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Report No. 47

15.81. Recommendation to add public censure.-

An amendment to the Customs Act of a general nature may be inserted to provide for public censure1.

1. Amendment to be drafted.

15.82. Preparation in certain cases under the Customs Act to be an offence.-

We have already recommended1 the insertion of a provision punishing preparation to commit an offence under the Customs Act in certain cases.

1. Para. 15.20, supra.

15.83. Recommendation regarding section 123, Customs Act.-

We wish to refer to a small point concerning section 123(1), Customs Act, which throws on the accused the burden of proving that goods seized from him are not smuggled goods. We wish to point out that it does not cover cases where goods are not seized from the possession of a person, though they are proved to have been in his possession previously. We think that such a situation should also be covered because the principle behind the existing provision is equally applicable.

We, therefore, recommend that section 123(1), Customs Act, should be revised as follows:-

"123. (1) Where any goods to which this section applies-

(a) are seized under this Act in the reasonable belief that they are smuggled goods; or

(b) are proved to have been in the possession of any person before such seizure, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized or in whose possession they are proved to have been before the seizure, as the case may be."

15.83A. Burden of proof of mens rea under Customs Act.-

As recommended already1, a provision shifting the burden of proof may be inserted in the Customs Act. This will be in addition to section 123.

1. Para. 7.12, supra.

15.84. Procedure for trial under Customs Act.-

We shall now refer to a few procedural points relevant to the Customs Act. Cognizance in Customs Cases is taken on complaint. As the Supreme Court has observed1:-

"The Customs Act (52 of 1962) invests the Custom Officer with the power to search premises, to stop and search conveyances and to examine persons, and also with the power to summon persons, to give evidence and to produce documents and (sic) seizure of goods, documents and things which are liable for confiscation. He is also invested with the power to release a person on bail. He is entitled to order confiscation of smuggled goods and impose penalty on persons proved to be guilty of infringing the provisions of section 137...the proceedings before a Magistrate can only be commenced by way of a complaint and not on a report made by a Customs Officer."

1. Ramesh Chandra v. U.P. State, AIR 1970 SC 940, para. 24.

15.85. A suggestion1 made with reference to the Customs Act states that even where a regular trial has to be adopted, the law should be simplified as is done in the cases reported by the police where the trial starts with the filing of the charge-sheet. Under the Customs Act evidence has to be led before a Magistrate before the charges are framed. This itself takes a pretty long time, which should be changed by change of procedure suggested above.

A somewhat similar point was made by an Inspector-General of Police, during oral discussions2.

The matter may, therefore, be dealt with at some length.

1. Collector of Customs, Madras (Letter dated 17-11-1971).

2. Discussions at Madras with the Inspector-General of Police, Madras (November 1971).

15.86. Under the Criminal Procedure Code (as amended in 1955), two different procedures are provided for cases instituted on police report (on the one hand) and other cases1 (on the other hand). In the Report of the Law Commission2 on the Code of Criminal Procedure, a change has been proposed in the definition of 'complaint' in section 4(1)(h) of the Code, by proposing substitution of the words 'police report' for the words 'the report of a police officer', and a definition of "police report" has been proposed to be added as 'the report made by the police officer under section 173 (of the Code)'. This change has been proposed in order to dispel the existing confusion in respect of those reports which the police officers have submitted in cases of unauthorised investigation (e.g. on non-cognizable offences). But this would not alter the status of complaints made by public servants.

1. Contrast section 251A with sections 252 to 259, Criminal Procedure Code.

2. 41st Report of the Law Commission (Criminal Procedure Code), Vol. I.

15.87. For reports submitted to courts under section 173 of the Code of Criminal Procedure, there is a shorter procedure of trial. According to it, the court is authorised to frame a charge immediately on the basis of the report made to it under section 173, after examination of the documents submitted therewith. The reasoning behind this is that in such cases, after the rigorous investigation and recording of statements by the police, there is little necessity of examining witnesses before the charge. There are many departments of the Government apart from the police having powers of search and seizure, powers of recording statements and investigation as have been conferred upon the police under the Code of Criminal Procedure.

Under some Acts like the Customs Act, the powers of the departmental officers are even wider. But, if a prosecution is launched by them in respect of any offence under the respective Acts, the procedure of trial applicable to cases instituted on their 'complaint' (a departmental 'challan', as it is called) is the longer and more elaborate one given in sections 252 to 259 of the Code of Criminal Procedure. This procedure is much elaborate, as the court cannot frame charges in such cases unless witnesses are examined whose evidence, if not rebutted, would otherwise be sufficient to warrant a conyiction to the accused.

There is no doubt some justification for treating these complaints on a different footing from those filed by private individuals. They are more akin to the police "challans" under section 173 of the Code. Having been made after proper investigation, by the public servants concerned-public servants exercising the same powers as the police-they can, with some justification, be treated as police reports, and the procedural advantage of section 251A should be made available to them. At the same time, the proposed change1 might involve numerous consequential changes in the Criminal Procedure Code and cannot be conveniently drafted in this Report.

1. Department can raise the point separately.

15.88. One practical aspect deserves to be considered, that statements made to such public servants may (if the complaints are treated as police reports) come to be regarded as 'confession to a police officer' within section 25, Evidence Act. It is to be noted that judicial decision on section 25, Evidence Act, have, while holding that confessions made to Customs Officers or Excise Officers, are not made to a police officer, relied, inter aria, on the fact that the concerned officers have no power to submit a report on which the Court can take cognizance. That, however, is a matter to be considered separately under the Evidence Act1.

1. To be considered under section 25, Evidence Act.

15.89. Amendment of section 139.-

As already stated1, it is desirable to introduce a presumption as to foreign documents. This affects section 139 of the Customs Act. The section should apply to documents under other laws also2.

1. Para. 15.30, supra.

2. See para. 12.3, supra.

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