1. Criminal Appeal No. 1759 of 1963, is preferred by original accused No. 5 - Laxman Padma Bhagat : Criminal Appeal No. 53 of 1964, is by Haroon Haji Abdulla, original accused No. 8 : and Criminal Appeal No. 1 of 1964, is by Ayub Kassim Kika. Original accused No. 9. These three appeals can be disposed of by one judgment. They arise out of the judgment of the learned Presidency Magistrate, 19th Court. Esplanade, Bombay, where the aforesaid three appellants along with 15 others were put up for trail. Out of these 18 accused, accused No. 17 was discharged; accused Nos. 14, 15 and 18 - Haji Mahamed Barkati, Haji Sattar and Yusuf Habib had been absconding, and therefore their cases were separated, original accused No. 4, Noor Mohamed Alu Bhati was jointly tried along with the remaining accused, but on the date of the judgment, it was found that he had absconded, and., therefore, his case was separated/ Accused No. 1 Govind Narayan Bengali, who was jointly tried, died after the close of the case but before the pronouncement of the judgment. Accused Nos. 11, 12, 13 and 16 - Shankar Aitwar Koli, Usman Saleh, Adam Budda and Gulam Nabi have been acquitted.
(2) In short, as a result of the judgment only 8 of the accused, namely, accused Nos. 2, 3, 5, 6, 7, 8, 9 and 10 have been convicted of offences under section 120-B. Indian Penal Code, for having conspired to smuggle gold into India without a valid permit and thereby evading duty payable thereon, and to evade the prohibition enacted in this matter by notifications made under certain various enactments. Only accused Nos. 5, 8 and 9 have appealed.
(3) The following facts are no more in dispute, and there is ample evidence establishing them. In April or May 1961, Police Inspector Mr. Bhesadia (P.W. No. 30) attached to the Anti-Corruption and Prohibition Intelligence Bureau, Bombay, received certain information about smuggling operations, and he took certain measures to pursue the information and to arrange for watch. On 13th of August 1961, he received certain information at his residence in Dhobi Talao that smuggled gold was likely to be landed at Versova beach the same night. He, therefore, went to Madh Island at about 4 p.m. in a police car driven by one Rajaram Sawant, the police driver. At about 8-40 p.m., he received information that the smuggled gold was to be landed at Versova Beach. He, therefore, proceeded in his car from Madh Island to Versova beach reaching there at about 9-3- p.m. On reaching the beach, he reserved further information as a result of which he went to the house of Govind Narayan Bengali, the first accused in this case. The house of this Govind is situate in a locality at Versova known as Tare Gally which is close to the Versova beach. The house consists only of one room and a verandah. As Mr. Bhesadia and his driver Rajaram approached the house, the door of the house from outside, kept Rajaram on guard at the dorr, and rushed to the window, the only other opening of the room. At the time, one Ismail Tharu was trying to escape through the window. Bhesadia pushed him, in, called Rajaram and put him on guard at the window, and then opening the door, entered the room, where he found Govind, accused No. 1, his brother Dharma Narayan accused No. 2, his cousin Bhaskar Bhavan Pedhe accused No. 3, Ismail Tharu, a foreigner, and Kashinath, the first witness in this case, P.W. No. 1. Accused Nos. 1 to 3 and Kashinath are fishermen residing in the village Versova. Ismail is a foreigner. Bhesadia also noticed that there was a heap of small gunny bags in a corner of the room. He further found that the gunny bundles were wet and were heavy, he surmised that the gunny bags would contain smuggled gold. He, therefore, sent Rajaram to fetch panchas. Rajaram brought three panchas including panch Minoo Fitter (P.W. No. 12). One of these persons was sent back to Bombay to inform at the houses of the two panchas remaining behind that they had been detained. Bhesadia questioned the inmates of the room. He offered his own search and the search of the panchas but that was declined by these persons. The Bhesadia took the search of the persons of all the five persons in the presence of the panchas. Nothing was found on the four, fishermen, but on the person of the foreigner, that is, Ismail, he found a plastic purse containing Rs. 75 in red currency, Rs. 293 in Indian Currency notes, one envelope and a letter in Gujarati (Exhibit S). This letter is written in code words containing also some figures. The articles were returned. Bhesadia also in the presence of the panchas searched the room as well as the cupboard in the room, but it contained only certain personal papers of the accused No. 1. Bhesadia then sent of the accused No.1 . Bhesadia then sent Rajaram out of search whether any car was waiting to take away the smuggled gold in view of the answers he received from the suspects. Rajaram returned after about an hour and half, by about 11-30 a.m., and reported that he was not able to find any car. Bhesadia again sent Rajaram to phone to his (Bhesaida's office and latter also asked Rajaram to ring up the customs people, as well as his superior officer, one Police superintendent Shete. In response to the telephone messages, Sub-Inspector Lagli, Sub-Inspector Soman and sub-Inspector Kulkarni arrived a little before 2 a.m. Kulkarni was kept one guard, and the other two Sub-Inspectors were sent for making confidential inquiries. At about 2. a.m.,. Assistant Collector of Customs, Mr. Jokhi, an officer of the Central Excise, Randive, Deputy Superintendent of Central Excise (P.W. No. 22), and some other officers of the Central Excise Department arrived. Bhesadia apprised them of the detection of the contraband and the suspects found in the room. Therefore, Jokhi and Randive interrogated these five persons, each one separately, by taking them out of the room. It is the prosecution case that each one was taken by Jokhi and Randive to an adjoining hut at some distance from this house. The questioning continued till about 5-30 a.m. Mr. Warty (P.W. No. 28), Superintendent of the Central Excise by that time arrived along with some other excise officers. It is under the supervision of Mr. Warty that further inquiries in the case have been made Mr. Warty also interrogated these persons in the hut till about six or 6-30 a.m. of the 14th of August 1961. Thereafter, the seventeen bundles inside the room were brought on the verandah adjoining the room, and Mr. Warty proceeded to prepare the panchnama of the property contained in these 17 bundles. The bundles were opened in the presence of the panchas one after another, and it was found that each bundle contained two jackets, each one having small packets stitched inside, in each of which was concealed one gold slab weighing about ten tolas. The slab was of the shape of a biscuit. The gold slabs had marks of foreign refineries thereon. When the total gold found in the 17 bundles was counted, it was found not to tally with the total number of figures contained in the letter (Exhibit S) found on the person of Ismail. Mr. Bhesadia surmised that the figures on the letter represented the weight of the gold. He, therefore, further interrogated in this respect and thereafter Kashinath pointed out the 18th bundle of gold lying in the sand behind the house of Govind, accused No. 1. The bundle was half buried in the sand. The bundle was brought and the gold found in it was similarly concealed in the jacket which was counted. The total number of tolas tallied with the total of the various figures in the letter. The foreign gold smuggled weighed 35,730 tolas valued at Rs. 50,02,200. The smuggled gold is Exhibit 'Z-31' in this case. The gold was sent under armed guard to the Central Excise office in six trunks brought there by Mohandas, another Deputy Superintendent of Central Excise (P.W. No.29). On inspection of this gold in the Mint, it was found of the purity of 999. the preparation of the panchnama continued from 6-30 in the morning till 5 p.m. The panchnama (Exhibit N) prepared in the presence of the panchas is dictated by Warty and was taken down by Mr. Gupte, another Excise Officer, Exhibit N is signed by Mr. Warty and by Bhesadia. It is also signed by accused No.1 Govinda from whose house the property had been seized, as well as by Kashinath, the first prosecution witness in this case.
(4) Now, these five persons in the house of Govinda were also taken to the Central Excise Office situate somewhere nearabout Churchgate. It appears that Mr. Warty had gathered from the interrogation that the gold was brought in a mechanised boat 'Al-Sabri' formerly named 'Sufilla Mohmadi' Mr. Warty, therefore, put a trunk call to the custom officer at Veraval for a intercepting the mechanized boat 'Al-Sabri'. However, 'Al-Sabri' could not be intercepted.
(5) These five persons were detained at the Excise Office for the night and next morning (15th ) the statements of all the five persons have been recorded by different officers. The statement of accused No. 1 Govind at Exhibit Z-27 was recorded by Mr. Rane (P.W. No. 26), Deputy Superintendent of Excise. The statement of Dharma , accused No. 2 at Exhibit Z-28 was recorded by Rane statement of accused No. 3 Bhaskar was recorded by Mohandas (P.W. No. 29). Deputy Superintendent of Excise. The statement of Kashinath was recorded by Karnik, another Deputy Superintendent of Excise (P.W. No. 24), and the statement of Ismail was recorded by Mr. Warty, Superintendent of Excise. The statements of all these persons were recorded by these different officers from morning till noon. They are elaborate and detailed statements.
(6) Before recording these statements, all these five persons were explained the provisions of section 171 A of the Sea Customs Act, 1878, hereinafter referred to as the Act, and it has been noted in these statements that these persons have made these statements realising their responsibility under the provisions of section 171A. All these five persons according to prosecution were allowed to go that same evening, and the record discloses that the five summonses were further issued to the first accused Govind under the provisions of sub-section (1) of section 171A of the Act. They are Exhibits Z-35 to Z-39. Exhibit Z-35 is a summons issued on 15th of August 1961, requiring attendance of Govind on 16th. Exhibit Z-36 is the summons issued on 16th of August 1961 requiring his attendance on 17th. Exhibit Z-37 is the summons issued on 19th of August requiring his attendance on 21st of August 1961. Exhibit Z-38 is the summons issued on 21st requiring his attendance on 22nd of August and Exhibit Z-39 is the summons issued on 22nd August requiring his presence on 23rd of August.
(7) Govinda was arrested on 23rd of August 1961 and produced before the Presidency Magistrate on the same day. He was offered bail but he could not avail of it on the same day. Later, he was released on bail and had been on bail throughout the trial. Accused Nos. 2 and 3 were arrested on 21st August and were produced before the Presidency Magistrate on the same day. They were offered bail, and they availed of it on a later date. neither Ismail, nor Kashinath were arrested. Later, both were cited as witnesses. Kashinath has been examined but Ismail absconded before he was examined in Court. As a result of the information received from these statements, the inquiries further proceeded.
(8) It is the prosecution case that accused No., 5 Laxman Padma Bhagat, accused No. 6 Kashinath Laxman Kapatil, also known as Istucha Kasha, accused No., 7 Mahadev Pandu Rangabhagat and one Devchand Motiram (P.W. No. 2) voluntarily surrendered on 8th of September 1961 and on the same day their statements have been recorded by Mr.Randive (P.W. No. 22). Accused Nos. 5m 6 and 7 were arrested on 11th of September 1961 and produced before the Presidency Magistrate. They were on bail during the trial. Devchand has been examined as prosecution witness No. 2. Similarly, it is the prosecution case that accused No. 9 Ayub Kassim Kika, voluntarily surrendered on 26th November 1961 and gave his written statement in his own hand in Gujarati on 26th of November 1961. On the same day he was arrested and produced before the Magistrate. He was also on bail during the trial. The other accused were found and their statements also have been recorded on various different dates. Except the statement of accused Nos. 14, 15 and 18, the statements of all the remaining accused have been recorded on different dates as and when they were found. It is not necessary for the purpose of this appeal to go in detail as to the dates on which the statements of the remaining accused were recorded. It may be, however, stated that the finding of the accused and the recording of the statements continued till about 29th March 1962.
(9) Certain other investigations were also made, and as a result, a complaint has been filed under section 187A of the Act by Mr. Jokhi, the Assistant Collector of Customs, against the aforesaid 18 accused, for having committed offences under S. 120-B of the Indian Penal Code, read with section 167(81) of the Sea Customs Act, 1878, and section 8(1) of the Foreign Exchange Regulation Act and section 120-B of the Indian penal Code, read with section 8(1) and section 23 of the Foreign Exchange Regulations Act of 1947, and offences under section 167(81) of the Sea Customs Act and offences, under section 167(81) of the sea Customs Act, read with section 109 and section 114 of the Indian Penal Code, and offences under section 8(1) read with section 23 of the Foreign Exchange Regulation Act, 1947, or offences under section 8(1) and section 23 of the Foreign Exchange Regulation Act of 1947 read with section 109 and section 114 of the Indian Penal Code.
(10) The Prosecution case as disclosed at the trial, in brief, may be state : The brains behind the conspiracy were the absconding accused No. 14, Haji Mohamed Barkati, and his brother accused No. 15, Haji Sattar. They are Memon speaking Gujrathi language. They with the help of accused No. 9, Ayub Kassim Kika, who has been referred as their nephew, and accused No,. 1, Govind, a fisherman of Varsova, acted as agents for receiving gold sent from Dubai, a place in Persian Gulf. The modus operandi of the operations was that gold was despatched in mechanised vessels from Dubai and was met in the stream near Bombay by a small mechanised launch arranged therefor. Gold brought from Dubai in the mechanised vessel was tans-shipped in mid-stream in the mechanised launch arranged by Govind. A man from the foreign ship used to come down the small launch to accompany the gold. The gold was then brought to the Varsova beach and then with the help of some fishermen from Varsova was removed to the house of Govind. Therefrom gold was arranged to be shifted by accused Nos. 14 and 15 with the help of accused No. 9 as well as accused No. 8, Haroon Haji Abdulla, who is a resident of Jamsalai, a place in Saurashtra, to different places in Bombay, to the details of which we will presently advert. Both Haji Mohamed as well as Haji Sattar lived in a furnished flat in Duru Mahal, taken by them on a leave and license basis, on the Marine Drive but not on the sea face, in May 1960. The telephone number of this place is 242935. Accused Nos. 14 and 15 also took another flat on leave and licence basis from 1st November 1960 in a building known as 'Avillion' situate at Little Gibbs Road, Malabar Hill, Bombay. Accused No. 9 with the help of one Issak Mohomed had taken a room in a flat of Mohiddinkhan near the J.J. Hospital. The room was taken on leave and licence basis from 1st of August 1960, for 11 months, and according to the prosecution, these three places were the operation centres of accused Nos. 14 and 15. Now, in pursuance of the aforesaid conspiracy to smuggle god, it is the prosecution case that the accused have in fact smuggled gold on four occasions in four trips, to which we will presently advert. It is also the prosecution case that some of the accused i.e. accused Nos. 14, 15, 1 and 9 have participated in smuggling gold in all the four trips. While others have participated in smuggling gold in one or more trips. We would in brief state the part played by these different accused in these four trips as well as trip referred to as Reconnaissance trip in the judgment of the learned Magistrate arranged for the purpose of fixing the place for trans-shipment of gold from the foreign mechanised vessel to the small mechanised launch arranged by Govind for mid-stream.
(11) The reconnaissance Trip : In or about December 1960 or January 1961, one Dosa Malik introduced Haji Sattar, accused No. 15, to accused No. 1, Govind and accused No. 1 agreed to help them to land gold by arranging local boats to trans-ship the contraband gold to the shore. Thereafter accused No. 1 arranged to get the boat of one Ganpat Koli, a fisherman residing in Madh Island and in that both Govind, Kashinath, accused No. 9, Ayub, and accused No. 15, Haji Sattar, as well as Ganapat went in the night previous to the day on which gold was landed for the first time, towards the Colaba-Dandi. There Ayub pointed out a place where Govind should meet the foreign vessel the next day for the trans-shipment of gold. They then came back.
(12) First Trip : The next night, Govind arranged the boat of Shanker, accused No. 11, a fisherman of Varsova.. In that boat Kashinath, P.W. No. 1, Govind, accused No. 1, Ayub, accused No.9 , Hira, accused No, 10, and Haji Sattar, accused No. 15, went to the appointed spot. The foreign vessel came to the Rendezvous at about 8-30 p.m. Haji Sattar flashed a signal by torch. The foreign vessel responded to the signal. Thereafter both the boats were brought together. A rope was thrown from the foreign vessel to Govind's launch. Both Ayub and Haji Sattar then went up the foreign vessel. The foreign vessel then toed Govind's launch towards Bandra side as Govind's launch had developed some trouble. After the repairs were completed, two gunny bags containing 4,000 tolas of gold was trans-shipped from the foreign vessel to Govind's launch. According to the prosecution the value of gold was about Rs. 1,19,903-20 nP. along with gold also came one Ismail. They then returned to Varsova beach and there removed the gold from the launch to Govind's house, and as it was late at night, they slept there. Early morning, next day, the two bundles were opened and the jackets were taken out. Kashinath and Hira, accused No. 10, were asked to put on these jackets under their clothes. Thereafter, Haji Sattar, Ayub, Kashinath, Hira and Ismail left the house of Govind. They travelled by a bus upto the Andheri Railway Station, and at Andheri they boarded a local train and got down at Matunga. At Matunga the party separated Kashinath and Hira were taken by Ayub in a taxi to his room near the J.J. Hospital. There, Kashinath and Hira removed the jackets and handed them over to accused No. 9 Ayub. Ayub paid Rs. 5 each to these two persons. Then Kashinath and Hira returned to Govind's house at Varsova. At that time, at the house of Govind were sitting, Devchand, P.W. No. 2, and Laxman Padma, accused No. 5. On that evening, Ismail returned to Dubai. Kashinath reached him in a country boat to the foreign vessel which was standing in the mid stream waiting for him. Three or four days thereafter, Govind paid Rs. 100 to Kashinath. Thus, according to the prosecution, in the first trip, accused Nos. 1, 9, 10, 15, Kashinath and Ismail participated. It may be stated that accused No.11, Shankar, whose boat was used in this trip, had also gone in the boat, and therefore, it is the prosecution case that he also had participated in this trip.
(13) The Second Trip : This trip took place sometimes in April or May 1961. Govind had arranged the boat of one Dharma Pandu, P.W. No. 3. In this boat travelled Kashinath, Dharma Pandu and his two or three servants. The boat was taken at night to another place in the mid-stream called Utran near Marava. The foreign vessel described by the witness as 'white mechanised launch' came there. After the identify had been established by torched signals, some persons from the foreign vessel asked as to who were in the small launch. Kashinath replied that he was Govind's man. A rope was then flung down and the two boats were brought together. Eight packets of gold were then trans-shipped from the foreign vessel to the local boat. These 8 packets contained 15,000 tolas of gold valued at Rs. 12 lacs. Ismail also came down to the local boat from the foreign vessel. They all then returned to the Varsova beach. On the shore were present Govind, accused No. 1, Devchand, P.W. No. 2, Laxman Padma accused No. 5, and Haji Sattar, accused No. 15. Gold was then carried to the house of Govind. There, a big blue car with a white top was waiting. Ayub accused No. 9, was sitting in the car. The 8 packets containing gold were put in the luggage booth of this car, and in this car went Ayub, accused No. 9 Haji Sattar, accused No. 15, and Ismail. This time, gold was carried in this car to the flat of one Kantilal at Vile Parle. For this trip Kashinath received Rs. 500 from Govind. Thus, according to the prosecution, in this second trip, accused No.1, accused No.5, accused No. 9, accused No. 15, Khasinath, P.W. 1, Devchand, P.W. No. 2, and Dharma Pandu, P.W. No. 3and Ismail participated.
(14) Third Trip : About 9 or 10 days after the second trip, Govind against engaged the boat of Dharma Pandu. In this trip, at about 7 or 7-30 p.m. Kashinath, Dharma Pandu and his two or three servants went to another place known as Aksa Light House. The foreign vessel 'Safina Mahmedi' was there. The same procedure was followed and this time, 14 bags containing old were trans-shipped to the local boat of Dharma Pandu. This time., however, Ismail did not come, to the local boat, but instead, Noor Mahmed, accused No.4, came in the local boat. They then returned to the Varsova beach. On the beach were waiting accused No. 1, Govind, accused No. 5, Laxman, accused No. 8, Harroon, accused No,9 , Ayub, accused No. 15, Haji Sattar. Gold was then carried by them behind the house of Govind and there put in another car, a black car, and in that car went Haroon, accused No. 8, Ayub accused No. 9, Noor Mahomed, accused No. 4, Haji Sattar, accused No. 15. The car was driven by Ayub. Thus, according to the prosecution, in the smuggling of gold in this trip participated accused Nos. 1, 4, 5, 8, 9 and 15, and prosecution witnesses Kashinath and Dharma Pandu. The gold brought in this trip was 28,000 tolas valued at Rs. 39,20,000.
(15) Fourth Trip : And this brings us to the 4th trip, when Inspector Bhesadia discovered the smuggling. In this trip Govind engaged the boat of Hira., and in this boat on 13th August 1961, travelled Kashinath, accused No. 6, accused No.7, and Devchand. The local boat this time went to another place called Tera, very near the Varsova beach. After the usual procedure of signals , both the boats were brought together and 18 packets tied in gunny bags were trans-shipped from the foreign vessel to the local boat. Ismail came in the local boat. On the shore were present accused No.1, Govind, accused No. 5, Laxman, accused No. 10, Hira and accused Nos. 4, 8 and 9 were waiting on the road with a car nearby. Govind and Kashinath took Ismail to Govind's house. Then both of them returned and the 18 packets of gold were then carried by Kashinath, Govind Dharma, accused No. 2, Bhaskar, accused No. 3, accused No. 5, Laxman Hira, accused No. 10 and one Kishan, and brought to the rear of the house of Govind; and while the packets were being taken inside the house of Govind, Inspector Bhesadia raided the place. By the time Bhesadia had come, 17 bags were taken inside the house of Govind, and only one was lying outside. On realising that Bhesadia had come, others ran away and only accused Nos. 1, 2, 3 and Kashinath and Ismail were found there. Thus, in the smuggling of gold in this trip, according to the prosecution, accused Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 participated. So also prosecution witnesses Kashinath and Devcahnd and Ismail participated. These are the overacts on which the prosecution relies in support of its case.
(16) Now, the defence of the accused in general was one of denial. According to accused No. 1 to 3, gold was lying in the beach and it was Bhesadia who brought it into his (Govind's) house. The other accused denied their presence or participation in any of these trips. According to them, their statements were taken by coercion and by administering threats to them. It is not necessary to go into details of the defence raised by these various accused. We will refer to the defence of these three appellants when we deal with the evidence against each of the three appellants.
(17-28) Now, the evidence tendered by the prosecution in support of its cases may be briefly stated : (After narration of the evidence His Lordship proceeded).
(29) Now, it is not in dispute before us that on the aforesaid evidence, a conspiracy to smuggle gold evading the prohibition as well as defrauding the Government of its dues has been clearly established. It is also not in dispute that such a conspiracy did exist between some unknown persons in the persian Gulf, accused Nos. 14 and 15, and the persons found in the house of Govind at the time when gold was seized on 13th August 1961, i.e., accused Nos. 1 to 3, Kashinath and Ismail. The only question that has been urged before us on behalf of the appellants-accused Nos. 5, 8, and 9 is that the evidence on record does not establish that these accused had in any manner participated in the conspiracy or were in any manner would, therefore, in brief state the prosecution case against each of the three accused and the evidence on the basis of which the learned Magistrate has convicted them.
(30) Accused No. 5 : Laxman Padma Bhagat is a fisherman of Varsova. According the prosecution, he has participated in the 2nd, 3rd and the 4th trips. He was waiting at the shore when gold was brought in a local boat to the shore of Varsova in the second trip. He was also waiting at the shore when the local boat brought gold to the shore of Varsova in the third trip. He thereafter carried the packages from the shore to the house of Govind and then put them in the luggage booth of the car. In the 4th trip also he removed gold from the shore to the house of Accused No. 1, Govind. But when he discovered that the police party had come, he along with accused Nos. 6 and 7 and witness Devchand ran away. The prosecution also alleges that he had participated in the transfer of the mechanised vessel 'Safina Mohamedei' to accused No. 3. The evidence on the basis of which the prosecution has place reliance to prove these overt acts against accused No. 5 , is the evidence of these two witnesses Kashinath and Devchand. The confession of accused No. 5 himself recorded by Ranadive on the 8th September 1961, is Exhibit Z-18. The confession of the co-accused Nos. 1, 3, 6, 7 and 10 in support of the case. We have already stated that the defence is one of denial, and the accused has stated that he had not made any voluntary confession. The learned Magistrate has based the conviction on the basis of the evidence of Kashinath and Devchand as well as the confession of accused No. 5 and the confessions of the co-accused Nos. 1,2, 3, 6, 7 and 10.
(31) Accused No. 8 : The case of the prosecution against the accused No. 8 is that he had participated in the third trip as well as the fourth trip. In the third trip he came with accused No. 15. Accused No. 15 had introduced him to accused No. 1 as the man of his confidence. After gold had been placed in the car, he along with accused No. 9, accused No. 15 and accused No. 4, went in that car. In the 4th trip, he was waiting near the house of accused No. 1 with a car, to carry gold. He and Ismail had some talk, but as the police raided Govind's house, he ran away. The evidence on which reliance has been placed by the prosecution is the evidence of Kashinath, the confession of Govind, accused No.1, and the confession of Govind, accused No.1, and the confession of accused No. 4. The prosecution also relies on the conduct or attitude adopted by accused No. 8 in giving replies to the show-cause notice issued to him, as to why the gold found on the night of 13th should be confiscated. The learned Magistrate has founded the conviction on the evidence of Kashinath, and the confessions of co-accused Nos. 1 and 4 only.
(32) Accused No. 9 : The prosecution case against accused No. 9 had been that he had participated in all the trips as well as the reconnaissance trip. It is he who had fixed the place of rendezvous between the foreign vessel and the local boat. In the first, trip, he along with others went in the local boat to meet the foreign vessel at the place fixed on the previous day. He and accused No. l5 then boarded the foreign vessel and these two persons along with gold and one Ismail returned back to Varsova in the local boat. On that night, they slept in the house of Govind, and next morning Kashinath was asked to put on 2 jackets and Hira was asked to put on 2 Jackets under their clothes and then Kashinath, Hira, accused No. 15, Ismail and accused No., 9 left Varsova by bus and came to Andheri, and from Andheri they went by local train to Matunga. There, accused No. 9, Kashinath and Hira went in a taxi and Ismail and accused No. 15, went in a different way. Accused No. 9, then took Kashinath and Hira to his room, and there Kashinath and Hira gave the two jackets to accused No, 9 which he put in a steel almirah in his room. Accused No., 9 then gave them Rs. 5 each. In the second trip, accused No. 9 along with accused No. 15 were waiting in the car, and he along with accused No. 15 carried gold in that car, after it had been pout in the luggage booth. In the third trip also he came in the car and carried gold in the car. At this time, it is accused No., 9 who himself drove the car. In the fourth trip also he had gone to the house of Govind and was waiting near the car to carry gold, along with accused No. 8. But as the police raided the house of Govind, he along with accused No. 8 ran away. The evidence on which reliance has been placed by the prosecution is the evidence of Kashinath, his own confession. Exhibit Z-33 and the confession, of accused Nos. 1, 4 and 10. Besides this, the prosecution has also referred to the evidence of his landlord Mohiddinkhan, in whose flats he was residing, as well as the evidence of estate agent. Dave.......alim, the motor driver and Yusuf the cook, to show his close association with accused Nos. 14 and 15. The learned Magistrate has principally founded the conviction on the evidence of Kashinath, confessions of accused No. 9 and those of co-accused Nos. 1 and 10 read with the aforesaid evidence.
(33) Before we consider all this evidence on merits, it is necessary to deal with legal agreements advanced as to the admissibility of certain evidence. This case has been elaborately argued by Mr. Kavlekar, learned Counsel for the accused No.. 8, Mr. Jethmalani, learned Counsel for accused No.5, and Mr. Pardiwalla, learned counsel for accused No., 9. We will first deal with the contentions which have been raised and/or adopted by counsel for all the accused.
(34) Regarding the admissibility of confessions of accused Nos. 5, 8 and 9 as against themselves as well as the confessions of their co-accused in the first instance, it is contended that under section 25 of the Indian Evidence Act, these confessions are inadmissible in evidence. That section provides that no confession made to a police officer shall be proved as against a person accused of any offence. We have already stated that the confessions have been recorded either by Warty, Superintendent in the Central Excise Department, or by Deputy Superintendents, Randive, Rane and Mohandas, also of the Central Excise Department. It is the agreement of Mr. Jethmalani that on a true construction of the provisions of the Evidence Act, and Central Excise Act, an officer of the Central Excise Department is a police officer within the the meaning of S. 25 of the Act. Reliance in this connection is placed on the decision reported in Raja Ram Jaiswal v. State of Bihar : 1964CriLJ705 , Mr. Gandhi, learned Counsel for the prosecution, on the other hand, contends that on a true construction of the provisions of the Central Excise Act, an officer of the Central Excise is not a police officer within the meaning of section 25 of the Evidence Act, in the alternative, he further argued that at any rate, in dealing with this case, the officers concerned were not acting in their capacity as Customs officers, and that a Customs officer is not a police officer. He has placed reliance in support of his contention on the decision of Their Lordships of the Supreme Court in State of Punjab v. Barkat Ram : 3SCR338 . It is not in dispute that the aforesaid officers who have recorded the confessions are officers of the Central Excise Department. The first question,. therefore, that arises is whether they are also Customs Officers. There can hardly be any dispute that the present case which has been inquired into by them is a case falling under the Customs Act. The prosecution itself ...............offences falling under section 167 (81 of the Sea Customs Act read with section 120. I.P.C. Mr. Gandhi in the course of his agreement has brought to our notice two notifications on which he places reliance to show that these officers are also officers of Customs Department. The first notification is issued by the Central Board of Revenue, bearing C.B.R. Notification No. 56 Customs., dated 24th July 1951, and No. 33, dated 1st March 1952 and No. 77-Customs dated 26th September 1953. It is issued by the Central Board of Revenue in exercise of the powers conferred on it by sub-section (1) of section 3 of the Land Customs Act. 1924. Sub-section (1) of section 3 of that Act provides that the Central Government may by notification in the official gazette, appoint, for any area adjoining a foreign frontier and specified in the notification, a person to be the Collector of Land Customs and such other persons as it thinks fit to be Land Customs Officers. Sub-section (2) of section 3 empowers the Central Government to delegate its aforesaid powers of appointment to the Chief Customs authority. It is not in dispute that the Chief Customs authority is the Central Board of Revenue. It is also not in dispute that the Central Government had validly delegated its powers under sub-s. (1) of S. 3 to the Central Board of Revenue. Now, by the aforesaid notification No. 56-Customs, dated 24th July 1951, the Central Board of Revenue appointed all Deputy Collectors, Assistant Collectors, Headquarters Assistant Collectors, Superintendents, Deputy Superintendents. Inspectors, Nakedars, Supervisory, Range Officers. Assistant Range Officers, Woman Searchers, Jamadars, Petty Officers, Amaldar, Sepoys and Peons, including all the officers of Central Excise employed for the time being in Central Excise Preventive Intelligence work and attached to the Headquarters of the Collectorate of Central Excise, Delhi, Calcutta, Patna, Shillong, Madras, Bombay and Baroda, to be Land Customs Officers within the jurisdiction of the respective Collectors of Land Customs under whom they were working. It is not in dispute that Mr. Warty, Superintendent and the Deputy Superintendents, who had recorded the confessions, had been working at the material time at the headquarters of the Collectorate of Central Excise, Bombay. It is also not in dispute that they had been doing the Central Excise Preventive Intelligence work at the relevant time. By reason of this notification, therefore, the aforesaid officers are also the Land Customs Officers within the jurisdiction of the Collectorate of Bombay. Then we come to the second notification dated 29th September 1951. This notification is issued under S.6 of the Sea Customs Act, and it is issued by the Central Government in exercise of its powers under section 6 of the Sea Customs Act, provides that 'The Central Government may appoint such persons as it thinks fit to be officers of Customs, and to exercise the powers conferred, and perform the duties imposed, by this Act, on such officers. Now, in exercise of this power, the aforesaid notifications has been issued, and the material part of the notification reads:
The Central Government hereby appoints all the Land Customs Officers who have been appointed or may be appointed from time to time to be such under sub-s(1) of section 3 of the Land Customs Act, 1924 (XIX of 1924), to be officers of Customs for their respective jurisdictions and to exercise the powers conferred and to perform the duties imposed on such officers by the first named Act.'
The effect of this notification is that all persons who have been appointed under section 3 of the Land Customs Act, as Land Customs Officers, are, by virtue of this notification, automatically appointed as Officers under the Sea Customs Act, Mr., Pardiwalla, however, argues that on reading these two notifications, it may appear that the officers who have recorded the confessions were officers under the Land Customs Act, but they have not been in law validly appointed officers under the Sea Customs Act by reason of the notification dated 29th September 1951. According to Mr. Pardiwalla, the Central Government has no power under section 6 to appoint an officer by a notification. According to him the appointment must be by name. The agreement is founded on the difference in the language between sub-s(1) of section 3 of the Land Customs Act and the language used in section 6 of the Sea Customs Act. It is his agreement that sub-s(1) of section 3 of the Land Customs Act mentions 'by a notification', while in S. 6 of the Sea Customs Act such a phraseology has not been used. It is true that the words 'by a notification' do not occur in section 6 of the Sea Customs Act. But then, the section also does not prescribe any particular mode by which an officer of Customs is to be appointed. The section neither says 'by a notification' nor 'by name'. So also it does not mention that the appointment is to be made by making a separate order of appointment for each individual. Thus, there being no mode of appointment, prescribed in section 6 of the Sea Customs Act, it could be reasonably presumed that the Legislature has left it open to the Central Government to adopt any mode of appointment. It may make a general order of appointment by issuing a notification, or if found convenient, it may make appointment by issuing an order individually appointing any individual person named in the order to be an officer. In our opinion, therefore, the agreement of Mr. Pardiwalla as to the invalidity of appointment of these officers as Customs Officers under this notification must fail. In our opinion, these officers were, at the material time, validly appointed officers under the Sea Customs Act, and therefore they were competent to exercise power conferred on them by the provisions of the Sea Customs Act. It is next agreement by Mr. Pardiwalla that it may be that these officers and were validly appointed Customs Officers and were competent to exercise the powers conferred on them by the Sea Customs Act but nonetheless, they did not cease to be Officers of the Central Excise Department; officers of the Central Excise Department are police officers within the meaning of S. 25 of the Evidence Act, and therefore, even though these officers of the Central Excise Department were acting in their capacity as officers under the Sea Customs Act and exercising powers thereunder they did not cease to be police officers. The agreement raises two questions. The first question, therefore, is whether an officer in the Central Excise Department is a police officer within the meaning of section 25 of the Evidence Act. If the answer to the first question is in the affirmative, the second question that arises is whether an officer of the Central Excise Department when acting in his capacity of an officer under the Sea Customs Act, still continues to be a police officer. We have already stated that the decision on which reliance has been placed in support of the contention that the officers of the Central Excise are police officers is reported in : 1964CriLJ705 . Before turning to this decision, and the earlier decisions of Their Lordships in Barkat Ram's case, : 3SCR338 it would be convenient first to refer to certain provisions of the Central Excises and Salt Act, hereinafter referred to as the Central Excise Act, on the basis of which this contention is founded.
(35) Chapter III of the Central Excise Act, deals with the powers and duties of officers and landholders.
Section 18 empowers the Central Government to confer power on the Central Excise Officer of arresting any person whom he has reason to believe to be liable to punishment under this Act. Section 14(1) empowers the Central Excise officer duly empowered by the Central Government in this behalf, to summon any person whose attendance he considers necessary either to give evidence or to produce a document. Sub-s. (2) of S. 14 provides that all persons so summoned shall be bound to attend, either in person or by an authorised agent, and are also bound to state the truth upon any subject respecting which they are examined, and also are bound to produce documents in their possession. Sub-s. (3) provides that every such inquiry as aforesaid shall be deemed to be a 'judicial proceeding' within the meaning of S. 193 and S. 228 of the Indian Penal Code. Section 15 provides that all officers of police and Customs and all officers of Government engaged in the collection of land revenue and village officers are required to assist the Central Excise Officers in the execution of their duties under that Act. Sections 16 and 17 are not material. Section 18 provides that all searches made under this Act or any rules made thereunder, and all arrests made under this Act, shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1989, relating respectively to searches and arrests made under that Code. Section 19 provides that every person arrested under this Act, shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate, or if there is no such Central Excise officer within a reasonable distance, to the officer in charge of the nearest police station. Pausing here, the examination of these sections shows that it is not every Central Excise Officer who is empowered to arrest a person or is empowered to issue a summons. It is only those officers of the Central Excise on which such power is conferred by the Central Government. Further, it is clear that the officer of the Central Excise who is empowered to arrest would not necessarily be an officer empowered to send arrested person to the nearest Magistrate. What section 19 provides is that when a person has been arrested by a Central Excise Officer, he must be forwarded without delay to the nearest Central Excise Officer who has been empowered to send persons arrested to a Magistrate. It is only if such an officer is not found within a reasonable distance that he is empowered to send him to the nearest police station. Section 20 provides that the police officer in charge of the police station to whom any person is forwarded under section 19, shall either admit him to bail to appear before the Magistrate having jurisdiction, or in default of bail forward him in custody to such Magistrate. Section 21, on which the principal agreement is founded, reads :-
'21. (1) When any person is forwarded under section 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him.
(2) For this purpose the Central Excise Officer may exercise same powers and shall be subject to the same provisions as the office-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case:
Provided that -
(a) if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate;
(b) If it appears to the Central Excise Officer that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the Central Excise Officer may direct, to appear, if and when so required before the Magistrate, having jurisdiction, and shall make a full report of all the particulars of the case to his official superior.'
It is the agreement of Mr. Jethmalani that section 21 confers on certain officers of the Central Excise powers of the officer in charge of a police station. He is empowered to exercise all the powers which an officer of the police station can exercise under the Criminal Procedure Code, in investigating a cognizable offence. He is empowered to grant bail to the suspect. There is, in fact, no difference between such officer of the Central Excise and an officer-in-charge of a police station. The case, therefore, fully falls within the decisions of Their Lordships of the Supreme Court in : 1964CriLJ705 .
(36) The said decision in Jaiswala's case relates to the case arising out of the Bihar and Orissa Excise Act (2 of 1915). Facts in brief of that case were : a car was stopped by Excise Inspector, Sinha, on the Bayley Road, near the New Secretariat, Patna, at about 10 p.m. at night. The car belonged to the appellant's brother, and from the car, contraband Nepali Ganja was recovered. The material evidence incriminating the appellant was his confessional statement recorded by the Excise Inspector, and the question that arose was whether the confession was inadmissible in evidence by reason of the provisions of section 25 of the Evidence Act. The contention raised was that the Excise Inspector was a police officer within the meaning of section 25 of the Evidence Act. After examining the provisions of the Bihar and Orissa Act the leading judgment summarised them in the following terms:
'Thus he can exercise all the powers which an officer-in-charge of a police station can exercise under Chapter XIV of the Code of Criminal Procedure. He can investigate into offences, record statements of the persons questioned by him., make searches, seize any articles connected with an offence under the Excise Act, arrest an accused person, grant him bail, send him up for trial before a Magistrate, file a charge sheet and so on. Thus his position in so far as offences under the Excise Act, committed within the area to which his appointment extends are concerned is not different from that of an officer-in-charge of a police station. As regards these offences not only is he charged with the duty of preventing their commission but also with their detection and is for these purposes empowered to act in all respects as an officer-in-charge of a police station. No doubt unlike an officer-in-charge of a police station, he is not charged with the duty of the maintenance of law and order nor can he exercise the powers of such officer with respect to offences under the general law or under any other special laws. But all the same, in so far as offences under the Excise Act are concerned, there is no distinction whatsoever in the nature of the powers he exercises and those which a police officer exercises in relation to offences which it is his duty to prevent and bring to light. It would be logical, therefore, to hold that a confession recorded by him during an investigation into an excise offence cannot reasonably be regarded as anything different from a confession to a police officer. For, in conducting the investigation, he exercises the powers of a police officer and the act itself deems him to be a police officer, even though he does not belong to the police force constituted under the police Act.'
It is clear from the aforesaid observations that the expression 'police officer' in section 25 of the Evidence Act is not confined only to such officers who are appointed under the Indian Police Act, but includes also other officers who exercise the same powers as that of a police officer of a police station in respect of investigation of certain offences. The confessions recorded by them in exercise of the power of investigation into the offences would be inadmissible in evidence under section 25 of the Evidence Act. the mere fact that they are also enjoined with duties other than investigating certain offences would not be a good reason for holding that they are not police officers provided the powers of investigation exercised by them are the powers of investigation under the Criminal Procedure Code, which are exercisable by a police officer-in-charge of the police station, The reason therefor, given by Their Lordships is in following terms :
'The test for determining whether such a person is a 'police officer' for the purpose of section 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which a re conferred on him or which are exercisable by him because he is deemed to be an officer-in-charge of police station establish a direct or substantial relationship with the prohibition enacted by S. 25, that is, the recording of a confession. In other words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or a delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys. These questions may perhaps be relevant for consideration where the powers of a police officer conferred upon him are of a very limited character and are not by themselves sufficient to facilitate the obtaining by him of a confession.'
Their Lordships proceeded to contra-distinguish the provisions of the Sea Customs Act and the provisions of the Bihar and Orissa Excise Act, and pointed out that the officers under the Sea Customs Act, though they have certain powers of investigation, are not clothed with the powers of a police officer of investigation under the Criminal Procedure Code. They are also not empowered to grant bail, nor can they send a charge-sheet to a Magistrate forwarding a person for trial. It is indeed true that under section 21 of the Central Excise Act, officers mentioned therein have power to grant bail. It is also true that sub-section (2) thereof provides that the said officers may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case. But still there is a difference between the provisions of section 21 of the Central Excise Act and the provisions of the Bihar Excise Act which was being considered by Their Lordships. The Excise Officer in the case which was considered by Their Lordships possessed all the powers under the Criminal Procedure Code, relating to investigation of offences, including that of sending a charge-sheet to a Magistrate and forwarding a person for trial; whereas, section 21 has not expressly conferred that power on an officer under Central Excise Act. He exercises powers under the Code of Criminal Procedure only in respect of investigation. There is no power in terms conferred on him to make a report or send a charge-sheet to a Magistrate, forwarding a person for trial. It, therefore, cannot be said that the decision on which reliance has been placed fully supports the agreement of Mr. Jethmalani that an officer of Central Excise is a police officer within the meaning of S. 25 of the Evidence Act. It must, however, be conceded that the Central Excise Officer having power to grant bail may enable him to exercise authority over the arrested person and influence his conduct if he so wishes, and in that sense. It is possible to argue that that power would tend to facilitate obtaining a confession from the suspect. It is, however, not necessary for us the purposes of this case to decide the question finally. It is clear on the reading of section 21 as well as the decision of Their Lordships that an officer of the Central Excise is not a police officer for all purposes, though he may be a police officer so far as he conducts an investigation in respect of offences under the Excise Act. Even when under the Bihar Act all the totality of power of investigation under the Criminal Procedure Code including power of making a report to Magistrate, had been conferred on an Excise Officer under that Act, Their Lordships have not held that he is a police officer for all purposes. Their Lordships observed : 'It would be logical, therefore to hold that a confession recorded by him during an investigation into an excise offence cannot reasonably be regarded as anything different from a confession to a police officer.' It is only a confession recorded by an officer investigating an excise offence that falls under section 25 of the Evidence Act. We have already pointed out that the officers in recording the confessions were acting in their capacity as Customs Officers. It is not in dispute that the Customs Officers have no power to grant bail, nor have they any power to submit a report on the conclusion of the investigation to a Magistrate, forwarding a person for trial. On the other hand, section 187-A of the Sea Customs Act, provides that no Court shall take cognizance of any offence relating to smuggling of goods punishable under item 81 of the Schedule to section 167, except upon complaint in writing, made by the Chief Customs Officer or any other officer of Customs not lower in rank than an Assistant Collector of Customs. The power to file a complaint is conferred only on high officers of Customs Department, like the Chief Customs Officer or an officer, not lower in rank than an Assistant Collector of Customs. The confessions in this case are recorded by the Superintendent or Deputy Superintendents. It is not in dispute that they are officers lower in rank than the Assistant Collector of Customs. Their Lordships of the Supreme Court in Barkat Ram's case have considered the provisions of the Sea Customs Act, and have held that the Customs Officer is not a police officer within the meaning of section 25 of the Evidence Act. Section 21 of the Central Excise Act also does not make an officer of the Central Excise Act a police officer for all purposes. His powers of arrest or summoning persons for examining them a witnesses or searches are only in respect of offences under the Central Excise Act. After the arrest of the person he is to be forwarded to a Central Excise Officer empowered to send the person to a Magistrate, and it is only this officer who is empowered to inquire in to the charge against the person who is reasonably believed to be liable to punishment under the Excise Act, and it is only for this limited purpose that the powers of investigation of a police officer-in-charge of a police station are conferred on him, and empowered to exercise those powers under the Code of Criminal Procedure. The fiction thus enacted in this section cannot be carried further than the purposes for which it is enacted. It is clear that the said Central Excise Officers who are not by appointment police officers are empowered to exercise the same powers as are exercisable by an Officer-in-charge of police station only in respect of investigation of offences under the Central Excise Act. It, therefore, follows that even assuming that an Excise Officer empowered to exercise powers under section 21 of the Central Excise Act, is a police officer within the meaning of section 25 of the Evidence Act, while investigating offences under the Central Excise Act, it cannot be said that he is a police officer while discharging his duties under the Customs Act. We have already stated that the officers who have recorded the statements of the accused persons as well as witnesses in this case were at the time acting in their capacity as Customs Officers and not in their capacity as officers of the Central Excise, nor in discharge of their duties under the Central Excise Act. We have also held that they have been validly appointed customs officers under section 6 of the Sea Customs Act. We have also pointed out that Their Lordships in Barkat Ram's case have held that the Customs Officers are not police officers within the meaning of section 25 of the Evidence Act. The confessions recorded by these officers, therefore, in our judgment, are not hit by the provisions, of section 25 of the Evidence Act.
(37) Before proceeding with the other contention, we would like to state that Mr. Jethmalani has also in this respect referred to the decision reported in Emperor v. Mallangowda 19 Bom LR 683 : : AIR1917Bom130 . In our opinion, the case has no application to the facts of the present case. In that case, it has been held that a confession made to a regular police officer, whether that police officer was investigating officer or not, while in police custody was indmissible, both under Ss. 25 and 26 of the Evidence Act., We have already held that the Central Excise Officers when discharging their duties under the Sea Customs Act in their capacity as Customs Officers are not under Central Excise Act.
(38) It is next urged by Mr. Jethmalani that these confessions are also hit by the provisions of section 24 of the Evidence Act. That section provides.
'24. 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 an 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.'
To attract the provisions of section 24, the following facts need 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 caused or 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 it would appear to the Court that the accused in making the confession believed or supposed that he would by making it, gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. All these conditions must cumulatively exist. Mr. Jethmalani first contends that the confessions have been obtained under a threat within the meaning of section 24 of the Evidence Act. The threat has been given by the officers who have recorded the statement. They are persons in authority within the meaning of section 24 . The threat which was given by them, according to Mr. Jethmalani, is the threat contained in section 171A of the Sea Customs Act, which had been explained by the officers concerned to each of the persons whose confession has been recorded.. It is not in dispute that the officers who have recorded confessions are persons in authority within the meaning of section 24. But it has, however, been vehemently contended by Mr. Gandhi that there is no threat contained in section 171A of the Sea customs Act. To appreciate the agreements of Counsel for parties, it is necessary to read section 171-A of the Sea Customs Act. Section 171-A, in so far as it is material, provides:
'171A (1). Any officer of Customs duly employed in the prevention of smuggling, shall have power to summon any person whose attendance he considers necessary either to give evidence ........................in any inquiry which such officer is making in connection with the smuggling of any goods.
(3) .......................................................and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements..............................
Provided that the exemption under section 132 of the Code of Civil Procedure, 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.'
In short the section empowers the Customs Officer to summon any person to give evidence in any inquiry in connection with the smuggling of goods save and except pardanashin woman., The inquiry made under this section is deemed to be a judicial inquiry within the meaning of section 193 and 228, Indian Penal Code. A person so summoned is bound to appear and state the truth in giving evidence. If he does not answer, he would render himself liable to be prosecuted under section 228, Indian Penal Code, for causing interruption to a public servant in such a judicial proceeding. If, on the other hand, he answers or gives false evidence, he would be liable to be prosecuted under section 193, Indian Penal Code, for giving false evidence in a judicial proceeding. In short, a person summoned under section 171A, is told under the threat of criminal prosecution that he must state what he knows and he must state that truthfully. It is the agreement of Mr. Jethmalani that this compulsion contained in the provisions of section 171A is threat within the meaning of section 24 of the Evidence Act. To each of the accused person the provisions of section 171A have been explained by the officers who recorded their statements. A threat, therefore, was given by the person in authority who has recorded the statement. The confessions are, therefore, hit by the provisions of section 24 and inadmissible in evidence. In support of this agreement, Mr. Jethamalani also referred us to the provisions of section 164 of the Criminal Procedure Code, relating to the recording of confession by a Magistrate. He argued that when a person accused of an offence is produced before a Magistrate for recording his confession, the Magistrate is bound to tell accused that he (accused) is not bound to make a confession; if he makes a confession, that would be used against him. According to Mr. Jethmalani, law does not contemplate securing of a confession under compulsion. There can hardly be any dispute that there is a certain degree of compulsion implicit in the provisions of this section. If the person summoned under section 171A refuses to answer questions, he might be prosecuted under section 228 of the Indian Penal Code, for causing interruption to a public servant sitting in a stage of a judicial proceeding. If he makes a false statement, he is liable to be prosecuted under section 193, Indian Penal Code. The question, however, to be considered is whether this compulsion is a threat within the meaning of section 24 of the Evidence Act. It is the agreement of Mr. Gandhi that section 171A only embodies the principle under section 191, Indian Penal Code, and bringing the provisions of section 171A to the notice of the person who is examined, amounts only to bring to his notice the provisions of law for his own, benefit, and there is not threat involved therein. He also placed reliance on a decision of this Court in Civil Rev. Appln. No. 899 of 1962, D/-21-1-1963 (Bom). Section 191, Indian Penal Code, in our opinion, only defines what amounts to 'giving a false evidence'. The definition has been enacted for the purpose of the provisions of the Indian Penal Code, and in our opinion, it cannot be said that it contains any general principle of law of universal application as such. That a person should always tell truth is a moral principle, but it cannot be said to be a legal principle as such. Whenever the Legislature requires a person to tell truth, it has so enacted in various enactments. It is only when it has been so enacted and a person fails to tell truth that he comes within the mischief of the provisions of the Indian Penal Code.
(39) Mr. Gandhi also has argued and drawn our attention to the oral evidence of Mr. Ranadive, that sub-section (4) of section 171A was not explained. All that was explained to the person whose statement was recorded was that he was under the provisions of the said section bound to tell the truth. It is sub-section (4) of section 171A which provides that the inquiry under section 171A is deemed to be judicial proceeding within the meaning of sections 193 and 228 of the Indian penal Code, sub-section (4) not having been explained to the persons, it cannot be said that any threat as such was given to the persons whose statements were recorded. Now, the evidence which is given by Ranadive runs counter to the record made by him in recording the statements. We find practically the same endorsement at the commencement of every statement in the following terms:-
'The provisions of section 171A of the Sea Customs Act, 1878, have been explained to me. Accordingly I am bound to state the truth in the enquiry you are making.'
This endorsement as to what happened at the time various statements were recorded is clear and not ambiguous. It does not say that the officer who recorded the statement had explained only a part of section 171A, i.e. sub-section (3) of section 171A and not the other parts. The contemporaneous record made thus is in conflict with the evidence given in the Court by Ranadive. In the circumstances, we find it difficult to accept the oral evidence which runs counter to the aforesaid record made. We would, therefore, have to assume that all the provisions of section 171A, had been explained to the persons whose statements had been recorded. The question, however, that arises is whether in explaining the provisions of S., 171A, there was any threat within the meaning of section 24 of the Evidence Act, given to the persons whose statements were recorded. Now, on the language of section 24, it is not every threat that falls within its mischief, but it must be a threat 'proceeding from a person in authority'. Now, what has happened here is that the officers who recorded the statements have only explained the provisions of law contained in section 171A of the Act. The compulsion therein, even though it may amount to a threat, emanates not from the officer who was recording the statement, but emanates from the provisions of law. What is contemplated in section 24 is that the threat must emanate from the person in authority. Clearly in the instant case, there was no threat emanating from the persons in authority. On the contrary, the officers recording the statements were only doing their duty in bringing to the notice of the persons the provisions of law. There is also another aspect of the case. On the terms of section 24, it is not every threat or inducement or promise even emanating from the person in authority that is hit by section 24, but it has to be such an inducement threat or promise, which should lead the accused to support that 'by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him.' Now, here what has the person making the statement been told? He has been told that the law requires him to tell the truth. 'If you do not tell the truth, you may be prosecuted under section 193, Indian penal code, for giving false evidence. If you do not answer a question or if you persistently refuse to answer questions you may be prosecuted under section 228, Indian Penal Code, for causing interruption in the Proceedings.' The consequence of the advantage of telling the truth had no nexus much less a reasonable nexus of raising any hope or leading the persons making the statement to suppose that by making the statement they would be gaining any advantage or avoiding any evil of temporal nature in reference to the proceedings against them. The proceedings against them were in respect of the conspiracy to smuggle gold and the specific instances in which they had participate in smuggling gold. In explaining the provisions, the officer was not holding any hope to them that they would gain any advantage in reference to those proceedings. It does not, therefore, appear to us that in merely explaining the provisions of section 171A., there was any threat given by the officers recording the statements which could have raised any hope in the minds of the persons making the statements or led them to suppose that they were going to gain any advantage in reference to the proceedings against them relating to smuggling of gold. These being the circumstances of the case in our opinion, the statements recorded by these officers are not hit by the provisions of section 24 of the Indian Evidence Act.
(40) Mr. Jethmalani has referred to Halsbury's Laws of England, 3rd Ed., Volume 10, page 473. The passage read by Mr. Jethmalani from Halsbury is founded on the decision in The Queen v. Thompson, 1893 Q.B. 12. It would be sufficient to refer to that case only. Now, the facts of this case were a prisoner was tried for embezzling the money of a company. The evidence tendered was a statement made by him to the Chairman of the Company in which the accused stated : 'Yes. I took the money.' Afterwards, the accused had also given a list of the sums embezzled by him. In the evidence, the Chairman had stated that he had not given threat and no promise also was made by him to the accused in reference to the prosecution of the accused. He, however, admitted that he had stated to the brother to make a statement.' In the circumstances of the case, the Court drew an inference that the aforesaid statement made by the Chairman to the brother of the accused that it would be better for the accused to make a statement was conveyed by the brother to the accused. In the circumstances, it was held that the confession was not admissible inasmuch as it appeared to the Court that the statement of the accused admitting the guilt was not free and voluntary. It would be seen that in the statement made by the Chairman to the brother of the accused that, it would be better for the accused to make a statement, there was an implicit promise. It proceeded from the person in authority, i.e, the Chairman himself, and further, that it had reference to the proceedings against the accused, namely the embezzling of the company's money. These elements, as we have shown, are absent in the present case, where only the provisions of law contained in section 171A were explained to the persons making the statements. The provisions contained in the said section had no reference or gave no advantage, or could not have raised any hopes in the mind of the persons making the statements in respect of or in reference to the proceedings which might have been started against them, namely, relating to smuggling of gold. The decision, therefore, has no application to the facts of the present case Mr. Jethmalani stated that the decision in (1893) 2 Q.B. 12 was cited only for the purpose of showing that the ratio of this case was followed by Their Lordships of the Supreme Court in Hem Raj Devilal v. State of Ajmer : 1954CriLJ1313 . We have already shown that the decision has no application to the facts of the present case.
(41) It is next argued by Mr. Jethmalani that, any rate, Ranadive and other officers who had recorded the statements, were not entitled to record the statements under section 171A of the Sea Customs Act. They have, in fact, recorded the statements thereunder. Therefore, the threat which was conveyed to the persons whose statements were recorded did not emanate or proceed from the provisions of the statue, but from these officers themselves. The agreement is two-fold, in the first instance, Mr. Jethmalani argues that the officers who recorded the statements are officers of the Central Excise Department. Section 171A only empowers the officers appointed under the Sea Customs Act. to record statements under the provisions of the said section. Ranadive and other officers were therefore not justified in recording the statements under that section. It is not necessary to deal in detail with this agreement. We have already held that these officers have been duly and validly appointed officers under the Sea Customs Act, by reason of the aforesaid notification issued by the Central Government on 29th September 9151. We have also held that in holding the inquiry in respect of this case, these officers were acting in their capacity as officers appointed under the Sea Customs Act and not officers of the Central Excise. Therefore, in recording the statement under section 171A of the Sea Customs Act, they did not go beyond their powers, nor was their action in any manner unjustified. The other agreement advanced by Mr. Jethmalani was that, at any rate, they were not justified in recording the statements because no summons had been issued to the persons requiring them to attend the office to give evidence. The agreement is founded on the provisions of sub-section (3) of section 171-A, which says that 'all persons so summoned shall be bound to state the truth'. These persons were not summoned and yet they were told that they were bound to tell the truth. The agreement in short is that the issuance of a summons is a condition precedent to the conferring of jurisdiction on the Customs Officers to record statements under section 171A of the Act. Without issuing a summons, the Customs Officers are not entitled to and are not authorised to record statements under section 171A. Reading all the sub-sections of section 171A together, and having regard to the other provisions of the Act, it does not appear that the service of a summons is a condition precedent for conferring jurisdiction on the Customs Officer to record a statement under the said section. Sub-section (1) of section 171-A which confers power on the Customs Officer to summon a person, whose attendance he considers necessary to give evidence or to produce documents, does not say that 'any officer shall have power to issue a summons', but, on the other hand, it says 'any officer of Customs shall have power to summon'. The power conferred thus is a power to summon and not a power to issue a summons. So far as know to us, there is no provision in the Customs Act, prescribing a procedure for issuance of a summons. We asked Counsel as to whether there is any rule made prescribing any procedure for issuing a summons, or form of a summons prescribed. We have been informed by Counsel appearing in the case that there is no rule framed under the provisions of the Act prescribing any procedure for issuing a service of a summons, nor is there any form prescribed. The ordinary meaning of the word 'summon' is to demand presence of; call upon a person to appear. The power that is conferred is to require a person to appear before the Customs Officer by serving a written notice or summons to that effect on him, or may be called by merely sending a message to him; or, if he happens to be in the presence of the Customs Officer, merely by giving evidence. Having regard to the phraseology used in section 171A of the Act, and having regard to the fact that there is no procedure prescribed for issuing a service of summons, and no form of summons having been prescribed, in our opinion, the section does not contemplate the service of a summons as a condition precedent enabling the Customs Officer to record the statement under section 171A of the Sea Customs Act. The Customs Officers were not therefore acting without jurisdiction in recording the statements even though in some cases there had been no service of a written summons as such on some of the persons. It is clear that the endorsement at the commencement of each statement to one of which we have already referred leaves no doubt that before their statements were recorded, the officers concerned had explained the provisions of section 171A of the Act to those persons. The persons. therefore, had been duly required to make statements, and there is no invalidity in the matter of recording their statements. An agreement also has been advanced before us by Counsel for the appellants, that these officers apart from explaining the provisions of section 171A of the Sea Customs Act, had, in fact, given an inducement, threat or promise to these persons, as a result of which these statements have been made. To this agreement we would advert. when we proceed to deal with the facts against each of the accused.
(42) The other legal agreement, which had been advanced before us by Counsel for all the appellants is that the evidence of an accomplice requires corroboration. Corroboration must proceed from independent source. Neither the evidence of another accomplice, nor the confessions of the co-accused can be looked into as corroboration to the evidence of an accomplice. Mr. Kavalekar has referred us to a decision of Their Lordships of the Supreme Court in Kashmira Singh v. State of Madhya Pradesh : 1952CriLJ839 ; L. S. Raju v. The State of Mysore : AIR1953Bom297 and Sarwan Singh Rattan v. The State of Punjab, (S) : 1957CriLJ1014 . Now, the provisions of the Evidence Act relating to the evidence of an accomplice are contained in section 133 and illustration (b) of section 114 of the Act. Section 133 provides that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, having regard to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. In this section are also included certain maxims by way of illustrations which are founded on the experience gained in the past. These illustrations are in two parts. The first part gives the maxims relating to presumptions, which a Court may draw, but the latter part tells the Court that it should also have regard to certain special circumstances of each case in considering whether the maxim would have application to the facts of the case it has to consider. In other words, the first part of illustrations as whole, it becomes clear that the maxims or rules of prudence though of general application, have no universal application. The first part of illustration (b) provides that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus, the position emerging from these two provisions is that though in laws a conviction could be base don an uncorroborated testimony of an accomplice, it has been pointed out as a rule of prudence founded on the experience gained in the past that an accomplice is unworthy of credit, unless he is corroborated in material particulars. In other words, exceptions apart, ordinarily a presumption should be raised that the particular accomplice, whose evidence it has to consider is unworthy of credit, unless he is corroborated in material particulars. However, when we turn to the latter part of illustration (b), it becomes clear that the Legislature itself has envisaged cases where such a presumption may have no application. In inter alia deals with case falling under this very maxim. It provides :
'But the Court shall also have regard to such facts as the following in considering whether such maxims do or do not apply to the particular case before it.....................................As to illustration (b), a crime is committed by several persons, say, A, B, C and D. All the criminals are captured on the spot and kept apart from each other. Each gives an account of the crime, implicating D, and the accounts corroborate each other in such a manner as to render the previous concert highly improbable.'
Reading the relevant portion of S. 114 as a whole, together with section 133, the principle is that the accomplice being a participant in the crime, his testimony at its very threshold suffers from that infirmity, and casts a certain doubt as to is truthfulness. The Court, therefore, should ordinarily presume that his testimony should not be accepted unless there be other circumstances in the case or other evidence in the case proceeding from independent source, that is, source other than the testimony of an accomplice, lending assurance to the mind of the Court that the evidence given by the accomplice is truthful as against a particular accused, and it would be safe to act on the testimony of the accomplice. But in a given case, there may be no necessity of such corroborative evidence because the assurance or guarantee for the truthfulness of the account in the statement may be furnished by statements implicating a particular accused, made by various participants in the crime without they having any opportunity of a previous concert. In other words, the latter part of illustrations to section 114 tells us that the experience of the world is that when a number of participants in the crime, without any previous concert, state that a particular person has joined in the commission of the crime, there might be no necessity for the corroboration of the testimony of an accomplice because such statement by a number of participants without any previous concert itself affords a guarantee for reliability of the testimony of an accomplice. Of course, that again would depend on the nature of their statements, account of the crime given by them and the extent to which their statements corroborate one another. It appears that the latter part of illustration relating to ill. (b) of section 114 is founded on the observations of Mr. Justice Campbell occurring in the decision reported in Queen v. Chutterdharee Sing, 5 Suth WR (Cri) 59 at p. 60. The corroboration required to the testimony of the accomplice was a question being considered. In considering this question, it is observed.
'It is necessary, then, to watch the evidence of such men, with very great care; and I am glad to see that these Bhaugulpore cases are not usually sent up without strong corroborative evidence. There may be cases in which the evidence. There may be cases in which the evidence of different accomplices is given under such circumstances and with such real security against any possible intercommunication that they do, the most careful mind, in a great degree, corroborate one another.'
It would thus be seen that the Court finding the existence of statements of a number of participants in the crime corroborating one another is a relevant circumstance which could be taken into account in considering whether in a particular case corroboration to the evidence of an accomplice is required, and also in considering the nature and extend of the corroboration that is required before the evidence of an accomplice is accepted. It must be emphasised that each case would depend upon its own facts. No hard and fast rule can be laid down in this respect. The usual rule of prudence that has ripened more or less into a rule of law is that of the Court will require corroboration to the testimony of an accomplice before it acts on it, and this rule of caution has to be kept in view by a Court in appreciating the evidence of an accomplice, and keeping these principles in view, we would appreciate the evidence of Kashinath and Devchand. Now, the reason underlying the principle that the evidence of an accomplice requires corroboration has been succinctly put by Sir John Beaumont in Bhuboni Sahu v.. The King . in the following words :
'Their Lordships, whilst not doubting that such a conviction is justified in law under section 133 of the Evidence Act, and whilst appreciating that the coincidence of a number of confessions of co-accused all implicating the particular accused, given independently, and without an opportunity of previous concert might be entitled to great weight, would nevertheless observe that Courts should be slow to depart from the rule of prudence, based on long experience, which requires some independent evidence implicating the particular accused.'
These observations of Their Lordships also indicate that the confessions of the co-accused are not totally irrelevant in considering the evidence of an accomplice. It undoubtedly is a piece of weak evidence. What weight it has to be given would depend on the circumstances of each case. Sir John Beaumont, then proceeds:
'The danger of acting on accomplice's evidence is not merely that the accomplice is on his own admission man of bad character who took part in the offence and afterwards to save himself betrayed his former associates and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence, and the story may be true in all its details as to eight of them, but untrue as to the other two, whose names have been introduced because they are enemies of the approver.
The nature and extent of corroboration has been described by Sir John Beaumont as 'some independent evidence.' No hard and fast rule of general application can be laid down or has been laid down in any case as to what that 'some independent evidence' has to be. The question has been considered in various decisions of their Lordships of the Supreme Court. The nature and extent of corroboration required has been stated in 1916-2 KB 658 (at p. 667), the leading case on this subject. It has been stated thus:
'It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration except to say that the corroborative evidence which shows or tends to show that the story of an accomplice that the accused committed the crime is true not merely that the crime has been committed but that it was committed by the accused.'
The question has also been recently considered by this Court in Choraria's case, Criminal Appeals Nos. 960 to 964 of 1962, D/- 17-1-1964 (Bom) and it has been observed :
'Even in respect of the evidence of an accomplice, all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. Corroboration need not be by direct evidence that the accused committed the crime. It is sufficient even though it is merely circumstantial evidence of his connection with the crime.'
In our opinion, therefore, having regard to the decisions to which we have just now referred, it is not possible to fully agree with the contention of Mr. Kavelkar that in considering the evidence of an accomplice, the evidence of another accomplice or the self inculpatory confession of the co-accused are wholly or totally irrelevant. It is of course true that the evidentiary value of the evidence of another accomplice or the confession of the co-accused is not of great weight. In our opinion, the decisions in : 1952CriLJ839 , on which reliance has been placed is distinguishable on facts. No doubt in the head note it has been observed that the confession of an accused person against a co-accused is not evidence in the ordinary sense of the term. In that case, Their Lordships were considering the question as to whether the confession of a co-accused can be held to be a substantive piece of evidence against the accused.
'Evidence' has been defined in the Evidence Act, as all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry (i.e. oral evidence), and all documents produced for the inspection of the Court (i.e. documentary evidence).'
This is evidence in the strict sense of the terms in the Evidence Act. An accomplice is a witness examined in the Court like any other witness, and therefore, the evidence of an accomplice given in Court in the strict sense is substantive piece of evidence. Section 133 provides that an accomplice is a competent witness against an accused person, and even on an uncorroborated testimony of a person, conviction could be founded. The confession of the co-accused, however, stands on a different footing. It is not evidence within the meaning of the definition of 'evidence' given in the Evidence Act, it nonetheless is a material which could be taken into account. Section 30 of the Evidence Act, provides that the confession of the co-accused when jointly tried may be taken into consideration as against the other accused. It is thus evidence but not a substantive piece of evidence. In other words, no conviction could be founded merely on the confession of a co-accused, while a conviction could be founded on the evidence of an accomplice which in the strict sense is evidence. The position has been made clear by Their Lordships of the Supreme Court recently in an unreported decision in Criminal Appeals Nos. 208 and 209 of 1963, D/-3-2-1964. : 1964CriLJ344 . In Kashmira Singh's case : 1952CriLJ839 , on which Mr. Kavlekar has placed reliance in support of his contention that the confession of the co-accused is not evidence, one of the questions which was being considered was how far and in what way the confession of accused person can be used against a co-accused. In this case, the confession of another accused Gurudayalsingh had played an important part in implicating the appellant Kashmira Singh. Their Lordships, in view of the definition of the 'evidence' contained in section 3 of the Evidence Act, held that the confession of a co-accused is not a substantive piece of evidence on which conviction of an accused could be founded, but it could be used under section 30 only for lending assurance to the mind of the Court about the truthfulness of other evidence, which if believed, would establish the guilt of the accused. Considering the question as to whether it could be used as corroboration to the evidence of an accomplice or an approver, Mr. Justice Bose speaking for the Court, at page 530 of the report (SCR) : (at pp. 160-161 of AIR) observed :-
'Then, as regards its use in the corroboration of accomplices and approvers. A co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the 'evidence' is not on oath and cannot be tested by cross-examination. Prudence will dictate the same rule of caution. In the case of a witness who though not an accomplice is regarded by the Judge as having no greater probative value. But all these are only rules of prudence. So far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the Judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to discard it. Two of us had occasion to examine this recently in Rameshwar v. State of Rajasthan AIR SC 54. It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed.'
(43) From the aforesaid observations of Their Lordships, it is clear that the rule of prudence tells us that it would not be safe to accept the evidence of an accomplice as corroboration to the evidence of another accomplice and the confession of a co-accused as a piece of evidence lending assurance to the mind of the Court in considering the evidence of the accomplice. There may however be some exceptional cases where evidence of an accomplice could be taken as corroboration to the evidence of another accomplice and the confession of a co-accused could be relied on for lending assurance to the mind of the Court. In considering the question as to whether a conviction could be founded on a testimony of the accomplice without corroboration, the latter part of section 114, Illustration (b) is relevant. As we have already stated , each case will have to be considered in the light of its own facts. Bearing these principles in mind, we would be approaching the facts of this case.
(44) But before we proceed to deal with the case of each appellant accused, it is necessary to deal with one other legal agreement advanced by Mr. Pardiwala on behalf of accused No. 9. Now, the contention of Mr. Pardiwala is that use of the confession of accused No. 9 as against him is violative of the fundamental right conferred on the accused under Article 20(3). Clause (1) of Article 20 provides that save and except for violation of a law in force, no person can be convicted. Clause (2) confers a guarantee against double jeopardy. A person cannot be prosecuted and punished for the same offence more than once, and clause (3) provides : 'No person accused of an offence shall be compelled to be a witness against him.' To bring into operation the provisions of clause (3) of Article 20, two conditions have to be fulfilled: (1) that a person must be one who has been accused of an offence, and (2) he must be compelled to be a witness against himself. It is the protection given to a person accused of an offence, and the protection is against he being compelled to be a witness against himself. It is the agreement of Mr. Pardiwala that the statement of accused No. 9 is of date 26th November 1961. Prior to that date statements of various other accused were recorded. Similarly statements of prosecution witnesses Kashinath, Devchand and Dharma were also recorded much prior to 26th November 1961. These accused as well as the prosecution witnesses held in their statements stated the part played by accused No. 9 in the conspiracy as well as in the four trips in which gold had been smuggled. Accused No.9 thus was a person accused of an offence within the meaning of clause (3) of Article 20 on the date he made the statement. Before accused No. 9 had made the statements, he had been explained the provisions of S. 171-A of the Sea Customs Act, and he was, under the threat of a criminal prosecution contained in sub-section (4) of section 171A, told that he was bound to tell the truth. His statement Z-33 has been filed in the case and has been used as an evidence against accused No. 9. The accused thus has been compelled to be a witness against himself. It is on the basis of this agreement that Mr. Pardiwalla contends that the use of this statement against accused No. 9 is violative of the guarantee of the fundamental right conferred under Article 20(3) of the constitution. It is not in dispute that the statements of number of co-accused as well as statements of these three prosecution witnesses who were also accomplices were recorded prior to the date on which the statement has been made by accused No. 9 . It is also not in dispute that Kashinath, accused No.1- Govind, accused No. 10- Hira, and accused No. 4- Noor Mohmed, in their statements had implicated accused No. 9 in the commission of the crime. The question, therefore, that arises for consideration is whether on the date accused No. 9 made the said statement Z-33, he was a person accused of an offence within the meaning of Article 20(3), and the second question that arises is whether accused No, 9 had been compelled to be a witness against himself by reason of the fact that the provisions of section 171A of the Sea Customs Act, had been explained to him before he made the statement.
(45) Turning to the first question, the expression 'person accused of an offence' has been considered by Their Lordships in various decisions, and it would be useful at this stage to refer to them to understand the true import of that expression. The question was first considered in M. P.Sharma v. Satish Chandra : 1978(2)ELT287(SC) . there, after the first information report had been lodged against Mr. Sharma, a search warrant had been issued for searching the premises of Sharma under sections 94 and 96, Criminal Procedure Code. The question that was considered was whether the search and seizure of documents under sections 94 and 96 Criminal Procedure Code, was violative of the provisions of clause (3) of Article 20 of the Constitution. The provisions of clause (3) of Article 20 have been elaborately examined by Their Lordships, Mr. Justice Jagannadhadas, speaking for the Court, at page 1088 of the report (SCR) : (at p. 304 of AIR) observed -
'It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution.'
Their Lordships have held that as the first information report had been lodged with the police, the appellant Sharma and others were persons accused of an offence. The question was next considered in Mohamed Dastagir v. State of Madras, AIR 1960 SC 756. Facts in that case were that the appellant had gone to the bungalow of a Deputy Superintendent of Police to offer him bribe in a closed envelope so that he might drop the action registered against him. The police officer threw the envelope at the appellant. The envelope fell down, and was picked up by the appellant. Later while the appellant was still in the bungalow, he was asked by the police officer to produce the envelope which he had thrown down. The appellant took out from his pocket some currency notes and placed them on table without the envelope. The notes were seized by the police officers and his officer rubber stamp seal was placed on them in these circumstances, the question considered was whether in requiring the appellant to produce the notes, there was any compulsion within the meaning of clause (3) of Article 20. Their Lordships held that at the time the notes were produced, by the appellant there was no formal accusation against the appellant relating to the commission of an offence. The question next arose in Narayanlal Bansilal v. Maneck Phiroz Mistry : 1SCR417 . Facts in that case were that the appellant Raja Narayanlal Bansilal was a managing agent of a limited company. The Registrar of Companies had made a report to the Central Government that the affairs of the company were carried in fraud of the contributories and they disclosed an unsatisfactory state of affairs. The Registrar also reported that the managing agent was also utilising the property of the company for his personal gain, and therefore investigation under section 138 of the Companies Act be instituted. The Central Government then appointed Mr. Mistry, a chartered accountant, as Inspector to investigate the affairs of the company. Pursuant to the powers conferred on him., Mr. Mistry wrote to the appellant a letter intimating to him that he would examine the appellant on oath in relation to the business of the company. The appellant was also called upon to appear on a specified date for being examined on oath relating to the affairs of the company and to produce all books of account, and papers relating to the company. He was further warned that in default of compliance with the requisition, legal steps would be taken without further reference to him. The appellant then moved this Court by a Writ Application and prayed that this Court should issue a writ of certiorari and quash this notice. The petition was dismissed and the matter went to the Supreme Court, in appeal. Considering the question whether at the material time the appellant was a person accused of an offence, Their Lordships at page 38 of the report observed.
'Similarly for invoking the constitutional right against a testimonial compulsion guaranteed under Article 20(3) it must appear that the formal accusation has been made against the party pleading the guarantee and that it refers to the commission of an offence which in the normal course may result in prosecution.'
Here again, the nature of accusation and the proper sequel of consequences are regarded as important. Examining the relevant provisions of the Companies Act. Their Lordships further observed that the report made by the Registrar Companies was not formal accusation against the appellant. At page 39, Their Lordships observed.:-
'In such a case there is no accusation either formal or otherwise against any specified individual. There might be allegations that the affairs are irregularity, improperly or illegally managed, but who would be responsible for the affairs which are reported to be irregularly managed is a matter which would be determined at the time of the inquiry. At the commencement of the inquiry, and indeed throughout its proceedings, there is no accused, no accuser, and no accusation against any one that he has committed an offence. In our opinion, the general inquiry and investigation in relation to the affairs of a company thus contemplated cannot be regarded as an investigation which supports that accusation contemplated in Article 20(3) of the Constitution.
(46) It appears that the observations in Sharma's case : 1978(2)ELT287(SC) in respect of the clause 'to be a witness' led to difference of opinion as to its import. The question was, therefore, again considered by a Bench consisting of eleven Judges, in State of Bombay v. Kathi Kalu : 1961CriLJ856 and the conclusions arrived at have been summarised by the learned Chief Justice in his leading Judgment at page 1817 of the report. It is not necessary to reproduce all the seven conclusions for the purposes of this case. The 7th conclusion reads :
'To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused any time after the statement has been made.'
The question, therefore, that has to be considered is whether on 26th November 1961, the date on which accused No. 9 made the statement, he stood in the character of an accused person. The test laid down in the aforesaid decision of ascertaining this fact is whether there was a formal accusation on that date against him. An accusation becomes a formal accusation when there is an accuser who makes an accusation against the accused which should in normal course lead to prosecution in a criminal Court. The question to be considered is whether these circumstances existed on 26th November 1961, the date when accused No. 9 made the statement. Now, agreement had been that accused No. 9 was a person accused of an offence because the persons who had been arraigned as co-accused, and the persons who had been examined as witnesses, had, in their statements, stated the part played by accused No.9 in the conspiracy and the overt acts of smuggling. Now, these statements have been recorded by the Superintendent and the Deputy Superintendents of Central Excise, under section 171A of the Sea Customs Act. Having regard to the provisions of the Act, the statements recorded were in the course of ascertaining the facts in relation to contraband gold seized in the raid. None of them had made a formal accusation against any person, much less against accused No. 9, with an objective that action against any person be taken. The statements of the co-accused or prosecution witnesses can hardly be equated with a formal accusation made against any person with a view of taking action against him We have already referred to the provisions of section 187-A of the Sea Customs Act, which prevents a Criminal Court from taking cognizance of an offence under section 167(81) save and except a complaint in writing made by the Chief Customs Officer or a Customs Officer not below the rank of an Assistant Collector of Customs. Superintendent and Deputy Superintendents of the Central Excise, are Officers below the rank of an Assistant Collector of Customs. Any statement made to them cannot, in any event, be an accusation made for the purposes of taking action against the accused person. In this context, it would be useful to compare the provisions of the Criminal Procedure Code in contradistinction with the provisions of the Customs Act. It may be mentioned that in Sharma's case, : 1978(2)ELT287(SC) , Their Lordships were dealing with a case where the first information report had been lodged to the police. Chapter XIV in Part V of the Criminal Procedure Code, relates to the information to the police and their powers to investigate, and consists of sections 154 to 176. Section 154 relates to the information in cognizable cases. The section makes it obligatory on the police officer to enter it in the book kept for that purpose. Section 155 relates to the information in non-cognizable cases. Section 156 provides that without the order of the Magistrate, an officer in charge order of the Magistrate, an officer in charge of the police station can investigate a cognizable offence, and in case of a non-cognizable offence , on an order made by the Magistrate. Section 157 to 168, relate to the powers of the police officers and the procedure to be followed by the police officers in making the investigation. Section 1769 provides that if it appears to the investigating officer that there is no sufficient evidence or reasonable ground of suspicion to justify forwarding the accused to the Magistrate, he may release him from the custody taking a bond from him for appearance before him. On the other hand, if on the completion of the investigation, the investigating officer finds that there is sufficient evidence or reasonable ground of suspicion to justify forwarding an accused to the Magistrate, he would ordinarily forward the accused person for trial in a Criminal Court before a Magistrate. The first information lodged with the police officer thus in the ordinary course leads to prosecution in a Criminal Court if the investigation discloses a case against the accused. Such, however, is not the case here in view of the provisions of the Sea Customs Act. Persons recording statements are not persons who are empowered to lodge a complaint against an accused under section 187A of the Act. There is no provision in the Act making it obligatory on Customs Officers to forward persons to a Magistrate to stand their trial, even if the Customs Officers on investigation find that they have committed an offence under the Act. As we have already stated, the said section 187A prohibits a Criminal Court from taking cognizance of an offence under the Sea Customs Act under section 167(81) of the Act, save and except when a complaint has been lodged by persons authorised to lodge a complaint under the section. Thus having regard to these provisions, the formal accusation which in the normal course would result in a trial of a person in a Criminal Court, would be a complaint lodged by a competent officer under section 187A when the accusation falls under item (81) of the schedule to section 167. In the instant case, the accusation made against accused No. 9 is for an offence relating to smuggling of gold punishable under item (81) of the schedule to section 167 of the Sea Customs Act. In our opinion, therefore there was no formal accusation against accused No. 9 on 26th November 1961, the date on which his statement was recorded. One of the conditions required to be fulfilled thus has not been fulfilled in the instant case. The statement made by accused No.9 on 26th November 1961 therefore, does not fall within the mischief of clause (3) of Article 20 of the Constitution. This being our conclusion on the first part, it is not necessary to consider whether accused No.9 was compelled to be a witness against himself because the provisions of section 171-A were explained to him before he made the statement. Mr.Pardiwalla, in support of his contention had also placed reliance on certain observations in the decision of a Division Bench of the Madras High Court reported in Rainbow Trading Co. v. Assistant Collector of Customs . : AIR1963Mad434 . The observations on which reliance has been placed are at page 441.
't is argued that if it were to be recognised that there is no prohibition against compelled testimony in proceedings under the Customs Act. the guarantee under Article 20(3) itself, would come illusory as the confession can be obtained first under section 171-A of the Sea Customs Act and then used for a prosecution. We cannot agree that it would be so. If for example a smuggler gives himself away during an examination under section 171-A that evidence will nevertheless constitute a compelled testimony and can neither be relied on nor used against him in any criminal prosecution as Article 20(3) will prevent it from being so used. So much can be taken as settled by : 1978(2)ELT287(SC) . Therefore, any incriminating answers which a person examined under section 171-A may give, can only be used for the purpose of the departmental punishment and not for a prosecution in a Criminal Court'.
These observations undoubtedly support the contention raised by Mr. Pardiwalla. But, with utmost respect we find it difficult to take a similar view because, in our opinion, for the reasons stated above, a person examined under section 171-A, 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. The fact that subsequent to the making of the statement he becomes an accused person is not sufficient to bring the statement within the mischief of Article 20(3) of the Constitution.
(47) It has also been argued on behalf of the appellants that the Customs Officer had not maintained any diary. It is, therefore, not possible to ascertain and check whether the statements said to have been recorded on a particular date are in fact recorded on a particular date are in fact recorded on a particular date are in fact recorded by the Customs Officer on that date. The Customs Officers could without detection easily antedate the statements, which they have recorded. The agreement principally is aimed at the dates of accused No. 1's statement and that of the statement of Kashinath. According to the Customs Officers, their statements were recorded on 15th August 1961. No doubt accused No. 1 in his statement has stated that his statement was not recorded on 22nd August and from 15th to 22nd August he was kept in custody and was subjected to ill-treatment and harassment and ultimately his signature was taken by force on a statement . The agreement is, there being no diary , there is no check. The Court, therefore, should be circumspect in accepting that the statement of govind was recorded on 15th August 1961. It is true that there is no diary maintained by the Customs Officers in this case. There is no provision in the Customs Act to maintain any diary, nor are the provisions of the Criminal Procedure Code relating to investigation made applicable to inquiries under the Customs Act. In these circumstances it is not possible to say that the Customs Officers in not maintaining a diary have failed to follow the procedure prescribed by law. The principal object of the Customs Act is not detection of a crime. The Customs Officers are not primarily concerned with the detection and punishment of a crime; but the Customs Officers are mainly interested in the detection and prevention of smuggling of contraband articles and safeguarding recovery of customs dues. They are more concerned with the smuggled goods than the offenders who smuggle goods. A suggestion was made to Kashinath in his cross-examination that his statement was not recorded on 15th August , but was recorded later, and Kashinath has denied it. The Officers who have recorded the statements are responsible officers. Absence of provision in the Customs Act, requiring them to maintain a diary would not by itself be a good ground for rejecting their evidence without there being sufficient reason to discard it and none has been pointed out to us. Govind appears to be a literate person. He has signed each page of his statement and at the end of his signature he has put the date on each page, and the date is 15th August 1961. There is also other evidence on record which clearly indicates that Govind's statement must have been recorded on 15th. It is not in dispute that the flat in Avillion was searched on 16th August 1961. It is the statement of Govind that had made mention of a flat on the Little Gibbs Road in newly constructed building. IT is only Govind and not Kashinath who had been taken to the flat, and Govind had made mention thereof in his statement. In all probability, the search of flat in Avillion on 16th August 1961, was made in consequence of the statement of Govind on 15th August 1961.
(48) These are all the legal contentions which had been argued before us. Mr.Pardiwalla and Mr. Jethmalani have also stated before us that the appellants contend that putting Kashinath, Devchand and Dharma as witnesses and not as accused is violative of Article 14 of the Constitution . They, however, were not arguing this point because the question has been decided by this Court in Choraria's case.
(49) And this brings us to the facts relating to the case of each of the appellants.
(50-74) (His Lordship then considered the case of each of the accused appellants by applying the principles laid down above to the evidence against them and concluded as follows:)
(75) In the result, for the reasons stated above, the appeals of all the three appellants accused Nos. 5, 8 and 9 are dismissed. The sentences awarded to accused Nos. 5 and 9 are maintained. As regards the sentence of accused No.8. we have already stated that the maximum sentence is imposed on him. On the evidence on record, we find it difficult to sustain the maximum sentence which has been imposed on accused No.8. Mr.Gandhi has vehemently argued that this is not a case in which the sentence of the accused should be reduced ; at any rate, it should not be reduced below 18 months . According to him, accused No.8 also has played a leading part and had been specially sent for from a place named Jamsalai in Saurashtra, to receive smuggled gold which was sent in the four trips. We have already discussed that there is no substantive evidence establishing these facts. We have also discussed that on the evidence on record, the part played by accused No. 8 appears to be a minor one. In the circumstances, in our opinion, interests of justice would be served if accused No. 8 is sentenced to suffer rigorous imprisonment for a period of one year. The sentence of two years is thus altered to that of one year. The sentences are to run concurrently.
(76) Counsel for accused Nos. 5 and 8 pray for sometime to surrender to bail. Neither of them is in Court. Accused on bail have to remain in Court on the date of hearing. no discretion can be exercised in their favour. The applications are rejected. Both accused Nos. 5 and 8 to surrender to their bail.
(77) Appeals dismissed.