1. These three revision applications arise out of the complaints made by the Customs authorities against the respective accused regarding offences under the Customs Act, 1962, (hereinafter referred to as 'the Act of 1962). In Criminal Revision Application No. 368 of 1967, the offence is alleged to have taken place on March 1, 1966 on which date five hundred tolas of gold were seized from the accused Pukhraj Shah. Immediately after detention a summons was served upon him under S. 108 of the Act of 1962 and the statement of the petitioner was recorded by the Customs officer. Eventually, a complaint was filed on August 19, 1966, charging him with several offences. On March 13, 1967, the petitioner made an application to the learned Magistrate before whom the case was being heard contending that the statement recorded by the Customs officer under S. 108 of the Act of 1962 was not admissible in evidence as being hit by S. 25 of the Indian Evidence Act.
2. In Criminal Revision Application No. 447 of 1967 the offence is alleged to have occurred on December 26, 1964, when five hundred forty watches were seized from the petitioner, Dady Fatakia. In his case also he was served with a summons under S. 108 of the said Act and his statement was recorded by the Customs Officer. Eventually, a complaint was filed against him also on September 21, 1966. He also filled an application contending that his statement was not admissible in evidence because it was hit by S. 25 of the Indian Evidence Act.
3. In Criminal Revision Application No. 475 of 1967 the offence is alleged to have occurred on May 30, 1965, when eleven thousand tolas of gold, were seized from the Petitioner, Punamchand Chopra. In this case the petitioner was accused No. 2 He also raised a similar contention. We are told, in his case, the statement was recorded under S. 107 of the Act of 1962. When the statement was being relied upon before the trial Magistrate, he raised a similar objection contending that his statement before the Customs officer was not admissible in evidence because of S. 25 of the Indian Evidence Act.
4. These revisional applications are filled against interlocutory orders and normally it is not the practice of this Court to interfere with such interlocutory orders. Criminal law, in order to be effective, must be quick in its administration. No punishment can be effective if it is delayed. By making such interlocutory applications it is possible for the accused to delay the proceedings as far as possible, particularly when there is plenty of money. In all these three cases, it is alleged that except those statements, it is alleged that except those statements, there is no material which could be relied upon by the prosecution. If that is so, it could have been easier to come to this Court from the final order of conviction, if any. At first, we were inclined to reject these revisional applications in limine. But, we were told that there are quite a few matters where this point is involved. We, therefore, reluctantly heard these matters on merits.
5. The question is raised not because it had become before this court for the first time, for under the Sea Customs Act of 1878, the question has arisen very frequently. Decided cases have held that confessional statements made before the Customs officers are not hit by Section 25 of the Indian Evidence Act and they are, therefore, admissible. It is argued now in these cases that the Act of 1962 makes a departure from the earlier Act, viz., Sea Customs Act, 1878, is much wider in its scope and given much larger powers to the Customs officers and, therefore, those decisions become inapplicable. It is argued that the Customs officers become Police officers under the Act of 1962. Therefore, S. 25 of the Indian Evidence Act is attracted and confessional statements made to them are not admissible.
6. In State of Punjab v. Barkat Ram, : 3SCR338 , the question of applicability of S. 25 of the Evidence Act to the statements made before the Customs officers was raised. In this case, the Supreme Court said that the words 'police officer' are not to be construed in a narrow way, but should be construed in a wide and popular sense, with a further rider that the expression has not such a wide meaning as to include persons on whom certain police powers are conferred. The Supreme Court, observing that the Customs officer is not primarily concerned with the detection and punishment of crime committed by a person, but is mainly interested in the detection and prevention of smuggling of goods an safeguarding the recovery of customs duties and that he is more concerned, with the goods and customs duty, than with the offender, held that the duties of the Customs officers are very much different from those of the Police officers, and therefore, S. 25 of the Evidence Act cannot apply to statements recorded by them. The ratio of this decision is that though a Customs officer may, in order to enable him to discharge his duties efficiently, be invested with some powers, which may have similarity with those of Police officers, yet since the primary purpose of investing of such powers in him is not for the purpose of maintaining law and order but for a specific purpose such as, safeguarding the revenues of the State of or its economy, he will not fall within the expression 'police officer' and the statement recorded by him would not be hit by S. 25 of the Evidence Act. This view has been later reaffirmed in Badaku Joti v. State of Mysore, : 1966CriLJ1353 , by a Bench of five Judges. We will advert to this case a little later.
7. Reliance has been placed upon the decision of the Supreme Court in Raja Ram v. State of Bihar, : 1964CriLJ705 . That case arose under the Bihar and Orissa Excise Act, 1915, where it is strenuously argued, the earlier view has been modified. In this case the statement was recorded by the Sub-Inspector of Excise and at the time of the trial a contention was raised that S. 25 of the Indian Evidence Act was applicable inasmuch as his powers were those of a Police officer he fell within the expression 'police officer'. This case was heard by a Bench of three Judges and was decided by majority of two . Raghubar Dayal J. differed from the majority view. We do not have the Bihar and Orissa Excise Act before us with the result that we do not know what the provisions of that Act are. Section 78, as quoted in paragraph (36) of the dissenting judgment shows that any Collector or any Excise Officer who is empowered under S. 77(2) of that Act would exercise any of the powers conferred upon a Police officer making an investigation or upon an officer in charge of a police State by Ss. 160 to 171, Cr. P. C. and in respect of certain offences punishable under Ss. 47, 49, 55 or 56 of the said Act any of the powers conferred upon Police officers in respect of cognizable offences by clause first of sub-section (1) of S. 54 and by S. 56, Cr. P. C. It makes applicable the provisions of the Criminal Procedure Code to all such investigations subject to any restrictions imposed by the State Government under its rule-making powers. Sub-section (3) of S. 77 of the said Act further provides that the area in respect of the area to which an Excise Officer is appointed shall be deemed to be a police station and such officer shall be deemed to be the officer in charge of such station. Sub-section (4) also further provides that after the investigation is completed by such officer he has to send a report to the Magistrate and that report is deemed to be a police report for the purpose of S. 190, Cr. P. C. In the majority judgment Mudholkar J. clearly beings out the distinction between the provisions of the Sea Customs Act of 1878 and the Excise Act with which their Lordships were dealing, saying (p. 833):-
'..........The position of an Excise officer empowered under S. 77 (2) of the Bihar and Orissa Excise Act is not analogous to that of a Customs Officer for two reasons. One is that the Excise officer foes not exercise any judicial powers just as the Customs officer does under the Sea Customs Act, 1878. Secondly, the Customs officer is not deemed to be an officer in charge of a police station and therefore, can exercise no powers under the Code of Criminal Procedure and certainly not those of an officer in charge of a police Station'.
His Lordship points out that though the officers under the Sea Customs Act have some powers analogous to those of police officers under the Criminal Procedure Code, they are not identical with those of police officers are not derived from or by reference to the Code. Their Lordships distinguished Barkat Ram's case, : 3SCR338 and held that the statement recorded by the Excise officer was hit by S. 25 of the Evidence Act.
8. Mr. Ashok Desai, however, relied very much on the test which is apparently formulated by their Lordships in paragraph (11) of the judgment. The learned Judge says (p. 833):
'..............The test for determining whether such a person is a 'police officer' for the purpose of S. 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of a 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 the consideration where the power 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'.
Our attention was also invited to the following observation in a later part of the judgment, where the learned Judge says (p. 834):
'............We may add that the existence of the power to grant bail in an officer in charge of a police station itself enables him to exercise authority over the arrested person and influence his conduct if he so wishes'.
It is contended that the observations quoted above modify the earlier view and lay down the test which has to be applied in all such cases.
9. A similar case again came before the Supreme Court in : 1966CriLJ1353 , which is already referred to above. As we have stated, the case was decided by a Bench of five Judges. Both Barkat Ram's case. : 3SCR338 and Raja Ram's case, : 1964CriLJ705 , were referred to. The question as to whether S. 25 of the Evidence Act should be construed in a narrow way as was done in Radha Kishun Marwari, v. Emperor, ILR 12 Pat 46= : AIR1932Pat293 , or liberally as was done in Nanoo Sheikh Ahmed v. Emperor : AIR1927Bom4 , was left open. The case arose under the Central Excise and Salt Act, 1944, and their Lordships held that even if the wider meaning of the expression 'Police Officer' were adopted, the officer under the Central Excises and Salt. Act could not be regarded as a police officer and S. 25 of the Evidence Act. Act would not apply to a statement recorded by such an officer. In this case the test of main purpose of the giving of the powers was again adopted. Their Lordships pointed out that the main purpose of that Act was to levy and collect excise duties and that the Central Excise offices have been appointed under the Act for that purpose and in order that they may efficiently discharge their duties and prevent evasion of the duty certain powers of investigation, search and seizure are vested in them. It was further emphasized that after the investigation, the officer had not to submit a report to the Magistrate unlike a police officer, and this very clearly distinguished an excise officer from a police officer. Having regard to this decision, it seems to us that it is difficult to hold that the test laid down in Barkat Ram's case, : 3SCR338 , viz., the primary purpose of investing the officers with the powers of search and seizure and others powers, was given up and the new test accepted. The fuller Bench in Badaku Joti's case, : 1966CriLJ1353 , reaffirmed the test laid down in Barkat Ram's case, : 3SCR338 , and distinguished Raja Ram's case, : 1964CriLJ705 , on the construction of the Bihar and Orissa Excise Act, 1915, only.
10. This Court has also decided similarly in Laxman Padma v. State, : AIR1965Bom195 , under the Sea Customs Act, 1878.
11. We are not satisfied that under the Act of 1962 such powers have been vested in the Customs officers that they must be regarded as police officers. A close reading of the provisions shows that the powers that are conferred upon them do not make them police officers or bring them to the level of police officers and are merely intended to avoid certain inconveniences in the discharge of their duties. When we say inconveniences-inconveniences both to the citizen and to the department. The powers of search, seizure and arrest are contained in Chapter 13 of the Act of 1962.
12. Section 100 of the Act of 1962 is practically similar to S. 169 of the Sea Customs Act, 1878, except for the fact that the field of its application is wider. Section 169 of the old Act gave power to a Customs officer to search any person on board of any vessel or any person who had landed from any vessel, if he believed that such person had dutiable or prohibited goods secreted about his person. Section 100 of the Act of 1962 enables the proper officer defined under the said Act to search a person to whom the section applies, if he has reason to believe that he has secreted about his person any goods liable to confiscation. The section applies to (1) any person who has landed or is about to board or is on board any vessel within the Indian Customs waters; (2) any person who has landed from or is about to board, or is on board a foreign-going aircraft; (3) any person who has got out of, or is about to get into, or is in, a vehicle, which has arrived from, or is to proceed to any place outside India; (4) any person not included in Clause (1), (2) or (3) who has entered or is about to leave India; (5) any person in a customs area. Widening the field of application of the section is not the same as widening the powers of the offices. Evidently, the old Act was found inadequate to meet cases where offence was committed by a person who did not fall within S. 169 of that Act.
13. Section 101 of the Act of 1962 expands the area of operation and is not confined to the Customs limits. But then, it also provides a safeguard. The power to search is given to an officer of the Customs if he is so empowered either of the Customs if he is so empowered either by a general or special order of the Collector of Customs and provided he has reason to believe that any person has secreted about his person any goods of the description specified in sub-section (2). Sub-section (2) limits the application of the section to gold, diamonds, manufactures of gold or diamonds, watches, and enables the Central Government to add to the class of such goods by a notification in the official Gazette. If the powers under S, 169 of the old Act did not make a Customs officer a Police officer, it is difficult to see why he should become a Police officer merely because the exercise of that power is extended to persons outside the Customs limits. It is intended to meet cases of discovery of smuggled articles outside the Customs limits.
14. Section 102 of the Act of 1962 is somewhat similar to S. 170 of the old Act. Section 170 of the old Act provided that if the person about to be searched required the officer, the officer was bound to take him before the nearest Magistrate or Customs Collector. Section 102(1) of the Act of 1962 is consequential provisions and requires him before search to betaken to the nearest gazetted officer of Customs or Magistrate. Only one addition is made as a safeguard and that is that the search must be conducted in the presence of two or more persons and a list of all things seized in the course of such search must be prepared and it must be signed by such witnesses. This provisions is not to be found in Section 170 of the old Act. Evidently, it is intended to safeguard the citizen and cannot affect the question at issue. Section 103 of the Act of 1962 is akin to Section 170-A of the old Act, which came to be added by Act 21 of 1955. By this provision the Customs officers are enabled to screen or obtain X-ray photographs of persons stated therein. This provision is intended to meet cases where person carried gold and diamonds in their bodies to evade detection.
15. Much reliance is, however, placed on the provisions of S. 104 of the Act of 1962 which contains the power of arrest. Section 104 is equivalent to Sections 173 to 175 of the old Act. Under those sections if a reasonable suspicion existed against any person that he was guilty of an offence under that Act, he could be arrested in any place by any officer of Customs or other person duly employed for the prevention of smuggling. Under S. 174 of the old Act every person arrested had forthwith to be taken before the nearest Magistrate or Customs Collector. If he was taken to a Magistrate, then the Magistrate under S. 175 could direct him to be committed to jail or to be kept in the custody of the Police for such time as was necessary to enable the Magistrate to communicate with the proper officers of Customs and it provided that the magistrate should release any such person on his giving satisfactory security. Section 104 of the Act of 1962 restricts the exercise of the power of arrest to officers who are either generally or specially authorised by the Collector of Customs only if they have reason to believe that an offence has been committed. The marked difference between Section 173 of the old Act and S. 104 of the Act of 1962 is that, under the old Act he could arrest on a reasonable suspicion, while under the new section he must have reasonable belief that the person has been guilty of an offence. Certainly, the provision is for the benefit of the Citizen and it is not intended to invest the Customs officers with larger powers. Sub-section (2) of S. 104 of the Act of 1962 is practically similar to S. 174 of the old Act except that the word 'forthwith' has been substituted with the words 'without unnecessary delay'. This, however, means the same thing. It is intended to meet an inconvenience of a temporary duration. Sub-section (3), however, is very much relied for it provides:
'Where an officer of Customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the Code of Criminal Procedure, 1898'.
Now, it is true that there is a reference to an 'officer-in-charge of a police station' in this sub-section. But then the question is what powers of the police officer are given to the Customs officers. The provision does not give the Customs officers the powers of the officer-in-charge of a police station in respect of investigation and report. Instead of defining power to grant bail in detail saying as to what they should do or should not do, the short and expedient way of referring to the powers of another officer when placed in somewhat similar circumstances has been adopted. By its language the sub-section does not equate the officers of Customs with an officer-in-charge of a police station, nor does it make him one by implication. It only, therefore, means that he has got powers as defined in the Code of Criminal Procedure for the purpose of releasing such person on bail or otherwise. It is argued that the power of giving bail involves the power of putting pressure or what is called ascendancy over the citizen. The words used must be read in the context in which they are used and with reference to sub-section (2). Sub-section (2) requires a person arrested to be taken to a Magistrate. Under the old Act only the Magistrate could grant bail. This would evidently, involve much inconvenience both to the department and to the person concerned. If the officer finds that his belief is unfounded, then it must be within his power to release such person without bail. If however, he thinks that larger enquiry is necessary before he can be exonerated, then he is entitled to call for bail. It is argued that a officer, if so minded, may demand a very heavy bail which the citizen may not afford. This provision as any other statute should be construed not on the assumption that the power will be abused. It must be construed would act reasonably particularly when a further safeguard is provided by sub-section (2) which requires the officer to take the person arrested to a Magistrate. Some argument was also sought to be made saying that the power to release on bail or otherwise may mean that the person may be detained. We are not prepared to hold that that is the meaning to be attached to the words used. By these words the officer is given an option while releasing the arrested person to either require him to furnish bail or release him without bail. If he wants to detain him, then he must immediately take him to a Magistrate as provided by sub-section (2).
16. Sub-section (2) of S. 105 of the Act of 1962 was also to some extent emphasized which in many respects is similar to S. 172 of the old Act except that under the old section a warrant for search was to be obtained from a Magistrate while under Section 105 of the Act of 1962 the power is given to the Assistant Collector of Customs or in certain areas to an officer of Customs specially empowered by name in this behalf by the Central Board of Revenue on certain conditions being satisfied. Sub-section (2) of S. 105 of the Act of 1962 provides that for the purpose of search the provisions of the Criminal Procedure Code relating to searches shall, so far as may be, apply to searches under this section with the modification that in sub-section (5) of Section 165 of the Code, the word 'Magistrate' shall be substituted by the words 'Collector of Customs'. This again does not give any additional power to the Customs officer so as to enable him to have ascendency over the citizen.
17. Section 106 of the Act of 1962 gives power to search an aircraft.
18. Sections 107 and 108 of the Act of 1962 relate to examination of person and giving of evidence. Section 107 enables a Customs officer empowered in this behalf by general or special order of the Collector of Customs to examine any person in the course of any enquiry and call upon him to produce or deliver an document or thing relevant to the enquiry. This section is new. Section 108(1) of the said Act corresponding to Section 171-A of the old Act, enables any gazetted officer of Customs to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which he is making in connection with the smuggling of any goods. Sub-section (3) of the said section requires that all person so summoned shall be bound to attend either in person or by an authorised agent, as the officer may direct, and they shall be bound to state the truth upon any subject in respect of which they are examined. Under sub-section (4) such an inquiry shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code.
19. Section 110 of the Act of 1962 is parallel to S. 178 of the old Act and there is no essential difference except for the fact that the proper officer may seize any documents or things which will be useful or relevant to any proceedings under the Act.
20. It would be once be evidence from a comparison of these sections that S. 107 of the Act of 1962 enables the officer to make an informal inquiry. But, even there it is not as if any and every officer of Customs can exercise the powers contained in S. 107 of the said Act. It is necessary that the officer must be empowered either by general or special order b the Collector of customs to exercise these powers. To some extent at least there is a proper safeguard in the exercise of those powers. Sections 108 of the Act of 1962 relates to a formal inquiry where a person can be required to give evidence and produce documents by issuing summons. The power, however, can be exercised by only a gazetted officer.
21. The resume of the various provisions made above clearly indicates that the whole purpose of the Act of 1962 is to safeguard the revenues of the country and its economy. It has nothing to do with the maintenance of law and order to prevention of crimes. It is intended to prevent evasion of duty and in order that the duty might not be evaded, the evasion is made an offence and it is only to a limited extend and for that limited purpose that powers of searches, seizure and investigation are given to the Customs officers. Further reference to the provisions also shows that it is not obligatory on the Customs authorities to prosecute every person who has violated the provisions of the Act of 1962. Indeed, it must depend upon the facts of each case. There may be cases which are not of much importance and there
may also be cases which by their gravity might be serious. In some cases no prosecution might be called for while in the other prosecution may be come necessary. If, therefore, the test as laid down in Badaku Joti's case, : 1966CriLJ1353 , is to be applied, inasmuch as the Customs officers are not equated with police officers acting under the Criminal Procedure Code and are not bound to make a report, it is clear that they cannot be regarded as police officers and statements recorded by them cannot be hit by S. 25 of the Indian Evidence Act.
22. Even if we were to adopt the test laid down in Raja Ram's case, : 1964CriLJ705 , i.e., one of ascendency and opportunity of extracting confessions as we have pointed out, Section 104(3) of the Act of 1962 read in its context does not give any ascendency whatsoever to the officer over a citizen merely because the power of granting bail has been given to him. A police station has a lock-up which is in charge of police officers. When a police officer keeps a person in the lock-up, he has sole charge of the prisoner and he has opportunity of extracting a confession. Neither the Sea Customs Act, 1878, nor the Act of 1962 provides the Customs officers with a lock-up under their control. Their actions are open to view as those of any other officer in his office and they cannot, therefore, extract any confession from the person whom they are questioning. The observations made in Raja Ram's case, AIR 1964 828, that the power of granting bail enables an officer to exercise authority over the person and influence his conduct must indeed have been made by their Lordships in the context of Bihar and Orissa Excise Act. How far the power of granting bail gives ascendency to the officer concerned over the citizen must depend upon the provisions of the statute giving such powers. Under these Acts, if the officer does not release the arrested person on bail or otherwise, he must take him to a Magistrate. Even this test, in our view, is not satisfied under the present Act.
23. The Full Bench of Madras High Court in collector of Customs, Madras v. Kotumal, : AIR1967Mad263 , has taken a similar view with which he respectfully agree.
24. Mr. Ashok Desai then contends that the statement having been obtained by the Customs authorities under S. 108 of the Act of 1962 under power of compulsion must be hit by Article 20(3) of the Constitution of India. Having regard to the decisions of this Court and the Supreme Court, this contention must be rejected. It has been held in State v. Devsi Dosa, 62 Bom LR 316 =AIR 1960 Bom 443; Narayanlal Bansilal v. M. P. Mistry, : 1SCR417 ; State of Bombay v. Kathi Kalu, : 1961CriLJ856 ; and : AIR1965Bom195 , that in order that Art.20(3) of the Constitution should apply, the statement must have been recorded at a time when there was a formal accusation against the person concerned. If his statement is recorded at a time when there is no formal accusation against him, they merely because he subsequently becomes an accused, the said article cannot apply. This contention, therefore, must also be repelled.
25. Mr. Desai then contends that by reason of the provisions of S. 5 (2) of the Criminal Procedure Code, an inquiry by the Customs Procedure Code, an inquiry by the Customs officer becomes an inquiry under Chapter 14 of the Criminal Procedure Code and, therefore, section 162, Cr. P. C. would be attracted and the statement would not be admissible. In the first place, a Customs officer is not a Police Officer. As Section 162, Cr. P. C., by its terms requires that the statement must be made to a Police officer in an investigation under the said chapter, the said section can never be attracted in the present case. Section 5 (2) of Criminal Procedure Code which provides that offences under other laws shall be investigated under the Code, is subject to the qualification 'subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into, trying or otherwise dealing with such offence'. In our view, the Act of 1962 is such an enactment which has provided its own procedure for investigating into offences committed under it and the provisions of Chapter 14, Cr. P.C., therefore, would not apply to such investigations. Apart from this, the offences under the Act of 1962 are non-cognizable. In any event, Section 162, Cr. P. C. would not apply to such cases as Customs officers are not Police officers.
26. In the result, the rule is discharged in all the applications and the interim stay granted by this Court is vacated. Writ to be sent to the trial Court immediately.
27. Rule discharged.