Shaikh Chougule Vs. S.Reynolds, Suptd. of Customs, Marmgoa  Insc 561 (19 October 2001)
Mohapatra K.G. Balakrishnan D.P.Mohapatra,J.
with dismissal of the revision application filed by him, challenging the judgment
passed by the Appellate Court dismissing his appeal, the accused Gulam Hussain Shaikh
Chougule has filed this appeal by special leave assailing the judgment of the
Courts below convicting him of the offence under section 135 of the Customs
Act, 1962 (for short the Act) and sentencing him to undergo imprisonment for
three years and to pay a fine of Rs.25,000/- in default to undergo six months
simple imprisonment further.
gist of the prosecution case is that 207 silver ingots weighing approximately 30
kgs. valued at Rs.4,22,48,225/- were clandestinely brought into Goa in an Arab Dhow and the same were to be transported
in the trawler Gramdev Navdurga (for short the trawler). When the said trawler
was intercepted at Aguada Light House by the Officers of the Customs Department
on 4th of October, 1988 the appellant was found to be present on the trawler.
investigation revealed that the trawler was stationed on the port for being
used to carry and transport the contraband silver ingots.
respondent who was a Customs Officer issued a notice to the appellant on 5th October, 1988 and recorded his statement under
section 108 of the Act.
on 6th October, 1988 the appellant was arrested and
produced before the Magistrate on 7th October, 1988. Thereafter on 28th February, 1989 the respondent filed a complaint
under section 135 of the Customs Act in the Court of the Chief Judicial
Magistrate, Panaji. The trial court by judgment dated 18th February, 1995
convicted the appellant and others for having committed the offence under
section 135 of the Customs Act and sentenced him to undergo 7 years rigorous
imprisonment and to pay a fine of Rs.50,000/- and in default to suffer rigorous
imprisonment for one year. The Additional Sessions Judge, Mapusa by the
judgment dated 28.12.1999 maintained the conviction of the appellant but
reduced the sentence to three years rigorous imprisonment with a fine of
Rs.25,000/- in default to undergo six months simple imprisonment further. The
appellant filed the Criminal Revision Application No.6 of 2000 assailing the
judgment/order of the Appellate Court. The High Court by order dated 28.4.2000
dismissed the Criminal Revision Application. The said order is under challenge
in the present appeal.
paragraph 4 of the judgment under challenge the High Court has formulated the
three points urged by the counsel appearing for the appellant, namely :
Customs Authorities while recording the statement under section 108 of the
Customs Act, had not followed the safeguards provided under Section 164
Criminal Procedure Code;
applicants in Criminal Revision Application No.4, 5 and 6/2000 had been
detained by the Customs Authorities from 4th October, 1988 to 7th October,
1988, which amounts to arrest of the said applicants and the statements of
these applicants were recorded under Section 108 of the Customs Act during this
period of detention after giving threats and exercising duress. In this
connection it is pointed out that the medical papers of the applicants show
that they were assaulted and, as such, the statements of these applicants
recorded under section 108 of the Customs Act, cannot be said to be voluntary;
link has been established between the Arab dhow and the said trawler.
High Court, on examination of the first point which raised essentially a
question of law, rejected the contention of the applicant referring to
different decisions of this Court in Union Textile Traders vs. Shree Bhawani
Cotton Mills Ltd. (AIR 1970 SC 1940); Harbansingh Sardar Lenasingh and another
vs. The State of Maharashtra & Anr. (AIR 1972 SC 1224); K.T.M.S. Mohd. and
another etc.etc. vs. Union of India (1992 (3) SCC 178), and held that the
provisions of section 164 of the Criminal Procedure Code are not applicable to
the confessional statement of the appellant recorded by the Customs Officer
under section 108 of the Act and therefore rejected the contentions raised on
behalf of the appellant that the safeguards prescribed under section 164
Criminal Procedure Code having not been complied by the Customs Officer the
statement is inadmissible in evidence. The High Court held that a statement
recorded under section 108 of the Act is neither hit by section 164 Criminal
Procedure Code nor section 25 of the Evidence Act.
the other two points urged by the counsel for the appellant, the High Court did
not feel persuaded to interfere with the concurrent findings of fact rejecting
the contention that the statement recorded under section 108 of the Act was not
voluntary one having been obtained under pressure of coercion and threat and
physical assault on the appellant. The High Court also rejected the third point
that the prosecution has failed to establish any connection between the Dhow
and the trawler on which the appellant and others were present.
learned counsel for the appellant reiterated the contentions raised before the
High Court that the safeguards prescribed under section 164 Criminal Procedure
Code for recording the confessional statement of an accused have not been
followed by the Customs Officer.
108 of the Customs Act, 1962 reads as follows:
Power to summon persons to give evidence and produce documents
Any gazetted officer of custom 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.
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 control of the person
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 produce such documents and other things as may be required.
that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of
1908), shall be applicable to any requisition for attendance under this
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 (45
case of Assistant Collector of Central Excise, Rajamundry vs. Duncan Agro
Industries Ltd. & Ors., 2000(7) SCC 53, this Court held that the provision
in section 164 of Criminal Procedure Code empowers a Judicial Magistrate to
record any confession or statement made to him during the course of
investigation. The power conferred by Section 164, Criminal Procedure Code to
record confessions and statements can be exercised only by a Judicial Magistrate.
Even a police officer on whom power of a Magistrate has been conferred is
forbidden from recording a confession. Sub-sections (2) and (4) deal with
procedure which such Magistrate has to follow while recording inculpatory
statements made by persons. Referring to section 108 of the Customs Act, this
Court observed :
108 of the Customs Act does not contemplate any magisterial intervention.
power under the said section is intended to be exercised by a gazetted officer
of the Customs Department. Sub- section (3) enjoins on the person summoned by
the officer to state the truth upon any subject respecting which he is
examined. He is not excused from speaking the truth on the premise that such
statement could be used against him. The said requirement is included in the
provision for the purpose of enabling the gazetted officer to elicit the truth
from the person interrogated. There is no involvement of the Magistrate at that
entire idea behind the provision is that the gazetted officer questioning the
person must gather all the truth concerning the episode. If the statement so
extracted is untrue its utility for the officer gets lost.
ban contained in section 25 of the Evidence Act is an absolute ban. But it must
be remembered that there is no ban in regard to the confession made to any
person other than a police officer, except when such confession was made while
he is in police custody. The inculpatory statement made by any person under
Section 108 is to non-police personnel and hence it has no tinge of
inadmissibility in evidence if it was made when the person concerned was not
then in police custody.
the caution contained in law is that such a statement should be scrutinised by
the court in the same manner as confession made by an accused person to any
non-police personnel. The court has to be satisfied in such cases, that any inculpatory
statement made by an accused person to a gazetted officer must also pass the
tests prescribed in Section 24 of the Evidence Act. If such a statement is
impaired by any of the vitiating premises enumerated in Section 24 that
statement becomes useless in any criminal proceedings.
judgment this Court quoted with approval the following observations made by Hidayatullah,
J. (as he then was) in Haroon Haji Abdulla vs. State of Maharashtra ((1968) 2
statements are not confessions recorded by a Magistrate under Section 164 of
the Code of Criminal Procedure but are statements made in answer to a notice
under Section 171-A of the Sea Customs Act. As they are not made subject to the
safeguards under which confessions are recorded by Magistrates they must be
specially scrutinised to finding out if they were made under threat or promise
from someone in authority. If after such scrutiny they are considered to be
voluntary, they may be received against the maker and in the same way as
confessions are received, also against a co-accused jointly tried with him.
was made to the decision in Romesh Chandra Mehta vs. State of West Bengal ( 1969) 2 SCR 461) wherein it was
an inquiry is being conducted under Section 108 of the Customs 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.
Court also referred the case in Percy Rustomji Basta vs. State of Maharashtra, (1971) 1 SCC 847, and also the
three Judge Bench decision in Harbansingh Sardar Lenasingh & Anr. vs. State
of Maharashtra, (supra); Veera Ibrahim v. The
State of Maharashtra, (1976) 2 SCC 302 and Poolpandi v. Supdt.,
Central Excise ,(1992) 3 SCC 259).
conclusions of the Court were summarised as follows:
hold that a statement recorded by Customs Officers under Section 108 of the
Customs Act is admissible in evidence. The court has to test whether the
inculpating portions were made voluntarily or whether it is vitiated on account
of any of the premises envisaged in Section 24 of the Evidence Act........
view of the position of law enunciated by this Court in the recent decision
afore-mentioned with which we are in respectful agreement, no exception can be
taken against the finding recorded by the High Court on the point.
section 24 of the Evidence Act the case of the appellant was that since the
confessional statement was made under inducement and threat and physical
assault which, the High Court on examination, declined to accept on the facts
emerging from the evidence in the case, there is no scope for this Court to
interfere with the order in that regard in exercise of jurisdiction under
Article 136 of the Constitution.
the reasons discussed in the foregoing paragraphs, it has to be held that the
High Court rightly rejected the contentions raised on behalf of the appellant
on that score. Thus the appeal, being devoid of merit, is dismissed.