Interrogation and Evidentiary Paradigms under Section 108 of the Customs Act, 1962

Interrogation and Evidentiary Paradigms under Section 108 of the Customs Act, 1962: Constitutional and Jurisprudential Analysis

Introduction

Section 108 of the Customs Act, 1962 (hereinafter “the Act”) authorises any gazetted Customs officer to summon persons to give evidence or produce documents in the course of an enquiry.[1] Since its enactment, the provision has become the fulcrum around which investigative powers of Customs authorities rotate and, concomitantly, the focal point of constitutional challenges predicated mainly on Articles 20(3) and 21 of the Constitution.[2] This article critically analyses the statutory text, the constitutional interface, and the evolving jurisprudence, drawing upon leading Supreme Court and High Court decisions as well as academic commentary.

Statutory Framework and Legislative Intent

Placed in Chapter XIII of the Act—dealing with search, seizure and arrest—Section 108 serves a dual objective: (i) to facilitate fact-finding in matters of smuggling and customs evasion without the delays inherent in ordinary criminal procedure; and (ii) to imbue such enquiries with the solemnity of “judicial proceedings” for the limited purposes of Sections 193 and 228 of the Indian Penal Code.[3] Unlike Sections 161–162 CrPC, the legislature intentionally omitted any embargo on the use of statements at trial, envisaging their substantive evidentiary value subject to safeguards under the Indian Evidence Act, 1872.

Constitutional Interface

Right against Self-Incrimination (Article 20(3))

The seminal decision in Veera Ibrahim v. State of Maharashtra[4] laid down that Article 20(3) is attracted only when a person is formally “accused”. A statement recorded under Section 108 prior to the filing of a complaint does not therefore enjoy the immunity. Subsequent rulings such as Poolpandi v. Superintendent, Central Excise[5] and P.O. Thomas v. Union of India[6] reaffirmed this position, emphasising that compulsion to appear and speak truthfully under the statute is not tantamount to unconstitutional coercion.

Personal Liberty (Article 21)

Arguments that denial of counsel during Section 108 interrogation infringes Article 21 were decisively rejected in Poolpandi, the Court reasoning that economic offences require unhindered investigative techniques and that presence of counsel is not a fundamental right at the enquiry stage. The dictum harmonises with broader custodial-rights jurisprudence yet leaves space for judicial scrutiny where palpable coercion, violence, or prolonged detention is alleged.[7]

Jurisprudential Evolution on Evidentiary Value

Voluntariness, Retractions and Corroboration

In K.I. Pavunny v. Assistant Collector, Central Excise, the Supreme Court upheld conviction primarily on a retracted Section 108 confession, holding that: (a) Customs officers are not “police officers” for Section 25 of the Evidence Act; (b) a retracted confession is admissible if voluntary; and (c) prudence, not law, dictates the need for corroboration.[8] Conversely, where allegations of threat or inducement are substantiated, courts have excluded statements under Section 24 Evidence Act—as illustrated by High-Court decisions like Assistant Collector v. Amrik Singh, wherein extensive cross-examination exposed coercion.[9]

Statements of Co-accused

The Supreme Court in Naresh J. Sukhawani v. Union of India treated a co-accused’s Section 108 statement as substantive evidence against the petitioner, clarifying that Section 30 of the Evidence Act applies with full vigour and that the statement is not relegated to mere corroborative status.[10]

Reverse Burden Context

Although primarily an NDPS precedent, Noor Aga v. State of Punjab underscores that stringent statutes cannot override foundational proof-standards; where prosecution banks on Section 108 statements, it must still satisfy the court of voluntariness and reliability beyond reasonable doubt.[11]

Procedural Dimensions and Investigative Powers

Summons Compliance and Judicial Restraint

Recent High-Court dicta, notably Sampad Narayan Mukherjee v. Union of India and M.M. Exports, caution against premature interference with summons, recognising that the enquiry is investigative and any claim of violation may be pleaded after appearance.[12] Failure to attend attracts penal consequences under Section 174 IPC and may justify arrest under Section 104 of the Act.

Arrest, Anticipatory Bail and Overreach

In Union of India v. Padam Narain Aggarwal the Supreme Court set aside blanket High-Court directions restraining arrest, terming them “illegal, invalid and obstructive”.[13] The ruling demarcates the contours of anticipatory bail: relief must be case-specific, not a charter immunising suspects from legitimate Section 104 arrests triggered by incriminatory Section 108 material.

Critical Appraisal

  • Balance of Power: The jurisprudence largely privileges administrative efficacy over rights-centric concerns, justifying it on the unique nature of economic crime. Yet, the line between enquiry and accusation is increasingly porous, inviting re-examination of the accused threshold doctrine in the era of immediate electronic complaints.
  • Need for Explicit Safeguards: Absence of counsel may be constitutionally tolerable, but provisions akin to Section 164 CrPC—mandating certification of voluntariness by a magistrate—could fortify legitimacy and minimise litigation on retractions.
  • Technological Evidence: With digital documents often summoned, issues of hash-value certification and authenticity (Sections 65A–65B Evidence Act) intersect with Section 108 proceedings, an area yet under-explored judicially.

Conclusion

Section 108 remains an indispensable investigative tool, its robustness reaffirmed through decades of constitutional scrutiny. The Supreme Court’s consistent stance—that the provision does not offend Articles 20(3) and 21—anchors the admissibility of statements and the autonomy of Customs officers. Nevertheless, evolving notions of procedural fairness and technological complexity necessitate calibrated legislative and judicial responses to sustain the delicate equilibrium between sovereign interest in revenue protection and individual civil liberties.

Footnotes

  1. Customs Act, 1962, s. 108.
  2. See generally L.M. Sharma J. in Poolpandi & Ors. v. Superintendent, Central Excise, (1992) SCC (Cri) 620.
  3. Customs Act, 1962, s. 108(4); Indian Penal Code, 1860, ss. 193, 228.
  4. Veera Ibrahim v. State of Maharashtra, (1976) 2 SCC 302.
  5. Poolpandi, supra note 2.
  6. P.O. Thomas & Ors. v. Union of India, 1989 (40) ELT 999 (Ker HC).
  7. Contrast D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 (laying down custodial safeguards) with Poolpandi, supra note 2.
  8. K.I. Pavunny v. Assistant Collector (Hq), Central Excise, (1997) 3 SCC 721.
  9. Assistant Collector, Customs v. Amrik Singh, 2014 ELT (P&H) 301.
  10. Naresh J. Sukhawani v. Union of India, (1996) CrLJ 76 (SC).
  11. Noor Aga v. State of Punjab, (2008) 16 SCC 417.
  12. Sampad Narayan Mukherjee v. Union of India, 2019 SCC OnLine Cal 1022; Commissioner of Customs v. M.M. Exports, (2010) 15 SCC 647.
  13. Union of India v. Padam Narain Aggarwal, (2008) 13 SCC 305.