Percy Rustam Basta Vs. State of
Maharashtra  INSC 77 (16 March 1971)
CITATION: 1971 AIR 1087 1971 SCR 35 1971 SCC
RF 1992 SC1831 (32)
Customs Act, 1962--S. 108--inquiry under--Statement
made to customs officers--Admissibility in evidence--Evidence Act, s.
24--Person against whom inquiry being held not "accused person"
within the meaning of s. 24--To be told to speak truth on pain of prosecution
does not constitute threat.
The appellant was convicted for offences
under the Customs Act, 1962. He challenged the legality of his conviction on
the ground that his statement to the customs authorities made on a summons
issued under s, 108 of the Act and on which the conviction was substantially
based was not admissible in evidence in view of s. 24 of the Evidence Act.
It was contended that the statement was
procured by threat in as much as the officer who recorded the statement warned
the appellant that he was bound to state the truth as the officer was
conducting a judicial proceeding to which ss.
193 and 228 of the Penal Code applied. Dismissing
HELD,: (i) A statement by a person against
whom an inquiry is being held under section 108 is not a statement made by a
person accused of an ,offence. Therefore, the essential ingredient to attract
s. 24, namely that the confession must be made by an accused person, is lacking
in this case.[143 D] Romesh Chandra Mehta v. State of West Bengal,  2
S.C.R. 461 and Illias v. Collector of Customs, Madras  2 S.C.R. 613,
(ii) A compulsion to speak the truth emanates
in this case riot from ,the officers who recorded the statement but from the
provisions of the statute itself. What is necessary to constitute a threat
under s. 24 of the Evidence Act is that it must emanate I e from' the person in
authority. The officers recording the statement were only doing their duty in
bringing to the notice of the appellant the provisions of the statute. [44 C-E]
(iii) To be told that the law required him to tell the truth and if he did not
tell the truth he was liable to be prosecuted under s. 193 Penal ,Code, for
giving false evidence did not constitute a threat under s. 24 of the Evidence
(iv) Even assuming that there was an
inducement or threat, the appellant bad no basis for supposing that by making
the statement he would gain any advantage or avoid any evil with reference to
the proceedings in respect of which an inquiry was being conducted by the
customs officers. Therefore, even on this ground s. 24 of the Evidence Act has
no application. [44 G-H]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 267 of 1968.
Appeal from the judgment and order dated
September 26, 1968 of the Bombay High Court in Criminal Appeal No. 244 of 1967.
36 A.S.R. Chari, R. Nagaratnam, Janendra Lal
and B. R. Agarwal, for the appellant.
H. R. Khanna and B. D. Sharma, for the
The Judgment of the Court was delivered by
Vaidialingam, J.This appeal by the first accused, on certificate, is directed
against the judgment of the Bombay High Court dated September 26, 1968, in
Criminal Appeal No. 244 of 1967 confirming his conviction and sentence passed
against him by the Presidency Magistrate, Mazgaon, Bombay for offences under S.
120B I.P.C. read with S. 135 of the Customs Act, 1962-(Act 52 of 1962)
(hereinafter to be referred as the Act) and also under S. 135 of the Customs Act
in respect of the articles claimed to have been recovered from his possession.
The short point that arises for consideration
in this appeal is whether S. 24 of the Evidence Act is a bar to the
admissibility in evidence of the statement Ex. T given by the appellant to the
Customs Officers on a summons issued to him under S. 108 of the Act.
The appellant along with six others was
charged under the sections mentioned above and after being found guilty was
sentenced to undergo one year's rigorous imprisonment and to pay a fine of Rs.
2,000/for the charges under S. 120B I.P.C. read with S. 135 of the Act. He was
also sentenced to undergo one year's rigorous imprisonment and to pay a fine of
Rs. 2,000/for the charge under S. 135 of the Act.
The sentences were directed to run
concurrently. In default of payment of fine, he was also sentenced to undergo
further rigorous imprisonment for the period mentioned in the judgment of the
The case against the appellant was that he
and several other persons entered into a conspiracy during the period from
June, 1963 to the end of December, 1963 to smuggle wrist watches and other
luxury goods such as Nylon Textiles, toilet requisites, playing cards,
cigarette lighters, saffron etc. from Dubai to India through Mechanized sailing
vessel and land they said imported and smuggled goods surreptitiously at any
coast near Bombay and then to bring the smuggled goods to Bombay by Motor
vehicles. It was further alleged that in pursuance to the said conspiracy such
articles were actually smuggled in the month of December, 1963. The various
parts played by the appellant along with the other accused had been given in
the evidence of the prosecution witnesses. P. W. 19, Inspector in the Rummaging
Division Town Intelligence in the Bombay Customs, on receipt of information in
or about December 21, 1963 about the smuggling of the goods conducted searches
in various places and seized several smuggled articles.
37 During the pendency of the trial, the
third and the fifth accused died and the second accused who was present for
some time later absconded necessitating separation of his trial.
Some other accused could not be traced at
all. Therefore, the trial proceeded against the appellant and accused Nos.
4, 6, and 7. It is not necessary to refer to
the pleas of accused Nos. 4, 6 and 7 as they have been acquitted of all the
charges by the Presidency Magistrate. The appellant had filed a lengthy written
statement on October 24, 1966 denying the. Charges levelled against him. He had
stated that he was not in any manner concerned with any conspiracy.
He also denied, that any articles had been
recovered by the Customs Officers from the houses mentioned by them and stated
that in any event he had nothing to do with any of those articles. He pleaded
that his brother Cama was inimical towards him and that the latter in connivance
with the Customs authorities had foisted this criminal case against him making
false allegations. The appellant alleged that he had left Bombay for Ajmer to
pay his respects to the Darga on December 21, 1963 and returned to Bombay on
January 2, 1964, when he was apprehended by the Customs authorities and kept in
detention, in the first instance, till January 7, 1964. During this period of
detention he was continuously harassed and interrogated by P. Ws. 5 and 19 and
forced to put his signature on January 7, 1964 to a statement already got
written and prepared by P. W. 5. He was threatened that if he did not put his
signature on the said statement, his mother and another brother will be
prosecuted. He further alleged that it was represented to him that the
statement to which he was being asked to put his signature was intended only to
be used against the second accused and no part of it was meant to be used
against him. It may be stated at this stage that the statement recorded from
the appellant by P. Ws. 5 and 19, on January 7, 1964 is Ex. T. The statement
referes to various matters concerning his relationship with the other accused
as well as his connection with several articles which had been seized and which
were the subject of the charges.
We do not think it necessary to refer to Ex.
T in any great detail nor to the various seizures of articles made by the
Customs authorities. It is enough to state that the conviction of the appellant
has been substantially, based on the confessional statement Ex. T after finding
independent corroboration furnished by other evidence on record in respect of
the statements contained in Ex. T.
Objections were taken to the admissibility in
evidence of Ext. on the ground that it is hit by Art. 20(3) and ss. 24 and 25
of the Evidence Act. All these objections were overruled both by the Presidency
Magistrate as well as the High Court. The findings of the Presidency Magistrate
and accepted by the High Court are 38 that Ex. T is a voluntary statement and
it was a true disclosure made by the appellant. The allegation of the appellant
that he was forced to Put his signature to Ex. T which had already been
prepared by P. Ws. 5 and 19 and that he was induced to put his signature on the
representation that it will be used only against the second accused and not
against the appellant, was rejected. The further findings are that Ex. T was a
voluntary statement made by the appellant and that his plea that he was kept
under illegal, detention from January 2, 1964 to January 7, 1964 was false. It
has also been found that Ex. T is not hit either by Art. 20(3) or by ss. 24 and
25 of the Evidence Act.
The only contention that has been raised
before us by Mr. A.S. R. Chari, learned counsel for the appellant, is, that in
view of S. 24 of the Evidence Act, Ex. T, the statement of the appellant
recorded by the Customs authorities under the Act, is not admissible in
evidence at the trial for the offences in respect of which the appellant was
charged and tried. His further contention is that as the conviction has been
based substantially on the statements contained in Ex. T, the conviction is
illegal. The other contentions based on Art. 20(3) and S. 25 of the Evidence
Act which were taken in the High Court have not been taken before us. In fact
those contentions are no longer available to the appellant in view of the
decisions of this Court. According to Mr. Chari when the statement Ex. T was
recorded by the Customs officials, the appellant was in the position of an
accused. It is in evidence that P. W. 5, who recorded the statement warned the
appellant that he was bound to state the truth as the officer was conducting a
judicial proceeding to which the provisions of ss. 193 and 228 1. P. C. apply.
This, according to the learned counsel, amounts to a threat and as the
statement Ex. T has been procured on the basis of such a threat, it is
inadmissible in evidence.
On the other hand, Mr. H. R. Khanna, learned
counsel for the State has referred us to the findings recorded by the
Presidency Magistrate and accepted by the High Court regarding voluntary nature
of Ex. T. The council also pointed out that the fact that P. W. 5, who recorded
the statement Ex. T from the appellant, informed him that he was bound to speak
the truth as it was a# judicial proceeding to which S. 1931. P. C. applies,
does not amount to any threat in law so as to attract S. 24 of the Evidence
We will now reter to the circumstances under
which Ex. T was recorded as found by both the Courts. Consequent on information
received by the Customs authorities, several raids were conducted from December
21, 1963. The appellant went to the Customs House at about 8 A.M. on January 7,
1964. By about 39 8.30 A.M. summons under s. 108 of the Act was served on him.
From 11.30 A.M. onwards to about 8.30 P.M.
the process of recording of the statement Ex. T. from the appellant continued
excepting for a short break of about 21 hours for lunch, tea and other
requirements. The appellant was arrested immediately after his statement Ex. T
was completed. The seizures of the entire contraband goods were completed by
about December 25, 1963. Though the attention of the appellant was drawn to
sub-s. 4 of S. 108 of the Act, he was not informed or warned that his statement
was likely to be used in the event of any prosecution against him for the said
offence. Undoubtedly Ex. T contained various incriminating facts regarding the
complicity of the appellant with the offences alleged against him. The
Inspector of Customs, P. W. 5, who recorded the statement Ex. T and P. W. 19,
have both admitted that they questioned the appellant till the statement Ex. T
was finally completed at 8.30 P.M. on January 7, 1964. Both of them have also
asserted that they had not given any threat or ,offered any inducement to the appellant
before the statement Ex. T was made. P. W. 5 has deposed that he drew the
attention of the appellant to the last paragraph of the summons issued under S.
108 of the Act. In fact in Ex. T the appellant states that he had received
summons No. 3 of 1964 dated January 7, 1964 issued to him under S. 108 of the
Act. He has further stated that he had read the summons and that he had further
understood that giving false evidence is an offence punishable under S. 193 of
the Indian Penal Code.
P. W. 5 has further deposed that he had
explained to the appellant the provisions of s. 1931. P. C. and that the
statement was being recorded as if he was in court and that the appellant was
bound to speak the truth and that if he made a false statement he would be prosecuted.
Based upon these answers of P. W. 5, Mr. Chari, urged that it is clear that P.
W. 5 has administered a threat to the appellant and it was in consequence of
such a threat that the appellant gave the statement Ex. T and thereby has
placed himself in a grave jeopardy of action being taken against him under the
Before we refer to S. 24 of the Evidence Act,
it is desirable to advert to the relevant provisions of the Customs Act. Sections
107 and 108 are as follows :
"S. 107 Power to examine persons Any
officer of customs empowered in this behalf by general or special order of the
Collector of Customs may, during the course of any enquiry in connection with
the smuggling of any goods,(a) require any person to produce or deliver any
document or thing relevant to the enquiry;
40 "(b) examine any person acquainted
with the facts and circumstances of the case.
S. 108. Power to summon persons to give
evidence and produce documents(1) Any gazetted officer of customs shall have
power to summon any person whose attendance he considers necessary either to
give evidence or to produce a document or 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 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 authorized 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 produce such
documents and other things as may be required Provided that the exemption under
section 132 of the Code of Civil Procedure, 1908, shall be applicable to any
requisition for attendance under this section.
(4) Every such enquiry a,, aforesaid shall be
deemed to be a judicial proceeding within the meaning of section 193 and
section 228 of the Indian Penal Code." Section 122 of the Act deals with
confiscation of goods and levy of penalty. Section 124 deals with the procedure
to be adopted before ordering the confiscation of any goods or imposing any
penalty on any person. Section 135 deals with prosecution before a criminal
court in the circumstances mentioned in cls, (a) and (b) and that prosecution
is without prejudice to any action taken under the Act.
This Court had to consider in Ramesh Chandra
Mehta v. State of West Bengal(1) whether an officer of customs under the Sea
Customs Act, 1878 was a police officer and whether the statements made to him
were hit by Art. 20(3) of the Constitution and inadmissible in evidence under
S. 25 of the Evidence Act. A further question also arose whether an officer of
customs acting, (1)  2 S. C. R. 461.
41 under the Act is in any event a police
officer within the meaning ,of S. 25 of the Evidence Act and hence the
confessional statements made to him were inadmissible in evidence. After a
consideration of the scheme of the Sea Customs Act, 1878, this Court held that
a Customs Officer does not exercise, when inquiring into, a .suspected
infringement of the Sea Customs Act, powers of investigation which a police
officer may in investigating the commission of an offence and that he is
invested with the power to enquire into infringements of the Act primarily for
the purpose of adjudicating about forfeiture and penalty.
Further it was held that the said officer has
no power to investigate an offence triable by a Magistrate and that he can only
make a complaint in writing before a competent Magistrate and hence S. 25 of the
Evidence .Act has no application. It was further held that the steps taken by
the Customs Officer are for the purpose of holding an enquiry under the Sea
Customs Act and for adjudging confiscation of ,goods dutiable or prohibited and
imposing penalties and that the Customs Officer does not at that stage accuse
the person suspected of infringing the provisions of the Sea Customs Act with
the commission of any offence. Finally, it was held that a person examined
under S. 17 1 A of the Sea Customs Act does not stand in the character of an
accused person inasmuch as there is no formal accusation made against him by
any person at that time and hence any statement made by such a person to a,
Customs Officer is not hit by Art. 20(3) of the Constitution.
The scheme of the Act was also considered in
the said decision and some points of difference between the Act and the Sea
Customs Act, 1878 were noted. But notwithstanding the slight difference in the
powers exercised by a, Customs Officer under the Act, it was held that the
Customs Officer under the Act is not a police officer within the meaning of S.
25 of the Evidence Act. It was emphasized that the proceedings taken by him are
for the purpose of holding an enquiry into suspected cases of smugly and that
the Customs Officer is for all purposes an officer of the Revenue. It was laid
down that as the Customs Officer under the Act is not a police officer, the
statement made before him by a person, who is arrested or against whom an
enquiry is made, are not covered by S. 25 of the Evidence Act. It was further
laid down that until a complaint is filed before a Magistrate, the person
against whom an enquiry is commenced under the Customs Act does not stand in
the character of a person accused of an offence under S. 135. The discussion on
this aspect is wound up by this Court as follows :
"............ The Customs Officer even
under the Act of 1962 continues to remain a revenue officer primarily concerned
with the detection of smuggling and enforcement and levy of proper duties and
prevention of entry 42 of proper duties and prevention of entry into India of
dutiable goods without payment of duty and of goods of which the entry is
prohibited. He does not on that account become either a police officer, nor
does the information conveyed by him, when the person guilty of an infraction
of the law is arrested, amount to making of an accusation of an offence against
the person so guilty of infraction. Even under the Act of 1962 a formal
accusation can only be deemed to be made when a complaint is made before a
Magistrate competent to try the person guilty of the infraction under ss. 132,
133, 134 and 135 of the Act. Any statement made under ss.
107 and 108 of the Customs Act by a person
against whom an enquiry is made by a Customs Officer is not a statement made by
a person accused of an offence." From this decision it follows that a
Customs Officer conducting an enquiry under ss. 107 or 108 of the Act is not a
police officer and the person against whom the inquiry is made is not an
accused and the statement made by such a person in that inquiry "is not a
statement made by a person accused of an offence".
The same position has been reiterated in the
latter case of Illias v. Collector of Customs, Madras.(1) Now coming to S. 24
of the Evidence Act, it runs as follows "Section 24 : Confession caused by
inducement, threat, or promise, when irrelevant in criminal proceeding :
A confession made by an accused person is
irrelevant in a criminal proceeding, if the making of the confession appears to
the Court to have been caused by any inducement, threat or promise having
reference to, the charge against the accused person, proceeding from a person
in authority and sufficient, in the opinion of the Court, to give the accused
person grounds which would appear to him reasonable for supposing that by
making it he would gain any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him." To attract the provisions of
this section, the following facts have to be established :
(a) that the confession has been made by an
accused, person to a person in authority;
(b) that it must appear to the Court that the
confession has been obtained by reason of any inducement.. threat or promise
proceeding from a person in authority;
(1) (1969] 2 S. C. R. 613.
43 (c) that the inducement, threat or promise
must have reference to the charge against the accused person; and (d) the
inducement, threat or promise, must, in the opinion of the Court, be such that
the accused in making the confession believed or supposed that by making it he
would pin any advantage or avoid any evil of temporal nature in reference to
the proceedings against him.
We have already pointed out that when the
appellant appeared, before the Customs Officers on the morning of January 7,
1964, he was served with a summons under S. 108 of the Act and that it was
after the receipt of the summons, the appellant gave the statement Ex. T. From
the decision in Ramesh Chandra Mehta v. State of West Bengal(1), it is clear
that when an inquiry is being conducted under S. 108 of the Act, and a
statement is given by a person against whom the inquiry is being held it
"is not a statement made by a) person accused of an offence and the person
who gives the statement does not stand in the character of an accused
person." Therefore the first essential fact to be established, to attract
S. 24, referred to above, is lacking in this case, as the appellant was not an
We have already stated that it has been found
by both the Courts that the statement Ex. T is a voluntary statement made by
the appellant. Mr. Chari attempted to bring the statement Ex. T under S. 24 of
the Evidence Act because of P. W. 5 having informed the appellant that the
statement was being recorded as if he was a court and that the appellant was
bound to speak the truth and that if any false statement is made, he would be
prosecuted. P. W. 5 has also stated that he explained S. 193 1. P. C. to the
According to the learned counsel this conduct
of P. W. 5 clearly amounts to a threat being administered to the appellant.
It is not in dispute that P. W. 5, who
recorded the confession, is a person in authority within the meaning of S. 24
of the Evidence Act. But the question is whether, when P.
W. 5 drew the attention of the appellant to
the fact that the inquiry is a judicial proceeding to which S. 1931. P. C.
applies and that the appellant must speak the
truth, it can be considered to be a threat........ Proceeding from a person in
authority" under the section.
We are not inclined to accept the contention
of Mr. Chari that in the circumstances mentioned above any threat has proceeded
from a person in authority to the appellant, in consequence (1)  2 S. C.
44 of which the statement Ex. T was given.
Section 108 of the Act gives power to a Customs Officer of a gazetted rank to
summon any person to give evidence in any inquiry in connection with the
smuggling of any goods. The inquiry made under this section is by virtue of
sub-section (4) deemed to be a judicial proceeding within the meaning of ss.
193 and 228 of the Indian Penal Code. A
person summoned under S. 108 of the Act is bound to appear and state the truth
when giving evidence. If he does not answer he would render himself liable to
be prosecuted under S. 228 1. P. C.
If, on the other hand, he answers and gives
false evidence, he would be liable to be prosecuted under S. 193 I. P. C.
for giving false evidence in a judicial
proceeding. In short a person summoned under S. 108 of the Act is told by the
statute itself that under threat of criminal prosecution he is bound to speak
what he knows and state it truthfully.
But it must be noted that a compulsion to
speak the truth, even though it may amount to a threat, emanates in this case
not from the officer who recorded the statement, but from the provisions of the
statute itself. What is necessary to constitute a threat under S. 24 of the
Evidence Act is that it must emanate from the person in authority. In the case
before us there was no such threat emanating from P. W. 5, who recorded the
statement of P. W. 19, who was guiding the proceedings. On the contrary the officers
recording, the statement were only doing their duty in bringing to the notice
of the appellant the provisions of the statute. Even if P. W. 5 had not drawn
the attention of the appellant to the fact that the inquiry conducted by him is
deemed to be a judicial proceeding, to which S. 193 I. P. C. applies, the
appellant was bound to speak the truth when summoned under S. 108 of the Act
with the added risk of being prosecuted, if he gave false evidence.
Further, it is to be seen that it is not
every threat, inducement or promise even emanating from the person in authority
that is hit by S. 24 of the Evidence Act. In order to attract the bar, it has
to be such an inducement, threat or promise, which should lead the accused to
suppose that "by making it he would gain any advantage or avoid any evil
of temporal nature in reference to the proceedings against him". In the
case before us what is it that the appellant has been told ? He has been told
that the law requires him to tell the truth and if be does not tell the truth,
lie may be prosecuted under S. 193 I. P. C. for giving false evidence. This. we
have held, does not constitute a threat under S. 24 of the Evidence Act. The
plea of the appellant was that he was compelled to make the statement under the
threat that otherwise his mother and another brother will be prosecuted. He has
further stated that he was induced to make the statement on the belief that it
will be used only against the second accused and not against him. These pleas
of the appellant have been disbelieved by both the 45 trial court and the High
Court. , Therefore, it follows that even assuming that there was an inducement
or threat, the appellant had no basis for supposing that by making the statement
he would gain any advantage or avoid any evil with reference to the proceedings
in respect of which an inquiry was being conducted by the Customs Officers.
Therefore, even on this ground also section 24 of the, Evidence Act has no
For all the above reasons we hold that by the
mere fact that the Customs Officer P. W. 5, who recorded the statement Ex. T,
explained the provisions of S. 193 1. P. C. and informed the appellant that he
was bound to tell the truth and that he is liable to be prosecuted if he made a
false statement, there was no threat given to the appellant. We accordingly
hold that S. 24 of the Evidence Act has no application and the statement Ex. T
was properly admitted in evidence in the trial of the appellant. Both the Courts
have found that there is also independent evidence to corroborate the truth of
the statements in Ex. T. The question of admissibility of Ex. T in evidence,
having been decided against the appellant, no other point has been argued
In the result the appeal fails and is
K.B.N. Appeal dismissed.