Percy Rustomji Basta v. State Of Maharashtra .

C.A 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 Section 120-B IPC, read with Section 135 of the Customs Act, 1962 (Act 52 of 1962) (hereinafter to be referred as “the Act”) and also under Section 135 of the Customs Act in respect of the articles claimed to have been recovered from his possession.

2. The short point that arises for consideration in this appeal is whether Section 24 of the Evidence Act is a bar to the admissibility in evidence of the statement Exhibit T given by the appellant to the Customs Officers on a summons issued to him under Section 108 of the Act.

3. 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 2000 for the charges under Section 120-B IPC, read with Section 135 of the Act. He was also sentenced to undergo one year's rigorous imprisonment and to pay a fine of Rs 2000 for the charge under Section 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 Presidency Magistrate.

4. 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 mechanised sailing vessel and land the 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 of 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. PW 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.

5. 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 4, 6 and 7. It is not necessary to refer to the pleas of Accused 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 Dargah 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 PWs 5 and 19 and forced to put his signature on January 7, 1964, to a statement already got written and prepared by PW 5. He was threatened that if he did not put signature on the said statement, his mother 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 PWs 5 and 19, on January 7, 1964, is Exhibit T. The statement refers 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.

6. We do not think it necessary to refer to Exhibit 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 Exhibit T after finding independent corroboration furnished by other evidence on record in respect of the statements contained in Exhibit T.

7. Objections were taken to the admissibility in evidence of Exhibit T on the ground that it is hit by Article 20(3) and Sections 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 that Exhibit 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 Exhibit T which had already been prepared by PWs 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 Exhibit 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 Exhibit T is not hit either by Article 20(3) or by Sections 24 and 25 of the Evidence Act.

8. The only contention that has been raised before us by Mr ASR Chari, learned counsel for the appellant, is, that in view of Section 24 of the Evidence Act, Exhibit 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 Exhibit T, the conviction is illegal. The other contentions based on Article 20(3) and Section 25 of the Evidence Act which were taken before 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 Exhibit T was recorded by the Customs officials, the appellant was in the position of an accused. It is in evidence that PW 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 Sections 193 and 228 IPC apply. This, according to the learned counsel, amounts to a threat and as the statement Exhibit T has been procured on the basis of such a threat, it is inadmissible in evidence.

9. 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 Exhibit T. The counsel also pointed out that the fact that PW 5, who recorded the statement Exhibit T from the appellant, informed him that he was bound to speak the truth as it was a judicial proceeding to which Section 193 IPC applies, does not amount to any threat in law so as to attract Section 24 of the Evidence Act.

10. We will now refer to the circumstances under which Exhibit 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, 1961. By about 8.30 a.m summons under Section 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 Exhibit T from the appellant continued excepting for a short break of about 2½ hours for lunch, tea and other requirements. The appellant was arrested immediately after his statement Exhibit 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-section (4) of Section 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 Exhibit T contained various incriminating facts regarding the complicity of the appellant with the offences alleged against him. The Inspector of Customs, PW 5, who recorded the statement Exhibit T and PW 19, have both admitted that they questioned the appellant till the statement Exhibit T was finally completed at 8.30 p.m on January 17, 1964. Both of them have also asserted that they had not given any threat or offered any inducement to the appellant before the statement Exhibit T was made. PW 5 has deposed that he drew the attention of the appellant to the last para of the summons issued under Section 108 of the Act. In fact in Exhibit T the appellant states that he had received Summons No. 3 of 1964, dated January 7, 1964, issued to him under Section 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 Section 193 of the Indian Penal Code. PW 5 has further deposed that he had explained to the appellant the provisions of Section 193 IPC 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 PW 5, Mr Chari urged that it is clear that PW 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 Act.

11. Before we refer to Section 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:

“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;

(b) examine any person acquainted with the facts and circumstances of the case.

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 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:

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 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 of 1860).”

12. Section 122 of the Act deals with confiscation of goods and levy of penalty. section 124 deals with the procedusere 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 clauses (a) and (b) and that prosecution is without prejudice to any action taken under the Act.

13. This Court had to consider in Romesh Chandra Mehta v. State of West Bengal (1969) 2 SCR 461, (1970) 72 Bom LR 787 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 Article 20(3) of the Constitution and inadmissible in evidence under Section 25 of the Evidence Act. A further question also arose whether an officer of customs acting under the Act is in any event a police officer within the meaning of Section 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 enquiring 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 Section 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 Section 171-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 Article 20(3) of the Constitution.

14. 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 Section 25 of the Evidence Act. It was emphasised that the proceedings taken by him are for the purpose of holding an enquiry into suspected cases of smuggling 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 Section 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 Sea Customs Act does not stand in the character of a person accused of an offence under Section 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 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 Sections 132, 133, 134 and 135 of the Act. Any statement made under Sections 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.”

15. From this decision it follows that a Customs Officer conducting an inquiry under Section 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”.

16. The same position has been reiterated in the later case of Illias v. Collector of Customs, Madras AIR 1970 SC 1065, (1969) 2 SCR 613, (1970) 1 SCJ 701.

17. Now coming to Section 24 of the Evidence Act, it runs as follows:

“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.”

18. 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;

(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 gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him.

19. 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 Section 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 Romesh Chandra Mehta v. State of West Bengal it is clear that when an inquiry is being conducted under Section 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 Section 24, referred to above, is lacking in the case, as the appellant was not an “accused person”.

20. 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 Section 24 of the Evidence Act because of PW 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. PW 5 has also stated that he explained Section 193 IPC to the appellant. According to the learned Counsel this conduct of PW 5 clearly amounts to a threat being administered to the appellant.

21. It is not in dispute that PW 5, who recorded the confession, is a person in authority within the meaning of Section 24 of the Evidence Act. But the question is whether, when PW 5 drew the attention of the appellant to the fact that the inquiry is a judicial proceeding to which Section 193 IPC 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.

22. 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 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 judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. A person summoned under Section 108 of the Act is bound to appear and state the truth when giving the evidence. If he does not answer he would render himself liable to be prosecuted under Section 228 IPC. If, on the other hand, he answers and gives false evidence, he would be liable to be prosecuted under Section 193 IPC for giving false evidence in a judicial proceeding. In short, a person summoned under Section 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 he noted that a compulsion to speak the truth, even though it may amount to a threat, emanates in this case note from the officer who recorded the statement, but from the provisions of the statute itself. What is necessary to constitute a threat under Section 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 PW 5, who recorded the statement of PW 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 PW 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 Section 193 IPC applies, the appellant was bound to speak the truth when summoned under Section 108 of the Act with the added risk of being prosecuted, if he gave false evidence.

23. 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 Section 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 he does not tell the truth, he may be prosecuted under Section 193 IPC for giving false evidence. This we have held, does not constitute a threat under Section 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 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 application.

24. For all the above reasons we hold that by the mere fact that the Customs Officer PW 5, who recorded the statement Ex. T, explained the provisions of Section 193 IPC 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 Section 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 before us.

25. In the result the appeal fails and is dismissed.