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Collector of Customs, Madras Vs. Kotumal Bhirumal Pihlajani and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Revision Case No. 1374 of 1965, (Crl. Rev. Petn. No. 1350 of 1965)
Judge
Reported inAIR1967Mad263; 1967CriLJ1007
ActsIndian Penal Code (IPC), 1860 - Sections 120-B; Customs Act, 1962 - Sections 107, 108 and 135; Foreign Exchange Regulation Act - Sections 23(1)(A) and 23(B); Defence of India Rules - Rule 131-B; Evidence Act - Sections 25; Code of Criminal Procedure (CrPC) - Sections 5(2), 161 and 162; Constitution of India - Article 20(3); Sea Customs Act - Sections 171-A
AppellantCollector of Customs, Madras
RespondentKotumal Bhirumal Pihlajani and ors.
Cases ReferredBhagwandas Goenka v. Union of India
Excerpt:
customs act (lii of 1962), sections 107 and 108--statements recorded by enquiring officers of customs--not inadmissible in later criminal trials by reason of bar under section 25 of indian evidence act (i of 1872), section 102 of criminal procedure code (act v of 1898) and article 20(3) of constitution ;on the question raised as to whether statements recorded by enquiring officers of the customs department under section 107 (108) of the customs act (lii of 1962), were inadmissible in evidence in a criminal trial by reason of the bar under:;(i) section 25 of the indian evidence act (i of 1872);; (ii) section 162 of the criminal procedure code ; (act v of 1898); and ; (iii) article 20 (3) of the constitution,;held, that for the purpose of section 25 of the evidence act, it was important to..... (1) in view of the ultimate order which i propose to pass in this case, namely, for reference to an appropriately constituted bench, i shall refer to the facts of this revision case as well as the arguments advanced, therein briefly.(2) a compliant was laid by the collector of customs, madras against ten persons for offences under section 120-b i.p.c. (conspiracy) read with section 135 of the customs act 1962 (central) act 52 of 1962 (concerning smuggling of prohibited goods including possession knowing or having reason to believe them to be smuggled and therefore liable to confiscation), under section 23(1)(a) and 23(b) of the foreign exchange regulation act and under rule 131-b of the defence of india rules (illegal possession of gold). the complaint arose out of an incident which.....
Judgment:
(1) In view of the ultimate order which I propose to pass in this case, namely, for reference to an appropriately constituted Bench, I shall refer to the facts of this revision case as well as the arguments advanced, therein briefly.

(2) A compliant was laid by the Collector of Customs, Madras against ten persons for offences under Section 120-B I.P.C. (conspiracy) read with Section 135 of the Customs Act 1962 (Central) Act 52 of 1962 (concerning smuggling of prohibited goods including possession knowing or having reason to believe them to be smuggled and therefore liable to confiscation), under Section 23(1)(A) and 23(B) of the Foreign Exchange Regulation Act and under rule 131-B of the Defence of India Rules (illegal possession of gold). The complaint arose out of an incident which involved transport from Bombay to Madras of 750 bars of gold each weighing ten tolas, whose value would exceed Rs. seven lacks. It was alleged that out of those, 700 bars were brought in a car from Bombay to Bangalore in the first instance where the car broke down and then another car was engaged. Ultimately the gold was brought to Hotel Woodlands, Roypettah, Madras and stored in room No. 32. The Customs Officers on receiving information, kept a watch on the aforesaid room, which was found locked. Accused 3 and 4 were traced in a room in Hotel Desaprakash Madras and were questioned at that hotel by the Customs officers. Nothing incriminating was found in the room in the latter hotel. But on a search of the room in the Woodlands Hotel, 700 bars of gold were recovered from under a mattress on a cot. Statements were recorded from accused 3 to 9, by P.W. 1, Inspector of Customs, and also by some other customs Authorities, A compliant was filed by the Collector of Customs, After a preliminary enquiry, the Second Presidency Magistrate, George, Town, committed the accused to take their trial at the City Sessions Court, Madras, after discharging accused 4. In the committal order, the Magistrate confined the charges to the transaction connected with the 700 bars of gold, as in his opinion the transaction in regard to the 50 bars was a distinct one.

(3) Thereafter 17 charges were framed on 29-10-1965 by the learned Sessions Judge against 9 accused persons for the various offences mentioned above. A special Public Prosecutor was engaged to appear for the Collector of Customs, and the accused were represented by a number of counsel. When the hearing before the Sessions Court Commenced, the prosecution wanted to file the statements recorded by the Customs Officer, P.W. 1, from the several accused persons, Certain preliminary objections were raised by the accused's counsel, to the admissibility of these statements in evidence. It was argued firstly that the officer of the Customs Department, who recorded the statements, must be deemed to be a police officer and that since the statements were of a confessional nature, they could not be admitted in evidence under Section 25 of the Indian Evidence Act. The second objection was that the investigation conduct by the Customs officer must be deemed to be under Ch. XIV read with Section 5(2) of the Cri. P. C. and therefore the statements would be inadmissible under Section 161 read with Section 162 Crl. P. C. The third objection was based on Art. 20(3) of the Constitution of India, that no person accused of any offence shall be compelled to be a witness against himself. In regard to this last mentioned preliminary objection, I find no reference to it in the order of the learned Sessions Judge. But it was urged before me by learned counsel Sri. S. Govind Swaminathan appearing for some of the respondents in this revision, that this ground was also urged in the lower court, but that no finding was given by the lower court on that objection. But since it was a substantial point of law, I permitted him to urge that objection also before this court, for supporting the lower court's order.

(4) The learned Sessions Judge upheld the first two objections mentioned above and held that the statements given by the accused persons to the Customs officer could not be received in evidence. Against this order, the Collector of Customs, Madras, the complainant in the case, has filed this revision case to this court challenging the order of the Sessions Judge.

(5) I will take up for consideration first the last of the points mentioned above because primarily it is that point which has necessitated the reference to a Bench. As mentioned already, this revision case was filed by the Collector of Customs in this court because the felt aggrieved by the order of the Sessions Court refusing to mark in evidence the answers given by accused 3 to interrogatories supplied to him by P.W. 1, a gazetted officer of the Customs department, during an enquiry under Section 107 of the Customs Act of 1962. Whereas Section 107 refers, to an "enquiry" by a Customs officer, specially empowered for the purpose, Section 108 refers to an "enquiry" by a customs officer of Gazetted rank, and this latter "enquiry" under S. 108 appears to be more formal than the former "enquiry" mentioned in Section 107: but so fat as the present proceedings are concerned, the principles involved are common to both S. 107 and S. 108. The terms of S. 108 of the Customs Act and Section 171-A of the Sea Customs Act are substantially identical. Section 108 makes it further cleat that the power of issuing summons to give evidence or produce a document in an enquiry made in connection with the smuggling of goods, has to be exercised by a gazetted officer of the Customs Department. Section 108(4), just as S. 171-A(4), prescribes that the enquiry shall be deemed to be a judicial proceedings, within the meaning of Section 193 and Section 228 I.P.C. The petitioner is apprehensive that unless an order is obtained at this state correcting the decision of the lower court, a similar interdiction would be placed in regard to statements of other accused also given during the aforesaid enquiry under Section 107 and further that these statements are very material for the disposal of the sessions case.

(6) Learned counsel Sri Govind Swaminathan appearing for the respondents accused before me in addition to supporting the finding of the lower court on the first two objections mentioned above, urged that in any event, these statements would be hit by Art, 20(3) of the Constitution of India, which states that no person accused of any offence shall be compelled to be a witness against himself. He referred to the observation of a Bench of this court in Rainbow Trading Co. v. Asst. Collector of Customs, . That case arose out of an enquiry under Section 171-A of the Sea Customs Act of 1878. The appellant, who was suspected to have imported goods through the customs under a misdescription of the items in the licence, was summoned to give evidence and produce relevant documents relative to the imports of the goods in question. The appellant declined to give evidence and when he was warned by the department that failure to comply with the summons would entail prosecution, he filed an appeal to the Collector of Customs, then a revision to the Central Government and on failing at these stages, he applied to the High Court by means of a writ petition under Art. 226 of the Constitution. He urged in his support that Section 171-A of the Sea Customs Act, in so far as it compelled a person to give evidence at the enquiry held thereunder, was ultra vires as offending Art, 20(3) of the Constitution, as well as Art, 14 of the Constitution. Balakrishna Aiyer J. repelled these contentions and dismissed the writ petition. Then the appellant preferred an appeal to a Bench of this court. The Bench held that the enquiry under Section 171-A did not contravene Art. 14 of the Constitution and confirmed the decision of Balakrishna Aiyer J. There after, the learned Chief Justice Ramachandra Iyer observed (at page 441):

"It 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 Art, 20(3) itself, would become 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 with 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 Art. 20(3) will prevent it from being so used. So much can be taken as settled by . Therefore any incriminating answers

which a person examined under Section 171-A may give, can only be used for the purpose of the department punishment and not for a prosecution in a criminal court."

(7) The other learned Judge who participated in the Bench decision., Anantanarayanan, J. concurred with this view any expressed himself at page 449 of the report in the following way:

"In the instant case, it cannot be said the protection can be invoked to justify the appellant in declining to appear before the authorities, at the stage of the enquiry itself, and to state facts within his knowledge. In other words, it is distinctly at a premature stage that the protection has been claimed for the appellant. Of course, it is a heavy and true objection that the testimony thus compelled in this guise of proceedings under Section 171-A of the Sea Customs Act might be later utilised to prosecute the appellant, and thus effectively divest him of the protection of Art, 20(3) by taking two steps, instead of one. The answer to this objection has been clearly demonstrated, if I may say so with respect, by my Lord, the Chief Justice, such compelled testimony cannot be later relied on or used in a criminal prosecution; as at that stage the protection of Art. 20(3) will be available to the appellant."

Relying on the observations mentioned above, learned counsel Sri Govind Swaminathan for the respondents, urged that the statements recorded from the accused persons in this case during the Section 107 enquiry, cannot be used in the criminal prosecution now pending against them by reason of the bar under Article 20(3) of the Constitution.

(8) Learned counsel Sri V. T. Rangaswami Aiyangar, arguing contra, represented that the two observations mentioned above are based upon the decision of the Supreme Court in M. P. Sharma v. Satish Chandra , where the following observation is found at page 430 of the report (SCJ): (at. p. 302 of AIR).

"The fundamental guarantee in Art. 20(3) comprehends within its scope not merely oral testimony given by an accused in a criminal case pending against his, but also evidence of whatever character compelled out of a person who is or is likely to become incriminated thereby as an accused. It therefore extends not only to complied production of document by an accused from his possession, but also to such compelled production of oral or documentary evidence from any other person who may become incriminated thereby as an accused in future proceedings."

(9) The reference in the above two sentences, to a future state of affairs, apparently led to the view expressed by the two learned Judges extracted above in the Bench decision of this court. But the Supreme Court in another decision given by 11 Judges and reported in State of Bombay v. Kathikalu, held the view that the

observation in covered a much wider field than what the facts of that case warranted (the impugned statement in that case was given after the F. I. R. had been laid against the person making the statement) and therefore the entire scope of Art, 20(3) of the Constitution was considered afresh by the Supreme Court and re-interpreted under 7 items of findings of which item 7 which is relevant for our purpose is in the following terms (at page 1817):

"7. To being the statement in question within the prohibition of Art. 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 (underlining (here into ' ') mine)"

It does not appear from the judgments of the Bench of this court in that the attention of the learned Judges was drawn to the later judgment of the Supreme Court by 11 Judges re-interpreting the scope of Art, 20(3) of the Constitution. Learned counsel, Sri. V. T. Rangaswami Iyengar for the petitioner referred to a Bench decision of the Bombay High Court reported in Laxman Padma v. State, , where the Bombay High Court has noted the further

clarification by the later decision of the Supreme Court on the scope of Art, 20(3) of the Constitution, modifying the view in Sharma's case, . Differing from the Madras High Court's view, the

Bombay High Court came to a diametrically opposite conclusion, which is stated at p. 216 of the report to the effect (and observed) that a person examined under S. 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 and that the fact that subsequent to the making of the statement he become an accused person is not sufficient to bring the statement within the mischief of Art, 20(3) of the Constitution.

(10) Again, the Supreme Court in Narayanlal v. M. P. Mistry, dealt with a case which arose under the Companies

Act. Certain observations therein as to the stage at which an incriminating statement can be considered as outside the purview of Art, 20(3) of the Constitution will be relevant, viz,

"At the commencement of the enquiry and indeed throughout its proceedings there is no accused person, no accuser and no accusation against any one that he has committed an offence. In our opinion, a general enquiry and investigation into the affairs of the company thus contemplated cannot be regarded as an investigation which starts with an accusation contemplated in Art, 20(3) of the Constitution."

(11) In view of the foregoing subsequent decision and in particular in view of that fact that the Bench decision appears to have relied upon Sharma's case, and the later decision of the Supreme Court in was not brought to the notice of the learned Judge, learned counsel for the respondents urges that the observations of the Bench in may require reconsideration. I am in agreement with this view and consequently I direct this revision case to be placed before the Hon'ble the Chief Justice for disposal if necessary by a larger Bench duly constituted for that purpose.

(12) I will next refer to the arguments by the learned counsel for the petitioner on the first and second objections mentioned earlier in this order. The first objection arises out of the much discussed question of the application of Section 25 of the Indian Evidence Act. There were statements of accused person recorded by an enquiring officer who may not be strictly a police officer within the meaning of the Police Act (Which too however does not define who a police officer is) but who may be, by a special law, either deemed to be a police officer for the purpose of investigation into offences under special laws or empowered also by a special provision to exercise the powers of investigation conferred on police officers in Chapter XIV of the Crl, P. C. The decision given on this question has arisen in the context of several special laws. In State of Punjab v. Barkatram, , the question arose out of an investigation under the Land Customs Act, 1924 whose terms were similar to the Sea Customs Act, 1878. There was no provision in the Sea Customs Act as well as in the Land Customs Act and also in the Customs Act 1962 either deeming customs officers as police officers for the purpose of investigation into smuggling offences or specifically giving them powers of investigation conferred on an officer in charge of the police station under Chapter XIV Crl. P. C., So, their Lordships had to deal with a question how far the fact that certain wide powers of investigation into offences contravening the provisions of the Land Customs Act (Sea Customs Act) would make them police officers, so as to attract the bar of Section 25 of the Indian Evidence Act to the statements recorded by them. While dealing with this question, their Lordships extracted a list of the powers of investigation mentioned in the several, sections of the Land Customs Act (Sea Customs Act) and held that they would not make the Customs Officers police officers for the purpose of Section 25 of the Evidence Act. But they qualified their observations by the statement that they did not express any opinion on the question whether officers of departments other than the police on whom the powers of an officers in charge of a police station under Ch. XIV Crl. P. C. have been conferred are police officers or not for the purpose of Section 25 of the Evidence Act.

(13) The last mentioned point came up for decision in a later judgment of the Supreme Court reported in Rajaram v. State of Bihar, . That case arose under the Bihar and Orissa Excise

Act, 1915, which had a provision under Section 78(3) to the effect that any excise officer empowered under Section 77(2) of that Act shall, for the purpose of Section 156 Crl. P. C. be deemed to be an officer in charge of a police station with respect to the area to which his appointment as an Excise officer extends. Section 156 Crl. P. C. gives powers to an officer in charge of a police station to investigate into cognisable offences without the order of a magistrate. Therefore, the Supreme Court pointed out that from these provisions, it would follow that from that an Excise Inspector or Sub Inspector in Bihar shall be deemed to be an officer in charge of police station and is in that capacity entitled to investigate any offence under the Exercise Act, within that area without the order of Magistrate. They, therefore, held that a confession recorded by him during an investigation into an exercise offence cannot responsibly be regarded as anything different from a confession to a police officer. They also pointed out the distinction between the Bihar and Orissa Excise Act and the sea Customs Act in two respects, one what that the former does not exercise any judicial powers just as the Customs Officer under the Sea Customs Act and the second was that the customs officer is not deemed to be an officer in charge of a police station and therefore can exercise no powers under the Criminal Procedure Code, and certainly not those of an officer in charge at a police station.

(14) Both before and after the Supreme Court decisions referred to above, there have been decisions dealing with special or local laws, cases where the scope of Section 25 of the Act has come in for interpretation, in the context of special provisions in the Act granting to investigating officers the powers of an officers in charge of a police station for the purpose of investigation. They are:Public Prosecutor v. Paramasivam, (Opium Act); Nanoo Sheik Ahemed v. Emperor, ILR 51 Bom 78: (AIR 1927 Bom 4)(FB)(Bombay Abkari Act); Amin Shariff v. Emperor, ILR 61 Cal 607; (AIR 1934 Cal 580)(Bengal Excise Act) and Somewar H. Shelat, In re, 1946 Mad WN (Cri) 47; (AIR 1946 Mad 430)(Hoarding and Profiteering Prevention Ordinance). There are parallel set of decisions, where, in the absence of a provision in the special enactment's investing the investigating officer with the powers of investigation of an officer in charge of a police station, the statement of such an investigation officer was held to be not hit by Section 25 of the Evidence Act. They are; Venkata Reddi v. Emperor, 1947 Mad WN Cri 120: (AIR 1948 Mad 116)(Prohibition Act), Vadivel Gounder v. State, (Prohibition Act).

and Srinivasa Narasimha Bayanker v. State, 1954 Mad Wn (Cri) 187 (prohibition Act) Relying on these decisions, learned counsel Sri V. T. Rangaswami Aiyangar appearing fir the petitioner, urged that in the absence of any specific provision in the Customs Act, 1962, investing the customs officers with the powers of investigation of an officer charge of a police station and view of the confirmation on such officers of quasi judicial powers which no police officer in charge of a police station enjoys, the view of the lower court that Section 25 of the Indian Evidence Act would apply to the statements is erroneous.

(15) Sri Govind Swaminathan for the respondent does not dispute the proposition that there is no provision in the Customs Act, 1962, which invests the enquiring officers under that Act, with the powers of investigation of an officer in charge of a police station. But he supplied to me a tabular statement giving a list of powers given to enquiring officers under several enactment's like Sea Customs Act, 1878, Madras Excise Act. Indian Opium Act and finally the Customs, Act 1962 According to him an examination of these powers would show that in the latest enactment, namely, Customs Act 1962, such wide powers of search, seizure, interrogation for oral testimony. summons to produce documents, arrest, grant of bail are conferred upon the officers of the Customs department, that they, exercise, in substance, the powers of an officer in charge of a police station for the purpose of investigating into offence arising out of the provisions of the Customs Act 1962, and therefore, notwithstanding the absence of a deeming provision in the Customs Act 1962, since they in substance exercise the powers of a police officer, Section 25 would interdict their statements from being received in evidence. In particular, learned counsel refers to Section 104(4) of the Customs Act 1962, which makes all the offence under the new Act non-cognisable. The effect of this provision is that no police officer can investigate offence under the Customs Act notwithstanding the fact that being punishable with imprisonment for a period of more than two years (Section 135(b)(i) prescribes a sentence of five years) they would be normally cognisable hearing in mind the provision in Schedule I to the Cri. P. C. under the heading. "Offence against other laws." In the order now under revision the learned Sessions Judge observed that the decision in laid down two dominate tests for deciding whether a customs officer can be considered to be a police officer with reference to Section 25 of the Indian Evidence Act. According to the learned Judge they would be (1) it is not totality of the powers which an officer enjoys but the kind of powers which the law enable him to exercise and (2) whether such powers establish a direct or substantial relationship with the prohibition enacted by Section 25, that is the recording of a confession. In other words, whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or a delinquent. These tests are no doubt stated in the decision in . Learned Counsel Sri. V. T. Rangaswami Aiyangar for the petitioner argued that the application of these tests cannot be divorced from another equally significant requirement that the enquiring officer who exercise those powers must have been conferred under the specific terms of the special law with the powers of an officer an charge of a police station or under terms with (what is to be) a similar purport for the purpose of investigation into offences under the special law. In my opinion, this argument has considerable force because the observation in the decision in must be read in the context of the Bihar Excise Act

under which it was given, and to which I have already made reference. In fact, no decision has been cited before me, where divorced from any such deeming provision, and solely by the examination of the totality of the powers of investigation granted to an officer under a special or local law statements recorded by him have been excluded under Section 25 of the Evidence Act. No doubt he may be a person in authority and he might have applied coercion or influence to extract statements so as to attract the bar under Section 24 of the Indian Evidence Act. But that is not the question for consideration in the present case. It is equally significant that in the decision in the

Excise officer exercising the powers of investigation had no judicial power while in the Customs Act 1962 as prominently as it was in the earlier Sea Custom Act, the Customs officer is given judicial powers for deciding the culpability for contravention of the smuggling laws and imposing appropriate penalties for such contravention inducing confiscation and find. In fact, S. 171-A (4) treats the proceedings as a judicial proceeding within the meaning of Sections 193 and 228 I.P.C. However, in view of the fact that I am referring one other question arising out of this, namely, the one under Art, 20(3) to a Bench, this objection dealt with in the foregoing paragraphs may also be dealt with by the Bench constituted for the purpose because of the importance of the question involved, the frequency with which it may arise in future cases under the Customs Act, 1962, and the necessity to obtain an authoritative decision of a Bench which will be of help to authorities as well as subordinates dealing with the question in future. Therefore, without expressing my final view on this point, I will also refer if for adjudication by a Bench.

(16) The second objection raised in the lower court against the admissibility of the statement was based upon Section 162 Cri P. C. This prohibits the receipt of, as evidence in court, all statements recorded by a police officer in the course of investigation under Ch. XIV Cri. P. C. According to the learned counsel for the respondents S. 5(2) Cri. P. C. states that all offence under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but 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 offences, but in the Customs Act, 1962, we have a special law which amounts to a self-contained Code for the purpose of holding an enquiry under that Act, and further Chapter XIV Cri. P. C. where S. 162 is found, in terms refers to the procedure for investigation by an officer in charge of a police station, in respect of cognisable offences. As against this, it is pointed out by the learned counsel for the petitioner, that Section 101(4) of the Customs Act, 1962, makes all offences under the new Act non-cognisable, thereby excluding the jurisdiction of police officers to investigate such offences and also would exclude the application of S. 162 Crl. P. C. In view of my referring the other two points for decision to the Bench and since this point is closely allied to the first objection mentioned above, this objection also will be placed for decision by the Bench. The points for decision are therefore: Are statements recorded by enquiring officers of the Customs department under Section 107(108) of the Customs Act 1962 inadmissible in evidence in a criminal trial by a reason of the bar under: (1) Section 25 of the Indian Evidence Act; (2) Section 162 Cri. P. C. and (3) Ari. 20(3) of the Constitution.

(Pursuant to the aforesaid order of reference, this petition coming on for hearing before the Full Bench, the Court expressed the following Opinion)

Ramakrishnan, J.

(17) The circumstances which led to this reference to a Full bench of this Court have been set down in some detail in the order of reference made by one of us, and it is not necessary to recapitulate them. The point referred to our decision us:

"Are statements recorded by enquiring officers of the Customs department under Section 107(108) of the Customs Act 1962 inadmissible in evidence in a criminal trial by reason of the bar under: (1) Section 25 of the Indian Evidence Act; (2) Section 162 Cri. P. C. and (3) Art, 20(3) of the Constitution."

We will take up first for consideration, the question as to how far statements recorded by officers of the Customs department under Section 107 or Section 108 of the Customs Act 1962, (Act 52 of 1962) would be hit, for the purpose of admissibility in evidence in a criminal trial by reason of Section 25 of the Indian Evidence Act; in other words, whether the officers of the customs department, investigating into a smuggling offence, can be considered to be police officers, within the meaning of Section 25 of the Indian Evidence Act. Section 107 of the Act 52 of 1962 reads thus: (Section quoted)

Section 108 reads thus: (Section quoted).

(18) We purpose to go into the scope and extent of the powers of investigation, conferred by the Customs Act of 1962, in some detail a litter later in the judgment. But in the meantime, it will be useful to set down the gist of the decision bearing on the subject, to enable a proper appreciation to be made, of provisions for investigation by Customs officers contained in Act of 1962.

(19) In , the Supreme Court has to consider the effect of S. 25 of the Evidence Act, on statements recorded by a customs officer either under the Land Customs Act 1924 (Act XIX of 1924) or under the Sea Customs Act 1878 (Act VIII of 1878), and whether the customs officer, under the two provisions last cited, is a police officer within the meaning of that expression in S. 25 of the Evidence Act. The relevant provision for enquiry in the Sea Customs Act, 1878 was contained in S. 171-A whose terms were more or less analogous to those in S. 108 of the Act of 1962, with the difference that S. 108 of the Act of 1962 refers to a gazetted officer. Sec. 107 of the Act of 1962 given the power of investigation, to be conducted in a less formal manner, to an officer of the customs department specially empowered in that behalf, with the qualification that such an enquiry will not have the advantage of being considered to be a judicial proceeding as in the case of the enquiry under S. 108. The majority of the Supreme Court, comprising of Kapur and Reghubar Dayal JJ. after making an analysis of the relevant provisions of the Sea Customs Act, held that the customs officer under the old Sea Customs Act could not be considered to be a police officer for the purpose of S. 25 of the Indian Evidence Act. They relied inter alia on the following Special provisions in that Act: (1) The Act conferred on them powers to make search, powers to arrest and powers to record evidence, but those powers would not suffice to make them police officers as contemplated in S. 25 of the Indian Evidence Act, even if one were to assume, as held by certain High Courts, that officers on whom the powers of an officer in charge of a police station under Ch. XIV Cr.P.C. have been conferred, were police officers for the purpose of Section 25 of the Evidence Act. (2) The powers which the police officers enjoy, are powers for the effective prevention and detection of crime in order to maintain law and order; but the powers conferred on customs officers are intended for the purpose of checking the smuggling of goods, the due realisation of customs duties, and to determine the action to be taken by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines in the interest of the revenues of the country this would be clear from the preamble to the Sea Customs Act, which states "whereas it is expedite to consolidate and amend the law relating to the levy of sea customs duties". The duties of customs officers are very much different from those of the police officers, though certain powers which they possess may have similarity with those of police powers, but those powers wee intended for the purpose of detecting the smuggling of goods, and the persons responsible for it, and they would not make the customs officers, police officers (3) There are provisions in the Sea Customs Act which refer to a police officer in contradistinction to a customs officer. The said sections are Ss. 118 and 184. This circumstances also leaves no room for doubt that a customs officer is not an officer of the police (4) A reference to the scope of the inquiry under Section 171-A of the Act, and the powers conferred therein, and in particular the provision for treating the enquiry as a judicial proceeding, would show that the legislature did not contemplate the treating of statements recorded by such officers on a par with the statements recorded by police officers during investigation under the Criminal Procedure Code, because no proceeding before a police officer is taken to be a judicial proceeding for the purpose of Section 193 and Section 228 I.P.C. or for any purpose.

(20) However, learned counsel who appeared for the respondents herein who are the accused in sessions case No. 13 of 1965, urged that the revised Customs Act 1962 (Act 52 of 1962) contain so many new provisions which confer extensive powers of investigation customs officers, that the view laid down by the Supreme Court in in regard to the old Customs Act, will cease to apply to the case of an investigation under the new Act. For this purpose, the learned counsel supplied us with a comparative statement of the different provisions of the two enactments and he also gave extracts of the relevant provisions from the Opium Act (Act I 0f 1878), the Bihar and Orissa Excise Act (Act 2 of 1918), The Central Excises and Salt Act (Act I of 1944). We will confined our attention to the parallel provisions of the old Sea Customs Act and the revised Act, Act 52 of 1962, and refer to the other enactment's in the particular contexts where such reference is necessary. First of all, the preamble to Act 52 of 1962 states that it was an act "to consolidate and amend the law relating to customs". The preamble to the old Customs Act has already been referred to earlier in this judgment. But the modification in the preamble of the new Act has little or no effect on the question we have to consider. All that the new preamble implies is that the legislature intended to pass a consolidate Act for the purpose of dealing with matters affection customs. The provisions which are purely analogous, in the old and new Customs Act, can be considered under the categories of (1) power to arrest (Section 173 of the old Act and Section 104(1) of the new Act); (2) power of search (Section 172 of the old Act and Section 105(1) of the new Act); (3) the procedure after arrest (Section 104 of the old Act and Section 102 of the new Act,) and (4) power to investigate (Section 171-A of the old Act and Section 107 and 108 of the new Act). It is undeniable that there are differences in the wording used between the old rules and the new rules under the categories mentioned above, and we examined these provisions after setting them side by the side in so as to bring into greater focus the nature of these verbal alternation; but it is not necessary to extract them here, because it is common ground, that the substantial differences between the two enactment's, are contained (i) in the procedure after arrest (ii) in the procedure for investigation and (iii) in the procedure for search.

(21) In regard to the procedure for arrest, Sections 104(2) of the Act of 1962, states that where an officer of customs has arrested any person under sub-sec, (i)(if he has reason to believed that any person has been guilty of an offence punishable under Section 135), 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 Criminal Procedure Code, 1898, Section 104(4) states that notwithstanding anything contained in the Criminal Procedure Code 1898 an offense under this Act shall not be cognisable. Under the old Customs Act, Section 174 provided that every person, arrested on the ground that he has been guilty of an under this Act, shall forthwith be taken before the nearest magistrate or Customs Collector, but there was no analogous provision in the old Act for the grant of bail by the Customs officer himself.

(22) In regard to the procedure for investigation, there was only a single provision in Section 171-A of the old Act. It refers to an inquiry which is treated as a judicial proceeding, and there was a direction that it should be conducted by an officer of customs, duly employed in the prevention of such smuggling. But in the new Act, the provision for investigation has been split up into two sections. Section 107 gives power to any officer of customs specially empowered in this behalf to hold an enquiry in connection with the smuggling of any goods; and for that purpose he can require any person to produce or deliver any document or thing relevant to the enquiry, and examined any person acquainted with the facts and circumstances of the case, but this enquiry involves no compulsion, and the enquiring officer cannot compel the attendance of witness. or compel them to produce documents, and no penalty is attached to the persons who fail to comply with a direction to attend to give evidence or to produce a document. But such an obligation along with a penalty for non-compliance are provided in the case of an inquiry under Section 108: such enquiry has to be made only by a gazetted officer; it is also deemed to be a judicial proceeding. A reference to the powers of investigation conferred on an officer in charge of a police station under Ch. XIV of the Crl. P. C. can be made at this state. S. 160 Crl. P. C. states that the police officer has got power to require attendance before him of persons for examination, and Section 161 provides that such a person shall be bound to answer all questions relating to the case put to him by the police officer other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty of forfeiture. We may also add that S. 104(4) of the new Act, treats all offences under the Act as not cognisable. This would mean that the power of the police to investigate into any offence under the Act of 1962 would be excluded automatically, whereas, if this provision had not been introduced, Sch. II Cri. P. C. dealing with offences against other laws, would have given the police power to investigate into offence under the Sea Customs Act, if punishable with imprisonment for three years and above.

(23) In regard to the power of search, there is an important variation in the new Act (Section 105(1), because an Assistant Collector of Customs, or in any area on the frontier or the costs of India, an officer of customs especially empowered by name, can either make a search himself or otherwise a search by another officer, without obtaining previously a search warrant from a Magistrate, but Section 172 of the Act required such a prior search warrant issued by a magistrate, before a search can be conducted by a Customs officer.

(24) The question that is now pressed before us for consideration is that the wider powers thus shown to have been conferred in the new Act on customs officers, would reveal an intention on the part of the Legislature, to treat them as police officers, within the meaning of Section 25 of the Indian Evidence Act. For this purpose, reliance is placed upon a later decision of the Supreme Court

wherein, the Supreme Court had to interpret certain provisions contained in the Bihar and Orissa Excise Act (Act 2 of 1915) and in particular, Section 77(2) and Section 72, in the context of S. 25 of the Indian Evidence Act, S. 77 (1) was in the following terms.

"A Collector may without the order of a magistrate, investigate any offence punishable under this Act which a court having jurisdiction over the local area within the limits of the Collector's jurisdiction would have power to inquire into or try under the provisions of Chapter XV of the Criminal Procedure Code 1898 relating to the place of enquiry or trial" Section 78(3) of that Act provided that an excise officer empowered under Section 77(2) shall, for the purpose of Section 156 Crl. P. C. be deemed to be an officer in charge of a police station, with respect to the area to which his appointment as an excise officer extends.

(25) Their Lordships carefully pointed out, after making a reference to their earlier decision in that they were examining a point which was left open in that decision, namely, whether officers of departments other than police, on whom the powers of an officers in charge of a police station under Ch. XIV Crl. P. C. were conferred, were police officers or not for the purpose of Section 25 of the Evidence Act. This would make it clear that in the later decision their Lordships were dealing exclusively with the interpretation of the Bihar and Orissa Excise Act of 1915, with particular reference to Section 78(3) contained therein, when terms (sic) are given above.

(26) There are, in the course of the judgment in ,

certain observations which were relied upon by the counsel for the respondents before, us and which were also pressed into service in the order of the Sessions Judge, for holding that the customs officer exercising powers of investigation under Central Act 52 of 1962 is a police officer for the purpose of Section 25 of the Indian Evidence Act. Thus, at page 833 of the report, the learned Judges observed that for the purpose of determining as to who can be regarded a "police officer" for the purpose of Section 25 of the Evidence Act, the test is not the totality of the powers which an officer enjoys but the kind of powers which the law enables him to exercise. They make this position clear later on by remarking that the test will be to find out whether, such powers 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 of substantial relationship with the prohibition enacted by Section 25, Indian Evidence Act, that is, the recording of a confession. Then they observe 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. They also observe that a customs officer who seizes or confiscates an article suspected to be contraband, has to furnish on demand of the person in charge of the thing so seized, a statement in writing of the reasons for such seizure, and a similar obligation is enjoined on him to give reasons in the case of a person arrested by him but no such duty is cast upon a police officer seizing an article or arresting a person. But, after making these remarks, their Lordships have given the gist of the conclusions thus:

"It is worthy of note that the powers of investigation into offences which a police officer enjoys are not conferred upon a Customs officer. It is the possession of these powers which enables police officers and those who are deemed to be police officers to exercise a kind of authority over the persons arrested which facilitate the obtaining from them statements which may be incriminating to the person making them...... It is the power of investigation which established a direct relationship with the prohibition enacted in S. 25". They also drew attention to the fact that one test of the investigation being analogous to the investigation conducted by a police officer under Ch. XIV Crl. P. C., would be the question whether the officer is entitled to submit a report to a magistrate under Section 190, Crl. P. C. with a view that cognizance of the offence be taken by the Magistrate. But Section 187-A of the Sea Customs Act specifically provides that cognizance of the offence under the Sea Customs Act can be taken only upon a complaint in writing made by the Customs officer.

(27) In a recent decision of the Supreme Court in Badaku Joti Savant v. State of Mysore, Crl. App.26 of 1964: , a Bench of

five Judges of the Supreme Court dealt with a case of a prosecution under S. 167(81) of the Sea Customs Act (Act 8 of 1878) read with S. 9 of the Land Customs Act (Act XIX of 1924). The Deputy Superintendent of Customs who made the investigation was also a Central Excise Officer as defined under the Central Excise and Sale Act (Act 1 of 1944). That Act contained a provision, Sec. 21, the material part of which reads thus:-

"When any person is forwarded under S. 19 to a Central Excise Officer, empowered to send persons so arrested to a magistrate, the Central Excise Officer shall proceed to enquire into the charge against him.

(2) For this purpose the Central Excise Officer 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 Criminal Procedure Code 1898 when investigating a cognisable case.

Provided that........"

(28) It was pressed on their Lordships that because of the powers thus conferred on the Central Excise Officer, the statement recorded by him would be hit under S. 25 of the Evidence Act, and the earlier decision of the Supreme Court in was relied in support.

Repletion this contention, their Lordships pointed out that it did not appear that a Central Excise Officer under the Sale Act, had the power to submit a charge sheet under S 173 Crl. P. C. but he would have to make a complaint under clause (a) of S. 190 if he wants a magistrate to take cognizance of an offence, and this circumstance would show that though under sub-sec. (2) of S. 31, the Central Excise Office has the powers of an officer in charge of a police station when investigating a cognizable case, that powers was conferred only for the purpose of the inquiry under S. 21(1) but, S. 21 was terms different from Sec. 78(3) of the Bihar and Orissa Excise Act 1915. They observed that the Bihar and Orissa Excise Act, 1915 contained a specific provision, that the area to which an excise officer empowered under Sec. 77(2) 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. They pointed out that there could be an enquiry or investigation into the question of the commission of a criminal offence which can be conducted by officers of other departments, but that would not make them police officers for the purpose of S. 25 of the Evidence Act, because "otherwise any person entrusted with investigation under S. 202 Crl. P. C. would become a police officer".

(29) Their Lordships also pointed out that there had been in India two views, on a narrow view taken by the Patna High Court in Radhakrishun v. Emperor, AIR 1932 Pat 293 (SB) and a wider view following that of the Bombay High Court in AIR 1927 Bom 4. They reached the conclusion mentioned above on the footing that the boarder view should be adopted, but they also added that a great deal had to be said prima fancies for the narrow view, and that if the narrow view were to be adopted in the case before them, the specific provision in S. 78(3) of the Bihar and Orissa Excise Act, 1915 would make all the difference.

(30) It is appropriate to point out in this connection that the Central Excises and Salt Act (Act 1 of 1944) has a provision regarding bail, in proviso 3 to sub-sec (1) of S. 21, to the effect that if the Central Excise Officer was of the opinion that there was sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit his to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such magistrate. It is submitted by Sri. V. T. Rangaswami Aiyangar, learned counsel for the revision petitioner, that this provision did not deter the learned Judges in their latest decision from holding that S. 25 Indian Evidence Act was not attracted in the case of an officer empowered to investigate under the Central Excises and Sale Act of 1944, and that therefore, the observation regarding the powers to grant bail contained in the earlier decision of the Supreme Court, in Raja Ram Jaiswal case may not be a conclusive test. We are inclined to agree with this submission.

(31) The position that emerges in the light of the above clarification made in the latest decision of the Supreme Court in C. A. 26 of 1964: is that for the purpose of Section 25 of the Evidence Act, it is important to find out whether the powers of investigation conferred on an officer other than a police officer, in a particular enactment, have been defined by that Act itself, as the powers of investigation conferred on the police officer in charge of a police station, under Ch. XIV Crl. P. C. with the consequence that the report which he submits at the end of the investigation, the Magistrate, will be a charge-sheet for the purpose of taking cognizance under Section 190-B (1)(b) Cri. P. C. by the Magistrate. Equally it will not be proper to pick out one or more of the powers conferred on the officer, and refer to them alone for the purpose of determining whether Section 25 of the Indian Evidence Act is attracted or not, divorced from the broad question whether the power of investigation of a police officer, as such, is conferred by the enactment. Thus, the reference to the power to grant bail, and the power to make an arrest or the power to size articles on search, which are found in must be considered only against the background of the power of investigation properly conferred by the enactment under consideration. It is only when such power of investigation has been rendered by the enactment, in fact, as well as in law, the same as the powers of investigation of a police officer under Ch. XIV Crl. P. C. that S. 25 of the Evidence Act will be attracted.

(32) The splitting up of the provision for investigation into two sections, Section 107 and 108 in the new Customs Act of 1962, in our opinion, will not make any difference to the application of the principles above cited. Section 107 refers to an enquiry by a customs officer. As mentioned already, such enquiry does not have the attributes of a judicial proceeding unlike the enquiry under Section

108. It also does not enable the enquiring officer to compel the attendance or production of documents or things, and the witnesses also cannot be compelled to speak the truth under penalty. What Section 107 contemplates, is, therefore, a less formal and rigorous type of enquiry, by customs officers; whereas Section 108 contemplates an enquiry which is almost parallel to the enquiry under Section 171 of the old Sea Customs Act and is considered to be a legal proceedings. But neither the enquiry under Section 107 nor the enquiry under Section 108 can in any way, in substance or in law be considered to be the same as an investigation into a criminal offence, by an officer in charge of a police station under Ch. XIV Crl. P. C. which is the primary test of the application of Section 25 Indian Evidence Act as laid down by the Supreme Court in the latest decision.

(33) In view of the foregoing, we are of opinion that the statements in the present case do not become inadmissible by reason of Section 25 of the Evidence Act. It consequently follows that they are not hit by Section 162 Crl. P. C.

(34) The question of the guarantee under Art. 20(3) of the Constitution being available to the statements in the presents case, has arisen for consideration by this Full Bench decision of that fact that in an earlier Bench decision of this court , the

learned Chief Justice Ramachandra Iyer and Anantanarayanan J. (as he then was) expressed certain opinion, which have been pressed into service in this case by the learned counsel for the

respondents-accused. The facts in that case can be briefly set out. The appellant, a merchant of Madras, had imported certain goods by a ship which arrived in Madras Harbour. There was a doubt entertained by the Customs officers, as to whether the goods which he imported tallied with their description, in the import licence. Therefore, the Customs officers called upon the appellant, to show cause why action, should not be taken against him and the goods confiscated under S. 167(8) of the Sea Customs Act. Thereafter, the Assistant Collector of Customs issued summons to the appellant under Section 171-A of the Sea Customs Act, asking him to give evidence and produce the relevant documents. The appellant refused to appear and evidence, and relied upon Art. 20(3) of the Constitution for his defence. That Article of the Constitution states "no person accused of any offence shall be compelled to be a witness against himself". The appellant filed a writ in this court under Art, 226 of the Constitution, for the issue of a writ of prohibition against the Assistant Collector of Customs to prevent him from enforcing his attendance. There was in the earlier notice issued to the appellant in that case, a direction that he should explain why the department should not move for a prosecution against him. During the pendency of the writ petition, this portion in the notice was withdrawn. The learned Judge, Balakrishna Aiyar J who heard the writ petition, observed that at the stage in which the proceeding was, no one was an accused person in any sense of the term, "that the circle of enquiry would in time become smaller, and the stage would be reached when there was a certain amount of suspicion against various person, then the final stage is reached when the investigating authority considers that a particular person has committed an offence and decided to proceed against him in Criminal Courts; it is at this stage that a person really becomes accused of an offence." In view of the above considerations, the learned Judge held that the evidence which the appellant was asked to give, clearly referred to a stage anterior to the stage where he should be considered to be a person accused of an offence, and therefore, the guarantee under Art. 20(3) of the Constitution would not apply to him, and the writ petition was dismissed.

(35) This view of Balakrishna Aiyar J. was confirmed by the Bench of this court in appeal. That view is also supported by several decisions under analogous provisions of other enactment's. Thus in Bhagwandas Goenka v. Union of India, C. A. Nos. 131 and 132 of 1961 (SC) a case which arose under the Foreign Exchange Regulations, their Lordships of the Supreme Court after referring to the earlier decisions including their decision in held that "for invoking the

constitutional right against testimonial compulsion guaranteed under Art. 20(3) there must be at the relevant stage a formal accusation against the party pleading the guarantee relating to the commission of an offence which may result in a prosecution. Their Lordships also observed that in the case before them, which arose under the Foreign Exchange Regulations, the stage would be reached when a show cause notice was issued (as against a prosecution). But in that particular case that stage had not been reached, and therefore it was held that Art. 20(3) would not apply.

(36) In the present case, the lower court had not been required to consider whether the statements now under consideration were hit by Art. 20(3) of the Constitution. This question was raised only in the course of the hearing before us. It appears that these statements were recorded following upon certain recoveries of consignments of gold, from certain persons, or from certain localities, in the course of an investigation under Section 107 of Section 108 of the Customs Act, 1962. But it is conceded before is that at the time when the statements were recorded, the investigation had not reached the stage when particular persons had been accused of an offence, within the meaning of Art. 20(3) of the Constitution. Therefore we hold that the constitutionals protection thereunder cannot be availed of in respect of such statements.

(37) However, in the Rainbow Trading Company case

cited above, after expressing the view which we referred to earlier upholding the decision of Balakrishna Aiyar J., Ramachardra Aiyar C. J. at page 441 of the report observed:

"It 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 Art. 20(3) itself, would become illusory as the confession can be obtained first under S. 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 any criminal prosecution, as Art, 20(3) will prevent it from being so used. So much can be taken as settled by . Therefore, any incriminating answers

which a person examined under S. 171-A may give, can only be used for the purpose of the departmental punishment and not for a prosecution in a criminal court. In that case as

well as in the more recent case in it has been

expressly laid down that the protection guaranteed under Art, 20(3) would comprehend both oral and written statements. A record of evidence of person obtained under Section 171-A of the Sea Customs Act cannot be used against him at trial if he were to be charged in the Criminal court".

Anantanarayanan J.

(as he then was), at page 449 of the report, observed:

"Of course, it is a heavy and true objection that the testimony thus compelled, in the guise of proceeding under Section 171-A of the Sea Customs Act, might be later utilised to prosecute the appellant, and thus effectively divest him of the protection of Art, 20(3) by taking two steps, instead of one. The answer to this objection has been clearly demonstrated, if I may say so with respect, by my Lord, the Chief Justice, such compelled testimony cannot be later relied on our used in a criminal prosecution, as, at that stage, the protection of Art, 20(3) will be available to the appellant. This fully disposes of the argument or objection upon this ground".

Learned counsel Sri Govind Swaminathan for same of the respondents and also the other counsel who appeared along with him for the other respondents relied upon these observations, and contended that even if the statements of the respondents recorded during the enquiry under Section 107 or 108 are not hit by Art, 20(3) of the Constitution, because at that time the persons did not stand as accused persons, at the present trial where they are standing as accused persons, they could rely upon the guarantee under Art, 20(3) of the Constitution and insist upon the exclusion of such evidence. It is submitted by Sri V. T. Rangaswami Aiyangar, learned counsel for the petitioner herein, that the above observations of the learned judges in the Rainbow Trading Co., case require reconsideration for the reasons:

one is that the decision of the Supreme Court in Sharma's case does not give any authority for such a view; secondly a later decision of eleven judges of the Supreme Court has set down

certain principles, and if they are taken into account the statement of the law extracted above, by the two learned judges in the Rainbow Trading Co., case. AIR 1963 SC 434 will require reconsideration.

(38) In the first place, it appears to us that where evidence is given at a trial regarding prior statements of confessional nature given by the accused, it is not a case of the accused person being compelled to be a witness against himself. In such circumstances the accused is not giving evidence; it is another person who appearing as a witness gives evidence regarding what the accused told him at an anterior occasion, when the accused did not stand in the position of an accused facing a trial for a criminal offence. What is involved in such a situation is the application of the principle enunciated in Section 21 of the Indian Evidence Act, which lays down that admissions are relevant and may be proved as against the person who makes them or his representative in interest.

In their Lordship of the Supreme Court observed that the guarantee under Art. 20(3) of the Constitution would be available to any compulsory process or production of evidentiary documents, which are reasonably likely to support the prosecution against the accused. But they held that they search or seizure of a thing or documents cannot be treated as completed production of the same. From the last mentioned reasoning, they concluded that searches during the course of the investigation even of the premises of the accused will not be violative of Art. 20(3). Then they made certain observations to the following effect at pp. 1087 and 1088 (of SCR): (at p. 304 of AIR).

"A person can 'be a witness' not merely by gibing oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness is the like. "To be a witness' is nothing more than 'to furnish evidence', and such evidence can be furnished through the lips or by production of a thing or of document or in other modes...... The phrase used in Art. 20(3) is "to be a witness" and not to "appear as a witness". It follows that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him."

Had the above observations concluded with the last cited remarks it might perhaps be claimed that the Supreme Court was contemplating also the exclusion of a confessional statement previously obtained from the accused person, for being used in evidence against him at the subsequent trial; but the immediately following sentence: It is available therefore to a person against whom a forma accusation relating to the commission of an of course may result in prosecution "will show that their Lordships were having in mind only the exclusion of compelled testimony at a stage when the person giving such compelled testimony or whose compelled testimony in the shape of a document is being obtained, stands at that time in the position of an accused. There appears to be no basis in that decision for inferring that the Supreme Court contemplated that the guarantee under Article 20(3) will be available to the accused at a subsequent stage of a trial, or even if that guarantee was not available to him at the time, when the impugned "testimony" was given at an anterior stage. The Supreme Court, in a later decision in which 11 Judges took part, ,

differed from the observations in in so far as they gave a wider connotation to the meaning of "to be a witness" in Art. 20(3) of the Constitution. They held that the data gathered by obtaining the thumb impression or by the hand-writing of a person or by exhibiting parts of his body for the purpose of identification, cannot be included within the scope of the expression "to be a witness". This apart, if any doubt could be entertained in regard to the views of the Supreme Court in Sharma's case, on the specific question that has arisen for consideration now before us, the later decision clearly laid down at page 1817 of the report, as item 7 out of a set of 7 conclusions arrived by them in the following terms:

"To bring the statement in question within the prohibition of Art. 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".

(39) Therefore if at the trial evidence is afforded, for example, of the prior thumb impression taken by the accused during investigation or of a prior identification parade, it will become admissible in evidence because while giving the thumb impression or submitting himself to the identification, the accused cannot be considered to be acting as a witness against himself. Secondly, if a prior statements is given by a person at a time when he did not stand in the position of an accused, the guarantee under Art. 20(3) of the Constitution will not be available, if that statement is to be used as evidence against him when he is arraigned as accused at a subsequent trial. Further it appears to us, that if any other view of Art. 20(3) of the Constitution were to be adopted, evidence which under the Indian Evidence Act, is admissible under the heading of "Confessional statements" including both of "non-judicial" nature and also of a "judicial" nature recorded by a specifically empowered Magistrate under S. 164 Crl. P. C. will have to be excluded.

(40) We are, therefore, of the opinion that the bar under Art, 20(3) of the Constitution will not be available to the statements in this case, since it is not in dispute that they have been recorded only during an investigation undertaken by the Customs Officer under Section 107 and 108 of the Customs Act of 1962 and at a time when the deponents did not stand in the position of accused in the light of the principles stated in the decisions cited above.

(This case coming on for hearing on expression of the Opinion of the Full Bench, the Court (Ramakrishnana J.) made the following order: (9th September 1966).

(41) In accordance with the decision of the Full Bench, the order of the learned Sessions Judge pronounced on 30-10-1965 on the preliminary objection is set aside, and the learned Sessions Judge is directed to dispose of the case in accordance with law and in the light of the decision of the Full Bench.

(42) The stay of the trial of the sessions case will be vacated.

(43) Order accordingly.


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