax  Officer  exercising powers under s.\t 37<\/a>  of\t the
\nIncome-tax Act, 1922 was a ‘ court’ within the meaning of s.
\n195<\/a>  (1)  (b) of the Code<\/a> of Criminal Procedure\t making\t the
\nsanction thereunder obligatory for the filing of a complaint
\nin  respect  of an  offence alleged to have  been  committed
\nunder s. 193<\/a> of the Penal Code. Sub-ss. (1) to (3) of s.  37<\/a>
\nof the Income-tax Act were worded somewhat differently\tfrom
\nthose  of sub ss. (1) to (3) of s. 171-A of the Sea  Customs
\nAct.  The words in sub-s. (4) of s. 37<\/a> are for all practical
\npurposes  identical with those. used in s. 171-A<\/a> (4).  There
\nthis  Court  by a majority of three to two were\t of  opinion
\nthat  the  proceedings before the  Income-tax  Officer\twere
\njudicial  proceedings  not only under s. 193<\/a> of\t the  Indian
\nPenal Code but were also. to. be treated as proceedings.  in
\nany  court for the purpose of s. 195<\/a> (1) (b) of the Code<\/a>  of
\nCriminal  Procedure.   The majority Judges referred  to\t the
\nsections in the Indian Penal Code<\/a> and the Criminal Procedure
\nCode<\/a> mentioned above and to provisions in various other Acts
\nwherein the legislature had expressly mentioned that s.\t 195<\/a>
\nCr.   P.C.  would  apply  to  proceedings   before   diverse
\nauthorities  and accepted the argument that reading  s.\t 193<\/a>
\nI.P.C.\tand  s. 195<\/a> (1) (b) Cr. P.C. together  it  would  be
\nreason-\n<\/p>\n
(1) [1964] 6 S.C.R. 700.\n<\/p>\n
831<\/span><\/p>\n
able  to hold that proceedings which are judicial under\t the
\nformer\tshould be taken to be proceedings under the  latter.
\nAccording to the minority Judges although the word ‘judicial
\nproceeding’ was wide enough to. include not only proceedings
\nbe,fore\t a ‘court’ but proceedings before certain  tribunals
\nit  was\t clear from a decision of this Court  in  Indo-China
\nSteam Navigation Co., Ltd.  v.\tThe Additional Collector  of
\nCustoms<\/a>(1)  that  a  Customs Officer “was  not\ta  court  or
\nTribunal”  and s. 37(4)<\/a> of the Income-tax Act should not  be
\ngiven  a meaning different to that given in s. 171-A(4)<\/a>\t of’
\nthe Sea Customs Act.”\n<\/p>\n
    In our view if the Legislature intended that the inquiry
\nunder  s. 171-A<\/a> was to. be considered a judicial  proceeding
\nnot   within  the  narrow  limits  therein   specified\t but
\ngenerally, it could have used suitable words. to express its
\nintention.   Although this Court gave a wider meaning to the
\nexpression ‘judicial proceeding’ in Lalji Haridas’s  case(2)
\nthere  is nothing in that judgment to warrant a still  wider
\ninterpretation of that definition.\n<\/p>\n
    Mr. Jethmalani referred to the provisions in the  Indian
\nOaths Act<\/a> (X of 1873) and on the basis of his argument\tthat
\nthe  statements\t under\ts.  171-A  (4)\twere  made  on\toath
\ncontended that the proceeding became a judicial\t  proceeding
\nin the wider sense of the word.\t In our view the Oaths\t Act<\/a>
\nhas no application here. The preamble to the Act shows\tthat
\nit  was an Act to consolidate the law relating\tto  judicial
\noaths, affirmations and declarations and was enacted because
\nthe  Legislature thought that it “expedient  to\t consolidate
\nthe  law  relating  to\tjudicial  oaths,  affirmations\t and
\ndeclarations  and  to repeal the law  relating\tto  official
\noaths, affirmations and declarations.”\tSection 4<\/a> of the Act
\nprovided that:\n<\/p>\n
\t\t    “The  following Courts and\tpersons\t are
\n\t      authorised to administer, by themselves or  by
\n\t      an  officer empowered by them in this  behalf,
\n\t      oaths  and  affirmations in discharge  of\t the
\n\t      duties   or in exercise of the powers  imposed
\n\t      or conferred upon them respectively by law:\n<\/p><\/blockquote>\n
\t\t     (a)  all Courts and persons  having  by
\n\t      law or consent of parties authority to receive
\n\t      evidence :”\n<\/p><\/blockquote>\n
\t      The relevant portion of s. 5<\/a> runs–
\n\t\t     “Oaths or affirmations shall be made by
\n\t      the following persons :-\n<\/p><\/blockquote>\n
\t\t     (a) all witnesses, that is to say,\t all
\n\t      persons  who may lawfully be examined or\tgive
\n\t      or be required to give, evidence by or  before
\n\t      any  Court or person having by law or  consent
\n\t      of  parties authority to examine such  persons
\n\t      and to receive evidence :”\n<\/p><\/blockquote>\n
(1) [1964] 6 S.C.R. 594.      (2) [1964] 6 S.C.R. 700.
\nSupCI\/69–9
\n832<\/span>
\n    Counsel  argued  that a Customs Officer was a person who
\nhad authority by law to receive evidence within the  meaning
\nof  s. 4<\/a> of the Oaths Act and anybody who could be  lawfully
\nexamined before such a person would be a witness within\t the
\nmeaning\t of  s.\t 5<\/a> and as such it  would  be.  necessary  to
\nadminister oath to them.  in our view, the argument proceeds
\non  a complete misconception of the provisions of  the\tAct.
\nThe preamble to the Act shows that the oaths referred to are
\nonly judicial oaths and section 7<\/a> shows that all such  oaths
\nhad  to be administered according to such forms as the\tHigh
\nCourt might prescribe. The Customs Officers have nothing  to
\ndo  with  such farms and nothing has been shown to  us\tthat
\n‘any such formality was ever complied with.  Neither do\t the
\nrecords\t show that any oath was administered to\t any  person
\nmaking\ta  statement under s.  171-A<\/a>.  In Maqbool  Hussain’s
\ncase(1)\t this\tCourt  stated  expressly  that\tthe  Customs
\nOfficers  were\tnot authorised to administer  oath  and\t the
\nposition according to us is not altered by the insertion  of
\ns. 171-A in 1955.\n<\/p>\n
    Mr.\t Jethmalani  referred us to the\t decision  in  Queen
\nEmpress v. Tulja<\/a>(2) and to certain observations of West,  J.
\nin that\t case. There it was held that a Sub-Registrar  under
\nthe  Registration  Act<\/a> (111 of 1877) was not a\tJudge,\tand,
\ntherefore, was not a ‘Court’ within the meaning of s. 195<\/a> of
\nthe Code of Criminal Procedure and as such  his sanction was
\nnot necessary for a  prosecution for forgery in respect of a
\nforged\tdocument presented for registration in\this  office.
\nWest, J. had however, observed that:\n<\/p>\n
\t\t    “An inquiry is judicial if the object of
\n\t      it  is to determine a jural  relation  between
\n\t      one person and another, or a group of persons;
\n\t      between him and the community generally;\tbut,
\n\t      even  a judge, acting  without such an  object
\n\t      in view, is not acting judicially.”\n<\/p><\/blockquote>\n
Relying\t on this observation counsel argued that the  object
\nof  an inquiry under s. 171-A<\/a> was to find out and  establish
\nthe jural liability of the persons  making  the\t  statement,
\nviz.,\twhether he had committed an offence or not,  and  as
\nsuch  the  inquiry was a judicial proceeding.  In  our\tview
\nthe  argument  is  not worthy of acceptance.  At  the  stage
\nenvisaged by s. 171-A<\/a>  a Customs Officer is given the  power
\nto  interrogate any person in connection with the  smuggling
\nof  any\t  goods\t which it is his duty to  prevent.   Such  a
\nperson\tmay  have nothing to do with the  smuggling  of\t any
\ngoods  although he may know where such goods are or who\t has
\nor  had\t them.\tSub-s. (3) of s. 171-A<\/a> does not\t compel\t any
\nperson\tto make a statement but if he makes a  statement  he
\nhas  to state the truth so as to avoid punishment  under  s.
\n193<\/a> I.P.C.  At that stage nothing may be  known\t as (1)
\n(1) [1953] S.C.R. 730.\t\t  (2) 12 Bombay 36 at 42.\n<\/p>\n
833<\/span><\/p>\n
0 whether an offence has been committed or who has committed
\nt and the person interrogated at that stage certainly is not
\na  person  accused  of or charged with an  offence.   He  is
\nmerely\tcalled\tupon  to give  evidence\t to  facilitate\t the
\ninquiry.  He is not a witness giving evidence in a court and
\nhis testimony will make him liable under s. 193<\/a> I.P.C.\tonly
\nbecause of the express provision of law in sub.-s. (4) of s.
\n171-A<\/a>.\n<\/p>\n
    Counsel also argued that as a Customs Officer  according
\nto all the decisions of this Court already mentioned, is  to
\nact  judicially, a proceeding for recording evidence  before
\nhim  was  a judicial proceeding.  This\twholly\twithout\t any
\nforce  because\teven  administrative officers  have  to\t act
\njudicially.    Counsel\t further  argued  that\t a   deeming
\nprovision in a statute was not necessarily designed to\tgive
\nan  artificial\tconstruction to a word or a  phrase  but  it
\nmight  be used for other purposes also.\t He referred to\t the
\ncase of St. Aubyn v. Attorney-General(1) where it was said:\n<\/p>\n
\t\t    The\t word “deemed” is used a great\tdeal
\n\t      in modern legislation.  Sometimes\t it is\tused
\n\t      to  impose  for the purpose of  a\t statute  an
\n\t      artificial  construction for a word or  phrase
\n\t      that  would not otherwise prevail.   Sometimes
\n\t      it  is used to put beyond doubt  a  particular
\n\t      construction   that   might    otherwise\t  be
\n\t      uncertain.   Sometimes  it is used to  give  a
\n\t      comprehensive  description that includes\twhat
\n\t      is obvious, what is uncertain and what is,  in
\n\t      the ordinary sense, impossible.”\n<\/p><\/blockquote>\n
It was argued that the Legislature might well have used\t the
\nword  “deemed” in sub-s. (4) of s. 171<\/a> not in the  first  of
\nthe  above senses but in the second, if not the\t third.\t  In
\nour  view  the meaning to be attached to the  word  “deemed”
\nmust  depend upon the context in which it is used. In  Lalji
\nHaridas’s  case(2)  this  Court went  elaborately  into\t the
\nquestion  as to the extent of this deeming  provision  which
\nwould  have been wholly redundant if  the word\t‘deemed’  in
\nsection 171-A(4)<\/a> was used in any sense other than to give an
\nartificial   construction.    The  second  branch   of\t Mr.
\nJethmalani’s argument under this head was that the principle
\nunderlying  s.\t132<\/a> of the Evidence Act was a  principle  of
\nCommon Law well known to criminal jurisprudence and as\tsuch
\nwas  applicable even if s. 132<\/a> in terms was  not  attracted.
\nIn  this connection, he referred us to certain\tobservations
\nof Subbarao, J. (as he then was) in Amba Lal v. The Union of
\nIndia and Others<\/a>(3) where in his dissenting judgment on\t the
\ninterpretation of ss. 168<\/a> and 171-A<\/a> of the Act his  Lordship
\nhad observed that:\n<\/p>\n
\t\t     “To   such\t a  situation,\tthough\t the
\n\t      provisions  of the Code<\/a> of Criminal  Procedure
\n\t      or the Evidence Act<\/a> may
\n\t\t(1) [1951] 2 A.E.R. 473 at 498.\n<\/p><\/blockquote>\n
\t       (2) [1964] 6 S.C.R. 700.\n<\/p><\/blockquote>\n
\t       (3) [1961] 1 S.C.R. 933.\n<\/p><\/blockquote>\n
\t      834<\/span><\/p>\n
\t\t     apply  except  in so far  as  they\t are
\n\t      statutorily  made applicable, the\t fundamental
\n\t      principles  of criminal jurisprudence  and  of
\n\t      natural justice must necessarily apply.”
\n\t      Counsel  also referred us to the\tdecision  in
\n\t      Regina  v.  Benjamin Scott(1).   The  question
\n\t      before the court in that case was whether\t the
\n\t      answers to the questions put to the defend,ant
\n\t      before the court of bankruptcy relating to his
\n\t      trade  dealings and estate tending disclose  a
\n\t      fraud  of\t concealment  of  his  property\t was
\n\t      admissible evidence against  him on indictment
\n\t      charging\t him with altering,  mutilating\t and
\n\t      falsifying  his books with intent\t to  defraud
\n\t      his  creditors.  The examination was taken  in
\n\t      conformity  with\ts. 117 of the  Bankrupt\t Law
\n\t      Consolidation  Act  (12 and 13 Vict.  c.\t106)
\n\t      which enacted that a bankrupt may be  examined
\n\t      by the court “touching all matters relating to
\n\t      his  trade, dealings or estate, or  which\t may
\n\t      tend to disclose any secret grant,  conveyance
\n\t      or  concernment of his lands etc.”  There\t was
\n\t      no   dispute  that  the  questions  put\twere
\n\t      relevant\tas touching matters relating to\t his
\n\t      trade etc.  Delivering judgment in which three
\n\t      other  Judges concurred, Lord  Campbell,\tC.J.
\n\t      held that the  defendant\twas bound to  answer
\n\t      the questions although by his answers he might
\n\t      criminal\thimself.  According to\tthe  learned
\n\t      Chief Justice:\n<\/p><\/blockquote>\n
\t\t    ”\t….   and  we\tthink  it  would  be
\n\t      contravention  of the expressed intentions  of
\n\t      the  legislature\tto permit  the\tbankrupt  to
\n\t      refuse  to  answer such  questions;  for\teven
\n\t      since   the  reign  of  Elizabeth\t  successive
\n\t      statutes\t have  been  passed,  purporting  to
\n\t      guard  against  frauds  in bankruptcy and\t the
\n\t      bankrupt,\t  when\t called\t upon\t to   answer
\n\t      questions\t   respecting\this    estate\t and
\n\t      effects,\tshould\tnot  be\t allowed  to   avail
\n\t      himself of the common law maxim “nomo  tenetur
\n\t      se ipsum accusare.”\n<\/p><\/blockquote>\n
\t      With  regard  to the maxim relied\t on  by\t the
\n\t      defendant’s counsel he said:\n<\/p><\/blockquote>\n
\t\t   “But\t  Parliament  may  take\t away\tthis
\n\t      privilege,   and\tenact that a  party  may  be
\n\t      bound  to\t accuse\t himself, that is,  that  he
\n\t      must  answer questions by\t answering which  he
\n\t      may be criminated.”\n<\/p><\/blockquote>\n
He  further held that the maxim could not be treated  as  an
\nimplied proviso to be subjoined to the 117th section.
\nMr.  Jethmalani however\t relied on certain observations\t  of
\nColeridge,  1. in his dissenting judgment.  In our view\t the
\nmaxim  of  the English Common Law can  have  no\t application
\nhere.  Our law of evidence which is a complete Code does not
\npermit\tthe importation of any principle of  English  Common
\nLaw relating
\n(1) 169 English Reports page 909.\n<\/p>\n
835<\/span><\/p>\n
    evidence  in criminal cases to the contrary.  Section  2<\/a>
\nof  the\t Indian\t Evidence  Act\tbefore\tits  repeal  by\t the
\nRepealing Act<\/a> (1) of 1938) provided as follows:\n<\/p>\n
\t\t    “2.\t On and from that day 1st  September
\n\t      1872) the following laws shall be repealed;
\n\t\t    (1 ) All rules of evidence not contained
\n\t      in any statute, Act or Regulation in force  in
\n\t      any part of British India;\n<\/p><\/blockquote>\n
\t\t    (2) All such rules, laws and regulations
\n\t      as  have acquired the force of law  under\t the
\n\t      25th  section  of the  ‘Indian  Councils\tAct<\/a>,
\n\t      1861′  in so far as they relate to any  matter
\n\t      herein provide.d for; and
\n\t\t    (3\t)  The enactments mentioned  in\t the
\n\t      schedule\thereto, to the extent  specified  in
\n\t      the third\t column in the said schedule.
\n\t\t    But\t nothing herein contained  shall  be
\n\t      deemed to affect any provision of any Statute,
\n\t      Act  or  Regulation in force in  any  part  of
\n\t      British\tIndia  and  not\t  hereby   expressly
\n\t      repealed.”\n<\/p><\/blockquote>\n
\t      We  may usefully refer to the judgment of\t the
\n\t      Privy   Council  in  Sris\t Chandra  Nandi\t  v.
\n\t      Rakhalananda<\/a> (deceased)(1) where the  Judicial
\n\t      Committee approved of the statement of the law
\n\t      contained\t in the judgment of the\t High  Court
\n\t      reading:\n<\/p><\/blockquote>\n
\t\t    “It is to be noticed in this  connection
\n\t      that  s.\t2<\/a>( 1 ) of the  Indian  Evidence\t Act<\/a>
\n\t      repeals the whole of the English common law on
\n\t      evidence so far as it was in force in  British
\n\t      India   before  the  passing  of\tthe   Indian
\n\t      Evidence Act<\/a>, and that provision of the law in
\n\t      effect  prohibits the employment of any\tkind
\n\t      of  evidence  not specifically  authorised  by
\n\t      the Act itself.”\n<\/p><\/blockquote>\n
\t      Lord  Atkin who delivered the judgment of\t the
\n\t      Judicial\tCommittee pointed out that  evidence
\n\t      which  was  not admissible  under\t the  Indian
\n\t      Evidence\tAct<\/a>  could  not be let\tin  for\t the
\n\t      purpose of bringing out the truth and said:
\n\t\t    “What   matters  should  be\t  given\t  in
\n\t      evidence as essential for the ascertainment of
\n\t      truth,  it  is  the  purpose  of\tthe  law  of
\n\t      evidence, whether at common law or by  statute
\n\t      to  define.  Once a statute is  passed,  which
\n\t      purports\tto  contain  the whole\tlaw,  it  is
\n\t      imperative.  It  is not open to any  Judge  to
\n\t      exercise\t a  dispensing\tpower,\t and   admit
\n\t      evidence not admissible by  statute,   because
\n\t      to him it appears that the irregular  evidence
\n\t      would throw light
\n\t      (1) I.L.R. [1941] 1 Calcutta, 468.\n<\/p><\/blockquote>\n
\t      836<\/span><\/p>\n
\t      upon  the\t issue.\t  The  rules  of   evidence,
\n\t      whether contained in a statute or not, are the
\n\t      result  of long experience, choosing no  doubt
\n\t      to  confine evidence to particular forms,\t and
\n\t      therefore\t eliminating  others  which  it\t  is
\n\t      conceivable   might  assist  in  arriving\t  at
\n\t      truth.”\n<\/p><\/blockquote>\n
The question there related to the admissibility of  evidence
\nwhich  according to the Judicial Committee should  not\thave
\nbeen  adduced. The question before us is somewhat  different
\nbut if the Indian Evidence Act<\/a> is ‘a complete Code repealing
\nall rules of evidence not to be found therein, there is,  in
\nour opinion, no scope for introduction of a rule of evidence
\nin criminal cases unless it is within the four corners of s.
\n132<\/a> or some other provision of the Evidence Act<\/a>. As the\t Act<\/a>
\ndoes  not  apply  to interrogations  by\t a  Customs  Officer
\nexercising  powers under s. 171-A of the Sea Customs Act  s.
\n132<\/a> of the Evidence Act cannot be attracted.
\n    Lastly it was contended that s. 171-A<\/a> did not  authorise
\ninterrogation  of a subject to extract admissions  from\t him
\nwhich could be used against him on a future occasion. In aid
\nof this proposition reliance was placed on a decision of the
\nHouse  of  Lords in Commissioners of Customs and  Excise  v.
\nHarz(1).   The main question there was whether\tthe  answers
\ngiven  by the respondents in the course of interrogation  by
\nCustoms\t Officer were admissible in evidence. The power\t to.
\ninterrogate  was  said to be derived from the  Finance\tAct<\/a>,
\n1946,  s.  20<\/a> (3 ) which provided in  substance\t that  every
\nperson\tconcerned with the purchase or importation of  goods
\netc. shah furnish to the commissioners within such time\t and
\nin such form as they may require information relating to the
\ngoods  or to the purchase or importation thereof  etc.,\t and
\nshall  upon  demand  made by any officer  or  other  persons
\nauthorised in that behalf by the commissioners produce\tany.
\nbooks  or  accounts or other documents\tof  whatever  nature
\nrelating  thereto for inspection by that officer or  person.
\nOn  a  construction of that provision Lord Reid was  of\t the
\nview  that there was. nothing therein to require the  trader
\nto  give answers which might incriminate him.  His  Lordship
\nalso observed that the section gave the officer no right  to
\nsubmit\tthe respondents to prolonged interrogation they\t had
\nto.  undergo  and  the\trespondents  could  not\t have\tbeen
\nprosecuted  if\tthey had refused to  answer.   His  Lordship
\nobserved  that\tthe right of the  CommiSsioners\t to  require
\ninformation was quite different and said:\n<\/p>\n
\t\t   “If\ta demand for information is made  in
\n\t      the  proper  manner  the trader  is  bound  to
\n\t      answer  the demand within the time and in\t the
\n\t      form  required whether or not the\t answer\t may
\n\t      tend  to incriminate him, and if he  fails  to
\n\t      comply  with the demand he can be\t prosecuted.
\n\t      If he
\n\t      (1) [1967] 1 All. E.R. 177.\n<\/p><\/blockquote>\n
\t      837<\/span><\/p>\n
\t      answers falsely he can be prosecuted for that,
\n\t      and,  if\the answers in such a  manner  as  to
\n\t      incriminate  himself, I can see no reason\t why
\n\t      his  answer  should not be used  against\thim.\n<\/p><\/blockquote>\n
\t      Some    statutes\t expressly   provide\tthat
\n\t      incriminating answers may be used against\t the
\n\t      person  who  gives  them\tand  some   statutes
\n\t      expressly provide that they may not. Where, as
\n\t      here,  there is no such express provision\t the
\n\t      question\twhether such answers are  admissible
\n\t      evidence\t  must\t depend\t  on   the    proper
\n\t      construction   of\t the   particular   statute.
\n\t      Although 1 need not decide the point, it seems
\n\t      to   me\tto   be\t  reasonably   clear\tthat
\n\t      incriminating answers to a proper demand under
\n\t      this   section  must  be\tadmissible  if\t the
\n\t      statutory provision is to achieve its  obvious
\n\t      purpose.”\n<\/p><\/blockquote>\n
Prima  facie these provisions,are against the contention  of
\nthe  appellant.\t In that case the House of Lords  in  effect
\nheld  that  the\t provision  of\tlaw  did  not  entitle\t the
\nCommissioners  “to  send a representative  to  confront\t the
\ntrader, put questions to him orally and demand oral  answers
\non  the\t spot; and  that it does not entitle  them  to\tsend
\ntheir  representative to subject the trader to\ta  prolonged
\ninterrogation  in  the nature of a  cross-examination.”\t The
\nprovisions  of\ts.  171-A  are\tin  sharp  contrast  to\t the
\nprovision  of  law  before the House  of  Lords.   Here\t the
\nstatute\t expressly authorises officers of customs to  secure
\nthe  attendance\t of  persons to\t give  evidence\t or  produce
\ndocuments  or things relevant in any enquiry  in  connection
\nwith the smuggling of goods. A limit is set to the right  to
\nobtain\tproduction  in sub-section (2) of  the\tsection\t and
\nsubsections  (3) and (4) lay down that if a person  summoned
\ndoes  not state the truth in such an examination he  may  be
\nproceeded  against  under  s. 193<\/a> I.P.C.  for  giving  false
\nevidence.\n<\/p>\n
    Counsel also drew our attention to the new sections\t 107<\/a>
\nand 108<\/a> of the Customs Act, 1962 where the power to, examine
\npersons\t has  been given to all officers of customs  by\t the
\nfirst  of  the\tabove mentioned sections and  the  power  to
\nsummon persons to give evidence and produce documents as  in
\ns. 171-A is given to a gazetted officer of customs under  s.
\n108<\/a>  of\t the  new  Act.\t In our\t view,\tthis  difference  is
\nimmaterial for the purpose of this case and there is nothing
\nin  s.\t171-A<\/a>  which limits the right  of  interrogation  to
\nquestions the answers whereto may not incriminate the person
\ninterrogated.\n<\/p>\n
    The High Court considered at some length the question as
\nto  whether the statement of the accused under\ts.  171-A(4)
\nshould be considered as a whole or whether reliance could be
\nplaced\tupon  portions thereof rejecting the  rest.  It\t was
\nargued before the High Court that inasmuch as the statements
\nwere sought to be relied
\n838<\/span>
\nupon  as  a  confession the court was  bound  to  take\tinto
\naccount not only the portions containing admissions but also
\nthe explanations which followed.  The High Court held that a
\nstatement  under  s.  171-A<\/a>  did not stand  at\tpar  with  a
\nconfession so that it had to be taken as a whole or rejected
\nas a whole.  Even with regard to the statements portions  of
\nwhich  are inculpatory against the maker and other  portions
\nwhich are not, it has been held in a recent decision of this
\nCourt  that the inculpatory portion can be accepted  if\t the
\nexculpatory    portion\t is   found   to    be\t  inherently
\nimprobable–vide  Nishi Kant v. State of Bihar<\/a>(1).  In\tthis
\ncase  the  explanations\t contained in  the  statements\twere
\nconsidered  by the courts below and for reasons\t given\tthey
\nthought fit to reject the same and we see no reason to\tcome
\nto a different view.\n<\/p>\n
    [The Court then considered the case of the other accused
\nand held :]
\n    The net result is that all the appeals excepting that of
\naccused\t No.  3, Meghraj Gopaldas Jham fail and\t are  hereby
\ndismissed. Meghraj Gopaldas Jham’s appeal is allowed and  he
\nis set at liberty. His bail bond will be cancelled.
\nG.C.\n<\/p>\n
(1) [1969] 2 S.C.R. 1033.\n<\/p>\n
839<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hira H. Advani Etc vs State Of Maharashtra on 13 August, 1969 Equivalent citations: 1971 AIR 44, 1970 SCR (1) 821 Author: G Mitter Bench: Mitter, G.K. 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-254162","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHira H. 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