Illias Vs. Collector of Customs,
Madras [1968] INSC 266 (31 October 1968)
31/10/1968 GROVER, A.N.
GROVER, A.N.
SHAH, J.C.
RAMASWAMI, V.
MITTER, G.K.
HEGDE, K.S.
CITATION: 1970 AIR 1065 1969 SCR (2) 613
CITATOR INFO :
R 1971 SC1087 (15) RF 1981 SC 379 (51) C 1991
SC 45 (16) D 1992 SC1795 (4,7)
ACT:
Evidence Act (1 of 1872), s. 25--Police
officer--If customs officials under Customs Act 52 of 1962 are police
officers--Test for determining.
HEADNOTE:
The appellant along with others was charged
with various offences relating to transport of gold. Their confessional
statements recorded by customs authorities under ss. 107 and 108 were sought to
be given in evidence at the trial. On the question, whether the customs
authorities should be deemed to be police officers, and therefore, the
statements were inadmissible by reason of s. 25 of the Evidence Act,
HELD: Under Customs Act, 1962, the customs
authorities have been invested with many powers of a police officer in matters
relating to arrest, investigation and search, which the customs officers did
not have under the repealed Act namely, the Sea Customs Act, 1878. For example,
under s.
104(3) after arrest, the customs officer has
the power of releasing the arrested person on bail and for that purpose has the
same powers as an officer in charge of a police station. Under s. 107 a customs
officer empowered by the Collector of Customs can require any person to produce
any document, which power is similar to those exercisable by 'a police officer
under ss. 160 and 161, Cr. P.C. Under s. 105, if the Assistant Collector of
Customs has reason to believe that any goods liable to confiscation are
secreted in any place he may authorise any customs officers or may himself
search for the goods. But, customs officers have not been invested with all the
powers which an officer in charge of a police station can exercise under Chapter
XV, Cr. P.C. The powers conferred do not include the power of submitting a
charge sheet under s. 173, Cr. P.C., either expressly or by necessary
implication. Therefore, in order to enable a magistrate to take cognizance of
an offence under the Customs Act, (the offences under the Act are non-
cognizable), the customs officer will have to file a complaint before the
magistrate under s. 190(a), Cr. P.C., and cannot like a police officer submit a
report under s.
190(b). Hence even though the customs
officers have been invested with many of the powers which an officer in charge
of a police station exercises when investigating a cognizable offence he does
not thereby become a police officer within the meaning of s. 25 of the Evidence
Act and so the confessional statements made by accused persons to customs
officials would be admissible in evidence against them. [617 C--D; 618 B-C.
F-G; 621 C--D; 622 C--D] Romesh Chandra Mehta v. State of West Bengal. [1969] 2
S.C.R. 461 and Dad. v Adarji Fatakia v.K.K. Ganguly, Astt.
Collector of Customs & Anr., Cr. A. No.
46 of 1968 dated October 18, 1968, followed.
State of Punjab v. Barkat Ram, [1962] 3
S.C.R. 338, Raja Ram faiswal v. State of Bihar, [1964] 2 S.C.R. 752.
Badku Joti Savant v. State of Mysore, [1966]
3 S.C.R. 698 and P. Shankar Lal & Ors. v. Asstt. Collector of Customs,
Madras, Cr. As. Nos. 52 & 104/65 dated 12-12-1967.
referred to.
614
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.45 of 1967.
Appeal by special leave from the judgment and
order dated September 9, 1966 of the Madras High Court in Criminal Revision
Petition 1350 of 1965.
N.H. Hingorani, R. Jethamalani and K.
Hingorani, for the appellant.
Niren De, Solicitor-General, N.S. Bindra,
R.H. Dhebar and S.P. Nayar, for the respondent.
K.R. Chaudhuri and K. Rajendra Chaudhuri, for
the intervener.
The Judgment of the Court was delivered by
(Grover, J. The main point in this appeal, by special leave, is whether the
statements of the appellant and other accused persons recorded by the customs
authorities under the provisions of the Customs Act 1962 (Act 52 of 1962),
hereinafter called the "New Act", were admissible in evidence at
their trial for the alleged offences under s.
120B of the Indian Penal Code read with s.
135 of the new Act and ss, 23 (IA) and 23B of the Foreign Exchange Regulation
Act 1947 and under Rule 131-B of the Derrace of India Rules.
The facts need not be stated in great detail.
A complaint was laid by the Collector of Customs, Madras, against to persons
for having committed the above offences.
The complaint related to an occurrence which
involved transport of 750 bars of gold each weighing 10 tolls valued at more
than 7 lacs from Bombay to Madras. The statements of the accused persons were
recorded by the Inspector of Customs and other customs authorities before the
complaint was filed. After a preliminary enquiry the Second Presidency
Magistrate, George town, Madras committed 9 of the accused persons to stand
their trial at the City Sessions Court, the charges being confined to the
transaction connected with 700 bars of gold only. Seventeen charges were framed
on October 29, 1965, by the learned Sessions Judge against the appellant and
eight other accused persons for the various offences mentioned above. When the
hearing before ,the Sessions Court commenced the prosecution sought to file the
statements of the accused persons recorded by the customs authorities. Certain
preliminary objections were raised on behalf of the accused to the
admissibility of those statements. The first was that the officers of the
customs department who had recorded the statements must be deemed to be police
officers and the statements being of a confessional nature were not admissible
in evidence by virtue of the provisions of s. 25 of the Indian Evidence Act.
The second objection was that the investigation 615 conducted by the customs
officer must be deemed to be under Chapter XIV read with s. 5(2) of the
Criminal Procedure Code and the statements thus became inadmissible under s.
161 read with s. 162 of the Code. The third
objection was based on Art. 20(3) of the Constitution involving testimonial
compulsion. This objection was not mentioned in the order of the learned
Sessions Judge but it was alleged to have been raised before the High Court.
The matter went up to the High Court on the Revisional side because the learned
Sessions Judge took the view that the statements given by the accused persons
to the customs officers could not be received in evidence. The learned Single
Judge, who heard the Revision petition, referred the following questions to a
full bench owing to their importance:
"Are statement recorded by inquiring
officers of the Customs Department under Section 107(108)of the Customs Act,
1962, inadmissible in evidence in a criminal trial by reason of the bar under:
(1 ) Section 25 of the Indian Evidence Act; (2) Section 162 of the Criminal
Procedure Code; and (3) Art.
20(3) of the Constitution." The full
bench answered all the three questions against the accused persons. Only one
out of them, Illias, has appealed to this Court Learned counsel for the
appellant has not pressed the second point. As regards the third point, it was
conceded before the full bench of the High Court that when the statements were
recorded the investigation had not reached the stage when the particular
persons had been accused of an offence within the meaning of Art. 20( 3 ) of
the Constitution. In view of this concession learned counsel for the appellant
has submitted that the matter be left undecided so that it may be open to the
appellant to make whatever submissions he wishes to make before the trial court
when any such statement is formally tendered for admission into evidence.
Adverting to the first point the main
endeavour of the counsel for the appellant has been to demonstrate by reference
to various provisions of the new Act that statements recorded by the customs
authorities of a confessional nature would be hit by the provisions of s. 25 of
the Evidence Act. In State of Punjab v. Barkat Ram,(1) it was held by the
majority that customs officers were not police officers for the purpose of s.
25 of the Evidence Act and the statements to customs officers were admissible
in evidence at the trial of persons accused of offences, inter alia, under the Sea
Customs Act, 1878, hereinafter called the "old Act". It has been
submitted that a later decision on this Court in Raja Ram Jaiswal v. State of
Bihar(2) which related to the question whether an Excise Inspector exercising
powers under the Bihar (1) [1962] 3 S.C.R. 338. (2) [1964] 2 S.C.R. 752 616
& Orissa Excise Act was a police officer for the purposes of s. 25 of the
Evidence Act goes a great deal in favour of the appellant particularly when the
provisions of the new Act wherein substantial departure has been made from
those of the old Act are kept in view. As will be presently seen there is yet a
third decision of the constitution bench of this Court in Badku Joti Savant v.
Stale of Mysore(1) which related to the provisions of the Central Excises &
Salt Act which goes against the contention pressed by the counsel for the
appellant. At any rate, it does not appear that the majority view expressed in
Barkat Ram's case(2) has been shaken in any manner so far as statements
recorded by a customs officer under the old Act are concerned. Indeed in a
recent decision of this Court P. Shankar Lal and Ors.
v.Asstt. Collector of Customs, Madras,(3) it
has been reaffirmed that there is no conflict between the cases of Raja Ram
Jaiswal(4) and Barkat Ram(2), the former being distinguishable from the latter.
Before the previous pronouncements of this
Court are discussed it is necessary to compare the relevant provisions of the
new Act and the old Act.
Under the old Act s. 173 provided that
persons reasonably -suspected of offences under that Act might be arrested by
any officer of customs or other persons duty employed for the prevention of smuggling.
Under the new Act according to s. 104 if an officer of customs empowered in
this behalf by general or special order of the Collector of Customs has reason
to believe that any person has been guilty of an offence punishable under s.
135, he may arrest such person. As regards the power to search, Chapter XVII of
the old Act contained the relevent provisions. Section 169 conferred the power
on a customs officer to search, on a reasonable suspicion. Under s. 170 when
any officer of customs was about to search any person under the provisions of
s. 169 such person could require that officer to take him, previous to search,
before the nearest magistrate or customs-collector. Section 172 conferred power
on a magistrate to issue search warrants on an application by the
customs-collector. In the new Act s. 100 confers the power to search suspected
persons entering or leaving India. Section 102 contains Provisions analogous to
s. 170 of the lid Act with some minor differences. Under the old Act every
person arrested on the around that he had been guilty of an offence under that
Act had to be forthwith taken to the nearest magistrate .or customs-collector,
(s.
174). Under the new Act s. 104C2) provides
that every person arrested shall, without unnecessary delay, be taken to a
magistrate. Lastly s. 171A of the old Act conferred power on customs officers
to summon persons to give evidence and (1) [1966] 3 S.C.R. 608. (2) [1962] 3
S.C.R. 338. (3) Cr. As. 52 & 104/65 decided on 12-12-1967.
(4) [1954] 2 S.C.R. 752.
617 produce documents. Under the new Act s.
107 gives the power to customs officers empowered by general or special order
of collector of customs to examine persons acquainted with the facts and
circumstances of the case or to require any person to produce or deliver any
document. Section 108 confers power on a gazetted officer of customs to summon
persons for giving evidence or producing documents.
The substantial difference, however, between
the two enactments as has been pointed out by the High Court, relates to (1 )
the procedure after arrest; (2) the procedure for enquiry or investigation and
(3) the procedure for search.
As regards the procedure after arrest a
significant change which, has been made in the new Act is contained in sub-s.
(3) of s. 104. It is provided thereby that
where an officer of customs has arrested any person under sub-s. (1 ) he shall,
for the purpose of releasing such person, on bail or otherwise, have the same
power and be subject to the same provisions as the officer-in-charge of a
police station has and is subject to under the Code of Criminal Procedure. Sub-
s. (4), however, makes an offence under the new Act non-cognizable
notwithstanding anything contained in the Code of' Criminal Procedure (the
offences under the old Act were also non cognizable). In the old Act there was
no provision conferring the power of releasing a person on bail or otherwise on
a customs, officer and only a magistrate could grant bail. A great deal of
emphasis has been laid by the counsel for the appellant on the power of
granting bail which has now been given to a customs officer under the new Act.
It is pointed out that such a power goes a long way and assists a great deal in
extortion of confessions against which s. 25 of the Evidence Act contains the
main safeguards. It has also been contended that all the powers of an
officer-in-charge of the police station under the Code of Criminal Procedure
have been conferred on an officer of customs in the matter of releasing an
arrested person on bail or otherwise. It has even been suggested by the
appellant's counsel that the word "otherwise" invests the customs
officer with all the powers which an officer-in- charge of a police station can
exercise under Chapter XIV of the Code. It may be observed at once that the
word "otherwise" clearly relates to releasing a person who has been
arrested and cannot possibly be construed in the manner suggested by the
learned counsel.
In the old Act the provisions containing the
procedure for enquiry were to be found in s. 171A. As stated before, any
officer of customs duly employed in the prevention of smuggling had the power
to summon any person whose attendance he considered necessary either to tender
evidence or to produce a document in any enquiry which such officer was making
in connection with smuggling of goods, Any person so summoned was bound to
attend either in person or by an authorised agent and he was also bound- 618 to
state the truth upon any subject respecting which he was examined or make a
statement and to produce such documents and other things as might be required.
Every such enquiry was by a deeming provision to be a judicial proceeding
within the meaning of ss. 193 and 228 of the Indian Penal Code. Under the new
Act the enquiry can be of two kinds.
Under s. 107 any officer of customs empowered
by the collector of customs can require any person to produce or deliver any
document etc. or he can examine any person acquainted with the facts and
circumstances of the case.
Section 108 contains the second set of powers
which are analogous to s. 171A of the old Act, the two sections being almost
similar in language. The contention on behalf of the appellant is that s. 107
the new Act gives power of investigation to officers of customs similar to
those exercisable by a police officer under Chapter XIV of the Criminal
Procedure Code. Now a police officer under s. 160 of the Code can, by an order
in writing, require the attendance of any person within the limits of his own
or any adjoining station and he can under s. 161 examine orally any person
supposed to be acquainted with the facts and circumstances of the case. The
submission of the appellant's counsel, therefore, is that s. 107 is similar to
ss. 160 and 161 and the customs officer conducting an enquiry or investigation
relating to offences under the new Act enjoys the same power as a police
officer making an investigation under Chapter XIV of the Code of Criminal
Procedure. It is pointed out that under the old Act no such powers were
conferred on the customs officer and it was with reference to s. 171 A of the
old Act that this Court in Barkat Ram's(1) case laid emphasis on the judicial
nature of the proceedings held under that section. The distinction, it is said,
no longer obtains owing to the provisions of s. 107 of the new Act.
As regards the procedure for search the
important change which has been made in the new Act is that under s. 105 if the
Assistant Collector of customs has reason to believe that any goods liable to
confiscation or any documents or things are secreted in any place, he may
authorise any officer of customs to search or may himself search for such
goods, documents or things. Under the old Act it was necessary to obtain a
warrant from a magistrate in accordance with s. 172 and the warrant could be
executed in the same way and had the same effect as a search warrant issued
under the law relating to criminal procedure.
An examination of the previous decisions of
this Court may now be made in order to test the validity of the argument raised
on behalf of the appellant that owing to the substantial changes made in the
new Act statements of a confessional nature recorded by the customs officers
should be excluded under s. 25 of the Evidence Act on the ground that these
officers are police (1) [1962] 3 S.C.R. 338.
619 officers within the meaning of that
section. In the majority judgment in Barkat Ram's(1) case a comparison was made
between the duties and powers of police officers and customs officers which may
be summarised as follows :-- (1 ) The police is the instrument for the
prevention and detection of crime which can be said to be the main object of
having the police. The powers of customs officers are really not for such
purpose and are meant for checking the smuggling of goods and due realization
of customs duties and for determining the action to be taken in the interest of
the revenue of the country by way of confiscation of goods on which no duty had
been paid and by imposing penalties and fines.
(2) The customs staff has merely to make a
report in relation to offences which are to be dealt with by a magistrate. The
customs officer, therefore, is not primarily concerned with the detection and
punishment of crime but he is merely interested in the detection and prevention
of smuggling of goods and safeguarding the recovery of customs duties.
(3) The powers of search etc. conferred on
the customs officers are of a limited character and have a limited object of
safeguarding the revenues of the State and the statute itself refers to police
officers in contradistinction to customs officers.
(4) If a customs officer takes evidence under
s. 171A and there is an admission of guilt, it will be too much to say that
statement is a confession to a police officer as a police officer never acts
judicially and no proceeding before him is deemed to be a judicial proceeding
for the purpose of ss. 193 and 228 of the Indian Penal Code or for any other
purpose.
Adverting to Raja Ram Jaiswal's(2) case it is
significant that by virtue of s. 77(2) read with s. 78(3) of the Bihar &
Orissa Excise Act, 1915, an Inspector or Sub- inspector was deemed to be an
officer-in-charge of a police station and was entitled to investigate any
offence under the Excise Act. He could exercise all the powers which an officer-in-charge
of a police station could exercise under Chapter XIV of the Code. It was,
therefore, held by the majority that a confession recorded by an Excise Officer
during an investigation into an excise offence could not reasonably be regarded
as anything different from a confession to a police officer Barkat Ram's(1)
case was distinguished on a number of grounds. One was that the excise officer
did not exercise any judicial power just as the customs officer did under the Sea
Customs Act 1878;
secondly the customs officer was not deemed
to be an officer-in-charge of a police station and, therefore, he could not
exercise powers of such an officer under the Code of Criminal Procedure.
Further, the customs officer could make an enquiry (1) [1962] 3 S.C.R. 338. (2)
[1964] 2 S.C.R. 752.
620 but he had no power to investigate into
an offence under s. 156 of the Code. Even though some or the powers set out m
Chapter XVII of the Sea Customs Act were analogous to those of the police
officer under the Code, they were not identical with those of a police-officer
and were not derived from or by reference to the Code. it was pertinently observed
that the customs officer was not entitled to submit a report to a magistrate
under s. 190 of the Code with a view that cognizance of the offence be taken by
a magistrate. It was then said at p. 766:
"The test for determining whether such a
person is a 'police officer' for the purpose of s. 25 of the Evidence Act
would, in our judgment, be whether the powers of a police officer which are
conferred on him or which are exercisable by him because he is deemed to be an
officer in charge of a police station establish a direct or substantial
relationship with the prohibition enacted by s. 25, that is, the recording of a
confession. In other words, the test would be whether the powers are such as
would tend to facilitate the obtaining by him of a confession from a suspect.
or a delinquent. If they do, then it is unnecessary to consider the dominant
purpose for which he is appointed or the question as to what other powers he
enjoys." Emphasis was laid on the police officers having such powers which
enable them to exercise a kind of authority over the persons arrested which
facilitate the obtaining from them statements which may be of incriminating
nature. The case of Raja Ram jaiswal(1) came up for discussion in the third of
series of these cases, namely, Badku Joti Savant v. State of Mysore(2). The
appellant there had been found in possession of contraband gold. He was
prosecuted under s. 167(81) of the Sea Customs Act read with s. 9 of the Land Customs
Act. A question arose whether the statement made by the appellant to the Deputy
Superintendent of Customs and Excise was admissible in evidence. The contention
raised was that the Central Excise Officer under the Central Excises & Salt
Act (Act 1 of 1944), hereinafter called the "Central Excise Act", was
a police officer within the meaning of those words in s. 25 of the Evidence
Act.
Therefore even though the Deputy Superintendent
of Customs and Central Excise had acted under the power conferred on him by the
Sea Customs Act, he was still a police officer and the statement made to him
which was in the nature of a confession was inadmissible in evidence. This
Court referred to the difference of opinion among the High Court’s as to the
meaning of the words "police officer" used in s.
25 of the Evidence Act. One view was that
those words must be construed in a broad way and all officers would be police
(1) [1964] 2 S.C.R. 752. (2) [1966] 3 s C.R.
698.
621 officers within the meaning of those
words if they had powers of the police officer with respect to investigating of
offences with which they were concerned even if they were police officers
properly so called or not. The narrow view was that these words in s. 25 meant
a police officer properly so called and did not include officers of other
departments of Government who might be charged with the duty to investigate,
under special Acts, special crimes like the excise or customs offences etc.
The Court proceeded on the assumption that
the broad view was correct. After examining the various provisions of the
Central Excise Act and in particular s. 21 it was observed that a police
officer for the purpose of cl. (b) of s. 190 of the Code of Criminal Procedure
could only be one properly so called. A Central Excise Officer had to make a'
complaint under cl. (a) of s. 190 of the Code to a magistrate to enable him to
take cognizance of an offence committed under the special statute. 'The
argument that a Central Excise Officer under s. 21(2) of the Central Excise Act
had all the powers of an officer-in-charge of a police station under Chapter
XIV of the Code and, therefore, he must be considered to be a police officer
within the meaning of those words in s. 25 of the Evidence Act was repelled for
the reason that though such officer had the power of an officer-in-charge of a
police station he did not have the power to submit a charge sheet under s. 173
of the Code.
Raja Ram Jaiswal's(1) case was distinguished
on the ground that s. 21 of the Central Excise Act was in terms different from
s. 78(3) of the Bihar & Orissa Excise Act, 1915 which provided that for the
purpose of s. 156 of the Code of Criminal Procedure the Excise Officer
empowered under s.
77(2) of that Act shall be deemed to be the
officer-in- charge of a police station. The following observations at page 704
are indeed important:
"All that s. 21 provides is that for the
purpose of his enquiry, a Central Excise Officer shah have the powers of an
officer in-charge of a police station when investigating a cognizable case. But
even so it appears that these powers do not_ include the power to submit a
charge-sheet under s. 173 of the Code of Criminal Procedure, for unlike the
Bihar & Orissa Excise Act, the Central Excise Officer is not deemed to be
an officer- in charge of a police station." It was reiterated that the
appellant could not take advantage of the decision in Raja Ram Jaiswal's(1)
case and that Barkat Ram's(") case was more apposite. The ratio of the
decision Badku Joti Savant(3) is that even if an officer under the special Act
has been invested with most of the powers which an officer- (1) [1964] 2 S.C.R.
752. (2) [1962] 3 S.C.R. 338.
(3) [1966] 3 S.C.R. 698.
Sup CI/69-7 622 in-charge of a police station
exercises when investigating a cognizable offence he does not thereby become a
police officer within the meaning of s. 25 of the Evidence Act unless he is
empowered to file a charge sheet under s. 173 of the Code of Criminal
Procedure.
Learned counsel for the appellant when faced
with the above difficulty has gone to the extent of suggesting that by
necessary implication the power to file a charge sheet flows from some of the
powers which have already been discussed under the new Act and that a customs
officer is entitled to exercise even this power. It is difficult and indeed it
would be contrary to all rules of interpretation to spell out any such special
power from any of the provisions contained in the new Act. In this view of the
matter even though under the new Act a customs officer has been invested with
many powers which were not to be found in the provisions of the old Act, he
cannot be regarded as a police officer within the meaning of s. 25 of the
Evidence Act. In two recent decisions of this Court in which the judgments were
delivered only on October 18, 1968 i.e. Romesh Chandra Mehta v. State of West
Bengal(1) and Dady Adarji Fatakia v.K.K. Ganguly, Asstt Collector of Customs
& Ant.,('2) the view expressed in Barkat Ram's(3) case with reference to
the old Act has been reaffirmed on the question under consideration and it has
been held that under the new Act also the position remains the same. This is
what has been said in Dady Adarji Fatakia's(2) case:
"For reasons set out in the judgment in
Cr. A. 27/67 (Romesh Chand Mehta v. State of West Bengal) and the judgment of
this Court in Badku Joti Savant's(4) case, we are of the view that a Customs
Officer is under the Act of 1962 not a police officer within the meaning of s.
25 of the Evidence Act and the statements made before him by a person who is
arrested or against whom an inquiry is made are not covered by s. 25 of the
Indian Evidence Act." This appeal fails and it is dismissed.
V.P.S. Appeal dismissed.
(1) [1969] 2 S.C.R. 461. (2) Cr. Appeal No.
46 of 1968 decided on 18-10-1968. (3) r. [1962] 3 S.C.R. 338.
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