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Report No. 47

Chapter 14

Administrative Adjudications

14.1. Statements made in administrative adjudications.-

Many of the Acts dealing with economic offences empower the enforcement officers to summon and examine witnesses. The statements made by these witnesses before such officers are not, however, admissible in evidence in the subsequent criminal prosecutions. We are of the view that these statements, if recorded by officers of sufficiently high status, to be determined by the Government should be admissible in such prosecutions, since they are very often the earliest officially recorded version of the facts.

14.2. Certain conditions and safeguards will, no doubt, be necessary. Reference in this connection may be made to the Evidence Act, which has a provision relating to the admissibility of a statement made in a previous judicial proceeding.

The relevant provision in the Evidence Act is as follows:-

"33. Relevancy of certain evidence for proving, 1in subsequent proceeding, the truth of facts therein stated.-Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided-

that the proceeding was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross-examine;

that the questions in issue were substantially the same in the first as in the second proceeding.

Explanation.-A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."

1. Section 33, Evidence Act.

14.3. We think that the safeguards mentioned in the proviso to section 33 need not appear in the new provision which we contemplate. We are further of the view that the court should have a discretion, to admit the statement in evidence, if the circumstances of the case so require, even where the maker of the statement is a witness in the proceedings before the Court. Though such a discretion is not very frequently met with in Indian statute law, in this case it is necessary for obvious reasons.

Twenty years ago, Stone stressed1 the importance of excluding similar conduct evidence (even though it is relevant otherwise than via disposition), where its effect was too prejudicial, in these words-"where the peg is so small and the linen so bulky and dirty that a jury will never see the peg, but merely yield to indignation at the dirt." Somewhat similar considerations make it desirable that the court should have this power, since the provision which we are recommending is itself new.

1. Stone Exclusion of Similar Fact Evidence, 46 Harvard Law Review, p. 984.

14.4. We, therefore, recommend that a provision on the following lines may be inserted in the relevant Acts:-

"A statement made and signed by a person in a proceeding under this Act before any officer authorised by law to record it, being an officer of a rank notified by the Central Government in this behalf, shall be relevant, for the purpose of proving, in a prosecution for an offence under this Act, the truth of the facts which it states,-

(a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or

(b) when the person who made the statement is examined as a witness in the case, and the Court is of opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice."

14.5. Appeals in administrative adjudications.-

The Acts relating to economic offences confer quasi-judicial powers on departmental agencies. Whether these agencies are individual officers, Boards or Tribunals is a matter of detail; but it is obvious that important points of dispute between the State and the citizen are decided by them. It is not our intention to go into the structure, powers and procedure of these agencies; but there is one matter of relevance for the present purpose which we should mention. It relates to appeals in respect of these adjudications. There are certain points of importance which have emerged during our own consideration of the subject as a result of suggestions made at the discussion which we held.

The first is that the hierarchy of appeals under some of the Acts is likely to cause delay in adjudication, thereby also causing delay in any criminal prosecution that may ultimately have to be initiated. Secondly, the status and composition of the final appellate authority under some of the Acts is capable of improvement. And, thirdly, the Central Government has revisional powers under some of the Acts-a position which is not conducive to inspiring confidence in the public and which does not appear to be inevitably required for the proper administration of these Acts. We are of the view that there is, in these three respects, need to re-consider the present position. In fact, the working of these agencies has received attention at the hands of several Committees; Working Groups, Study Teams and the like. What is required now is an attempt to implement their recommendations.

14.6. To illustrate what we have stated above, we shall refer to the position under the Customs Act.

(a) Appeals from the orders or decisions of the officers below the rank of Collector of Customs go to an appellate collector1.

(b) Appeals from the decisions or orders passed by the Collector of Customs lie to the Central Board of Customs and Excises2.

(c) The Central Board of Customs and Excises may, either on the application of the aggrieved person or suo motu, call for and examine the records of any proceeding, in which a customs officer has passed any decision or order for the purpose of satisfying itself as to the legality or propriety of any such decision or order, and may pass such orders thereon as it deems fit3. But no order passed on appeal can be revised by the Board4.

(d) Any order passed by an appellate officer in appeal, any order passed in revision by the Board suo motu, and any order passed in revision by the Board on the application of the aggrieved party where the order envisages enhancement of penalty, fine in lieu of confiscation of goods, or duty, may be annulled or modified by the Central Government on the application of the person aggrieved5. Penalty or fine in lieu of confiscation of goods cannot, however, enhanced by the Central Government in revision, if it is already enhanced on appeal or by way of revision6; and in any other case, unless the party affected has been given notice to show cause against it within one year from the date of the order sought to be annulled or modified7.

While the number of appeals as of right under the above act is limited there is a multiplicity of proceedings for revision.

1. Section 128(b), Customs Act.

2. Section 128(a), Customs Act.

3. Section 130(1), Customs Act.

4. Section 130(1), Customs Act.

5. Section 131, Customs Act.

6. Section 131(4)(a), Customs Act.

7. Section 131(4)(b), Customs Act.

14.7. There might be other Acts where there may be multiplicity in appeals, though the scope for revision is limited. We do not go into a detailed examination of the scheme of each Acts.

But we place it for the consideration of the Government1 whether, in the interests of speedy disposal of these proceedings and of effective and independent adjudication, a uniform scheme should not be adopted where under there will be one appeal on facts to an officer of sufficiently high status, with an application for revision to an independent tribunal on a point of law. Where the appeal on facts is itself to a Tribunal, the revision could lie to the High Court. But the final revisional authority should, in every case, be totally independent of the executive, and a multiplicity of appeals should be avoided.

1. Matter to be considered by Government.



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