Hira H. Advani Vs. State of
Maharashtra [1969] INSC 179 (13 August 1969)
13/08/1969 MITTER, G.K.
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 be 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 cfs. 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 inculcator 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]
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 there from.
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 anybody'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 there from 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, segments
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. Excluded 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 there under 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 before
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
defendant 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 inculcator 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.
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