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Basanta Kumar Sen and anr. Vs. Collector of Land Customs, Calcutta and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case Nos. 3414-3415 of 1958
Judge
Reported inAIR1961Cal86,1961CriLJ237
ActsSea Customs Act, 1878 - Sections 171A and 178A; ;Indian Penal Code (IPC) - Sections 193 and 228; ;Constitution of India - Article 20(3)
AppellantBasanta Kumar Sen and anr.
RespondentCollector of Land Customs, Calcutta and ors.
Appellant AdvocateP.B. Burman and ;D.N. Mukherjee, Advs.
Respondent AdvocateAmiya Kumar Mukherjee, Adv.
Cases ReferredShanker Lal v. Collector of Central Excise
Excerpt:
- orderp.b. mukharji, j.1. civil revision case no. 3414 of 1958: this is an application under article 226 of the constitution for a writ of mandamus upon the collector and superintendent of land customs and the union of india to withdraw the summons upon the petitioner under section 171-a of the sea customs act as applied to land customs.2. the determination of this application depends on the actual terms of the summons which therefore will have to be set out in extenso. the summons reads as follows :'whereas there are grounds for investigation being made in connection with an enquiry under section 171-a of the sea customs act 1878, and whereas i consider your attendance before me necessary for (i) giving evidence.(ii) producing documents of the following description duly explaining them.....
Judgment:
ORDER

P.B. Mukharji, J.

1. Civil Revision Case No. 3414 of 1958: This is an application under Article 226 of the Constitution for a writ of mandamus upon the Collector and Superintendent of Land Customs and the Union of India to withdraw the summons upon the petitioner under Section 171-A of the Sea Customs Act as applied to Land Customs.

2. The determination of this application depends on the actual terms of the summons which therefore will have to be set out in extenso. The summons reads as follows :

'Whereas there are grounds for investigation being made in connection with an enquiry under Section 171-A of the Sea Customs Act 1878, and Whereas I consider your attendance before me necessary for (i) giving evidence.

(ii) Producing documents of the following description duly explaining them with reference to the recorded transactions and etc. relating to your financial affairs as also of the firm M/S. Prasanna Poddar and Co. of 1/11, Garanhatta Street, of which you are a partner;

(a) the document relating to the possession of the two gold bars seized from your custody on 25-8-58;

(b) the documents relating to the transfer of assets and properties from East Pakistan;

(c) the documents and accounts covering fully the purchase of different assets in India and of acquiring other financial interests in different companies, firms and etc..

(d) the records showing your income in India since the time of partition including share of the profit accruing from the different financial interest owned jointly with your brothers, sons or other relatives;

(e) the documents and records showing the particulars of the employees, associate firms and persons connected with your financial affairs including their association with the firm M/S Prasanna Foddar and Co. of 1/11, Garanhatta Street of which you are the partner;

(f) any other documents which are in your possession to show the business affairs of M/S Prasanna Poddar and Co. at 1/11, Garanhatta Street, vis-a-vis the interests of your other two brothers viz., Sharvashri Subodh Kumar Sen and Sunil Kumar Sen in the said firm, and also those relating to you and your brothers' share in the business done through Gold Jewellery firm in Dacca. Documents already seized after a search of your premises on 23-8-59 will be made available at the time of tendering evidence. Now, therefore, in exercise of the powers vested in me by Section 171-A of the Sea Customs Act, 1878, 1 do hereby summon you to appear before me in Customs House at 15/1, Strand Road, Calcutta on the fifth day of September, 1958 at 11 Hrs. for the purpose hereinabove mentioned.

You are warned that giving false evidence in the proceedings is an offence punishable under Section 193 of the Indian Penal Code.'

3. This summons is challenged on the following grounds:

(1) that Section 171-A of the Sea Customs Act is ultra vires Article 20(3) of the Constitution of India.

(2) that the summons requires evidence of documents not covered by Section 171-A of the Sea Customs Act;

(3) that Section 171-A violates Section 178-A of the Sea Customs Act;

(4) that details of the inquiry in which the evidence on documents is required to be produced have not been stated in the summons.

4. The most important question raised in this application is whether Section 171-A of the Sea Customs Act violates Article 20(3) of the Constitution of India. Before taking up that point, I shall briefly dispose of the other grounds set out above.

5. There is no substance in the point that section 171-A of the Sea Customs Act violates Section 178-A of the same Act. Section 171-A gives power to the Officer of Customs to summon persons to give evidence or produce documents. Section 178-A relates to the burden of proof, the essence of whose provisions is that where any goods are seized under the Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. I cannot see how a person summoned to give evidence and produce documents can complain or refuse to do so on the ground of Section 178-A. Section 178-A imposes the burden upon the alleged smuggler but that does not prevent the Customs Officer from summoning a person to give evidence and produce documents. If the alleged smuggler complains that because he has produced documents before officers of the Customs he is not in a position to discharge that burden, then there might have been some force in the argument. But that is not what the summons under Section 171-A does. In fact, the notice expressly states that documents already seized after search of the premises, would be made available to the petitioner at the time of tendering evidence. He is therefore not prevented by this summons from discharging the onus under Section 178-A. Therefore, there is no conflict between Section 171-A and Section 178-A of the Sea Customs Act. Section 171-A does not say that when the document is produced thereunder, it will not be available any longer to him when he will be required to give evidence, and in fact Section 171-A and the summons thereunder ask him to give evidence. These two sections can be read together and one does not impinge on the field of the other. I therefore hold Section 171-A does not violate Section 178-A of the Sea Customs Act.

6. The next point, that the summons in this case requires evidence on documents to be produced which, are not contemplated under Section 17l-A, must he judged with reference to the terms of the section itself and with reference to the documents and evidence required there under the summons. The summons begins by saying that there are grounds for investigation in connection with an enquiry under Section 171-A of the Sea Customs Act. Now what is that enquiry under this section? Section 171-A (1) of the Act expressly says 'in any inquiry which such officer is making in connection with the smuggling of any goods.' It is, therefore quite clear that so long as a Customs Officer is making an inquiry in connection with the smuggling of any goods, he has the power to summon persons to give evidence and produce documents. That enquiry gives him jurisdiction to issue summons, and the summons presumably must be in aid of the enquiry which the officer is making. The section however does not say that the summons itself must state what enquiry it is and what are the details of such smuggling. To, do so, may perhaps defeat the very purpose and object of the section at the stage when the enquiry is made. The summons itself however in this case says and indicates the enquiry. The enquiry is expressly said in the summons to be an respect of smuggled gold bars which were seized from the custody of the petitioner on the 25th August, 1958. This is item (ii) (a) of the summons. It calls for the production of document relating to the possession of the gold bars. The petitioner's Jewellery Firm, M/S. Prosanna Poddar and Co. of 1/11, Garanhatta Street, of which he is a partner is the subject of this enquiry. So, the summons requires him to produce in item (ii) documents described from (a) to (f), with reference to the recorded transactions therein relating to the petitioner's financial affairs and also of the Firm of M/S. Prosanna Poddar and Co. of which the petitioner is a partner. Item (f), particularly requires documents to show the business affairs of M/S. Prasanna Poddar and Co. in relation to the interest of his other two brothers who are involved in this enquiry into the business done through the Gold Jewellery Firm in Dacca in East Pakistan. It is then contended on behalf of the petitioner that the demands for other documents such as (b), (c), (d) and (e) of the summons are excessive. It is difficult to see how this Court can determine the excessive character of these documents so far as the enquiry for smuggling is concerned. Section 171-A(1) does not expressly make any limitations. It provides:

'Any officer of Customs duly employed in the prevention of smuggling shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document Or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods.'

He, therefore, can summon any person whose attendance he considers necessary. So long as there may be any reasonable or possible chance of such documents at the enquiry that he is making being in connection with the smuggling of any goods, it is not for this Court to draw any limits except as I have said the documents demanded must be in aid of the enquiry. It is not the case of the petitioner in this case that the documents sought have nothing to do with the enquiry in question and, if so, what those documents are. It is, therefore, all the more impossible for this Court under Article 226 of the Constitution to hold that the present summons as at is, asks for evidence of documents which are not in the contemplation of Section 171-A of the Sea Customs Act. I therefore, hold that the summons is not bad on this ground.

7. This incidentally disposes of the other point of the petitioner that particulars of the enquiry for which the summons was issued have not been furnished in the summons itself. It is necessary to emphasise that what is called a 'summons' is not really a summons under the Civil or Criminal Procedure Code by any Court. Section 171-A gives the Customs officer a power to summon a person either to give evidence or to produce a document or any other thing. It expressly provides by Clause (2) that such a summons may be for the production of 'certain specified documents or things' or 'for the production of all documents or things of a certain description in the possession or under the control of the person summoned.' Although the word 'summons' is used in this section and although by Sub-section (4) of the Section 171-A, the enquiry is deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code, the whole idea of a summons is really a misnomer in that context. The officer who has the power to summon has no authority to administer oath to the witness summoned. Sub-clause (3) of Section 171-A of the Sea Customs Act then proceeds to provide that the summoned person

'shall be bound to attend either in person or by an authorised agent, as such officer may direct; and alt persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required''.

Were it a regular summons as understood in the Civil and Criminal Procedure Codes, and the Evidence Act, a provision that the summoned person shall state the truth would not have been necessary nor would it be necessary for the Statute to say that the summoned person was bound to attend. I am, therefore, satisfied in this context that the challenged summons, in not stating anything more than 'an enquiry under Section 171-A of the Sea Customs Act, 'cannot be held to be bad and invalid on the ground of lack of details of that enquiry. It will be unwise in my opinion to introduce the details and concept of a lis and the particulars of a 'lis' or regular criminal case in this context of the enquiry by a Customs officer under Section 171-A of the Sea Customs Act.

8. I come now to the last point of the petitioner that Section 171-A of the Sea Customs Act is constitutionally invalid under Article 20(3) of the Constitution. The legal position is in a veritable confusion. Before any attempt is made to unravel the legal cobwebs on this point, I want to emphasise a practical aspect of this problem, too often missed in discussion of legal theories on this subject. The petitioner says that this summons violates Article 20(3) of the Constitution and says nothing more on the point. In order to claim the immunity under Article 20(3) of the Constitution which provides :

'No person accused of any offence shall be compelled to be a witness against himself,'

the petitioner has to state and assert that he is being compelled to be a witness against himself. No allegation of that nature was made in the petition. Without that assertion and statement of fact, I do not think that this claim for Constitutional immunity against testimonial compulsion in favour of an accused from being a witness against himself can be entertained in the air. The summons asked the petitioner to give evidence and produce certain documents. Surely, the petitioner cannot say that . any evidence that he gives or which he may be asked to give when he does not yet know the questions he will be asked, and all the documents whatever they may be which he has been asked to produce will make him a witness against himself. Even if fill the documents or any of them does, then he is to claim with respect to all or such documents that he refuses to produce them on the ground that they will incriminate him. The immunity of Article 20(3) of the Constitution depends on a fact. That fact is that no person accused of an offence shall be compelled to be a witness against himself. He has therefore to say that he is being compelled to be a witness against himself by doing certain things and what these things are which will make him a witness against himself. The difficulty of deciding upon this Constitutional protection without making sure on what they are based is exemplified in the decisions on the subject.

9. In Maqbul Hussain v. State of Bombay, : 1983ECR1598D(SC) , it is definitely laid down that in order that the protection of Article 20(2) of the Constitution may be invoked by a citizen, there must have been not only a prosecution but also punishment in respect of the same offence before a Court of law or a tribunal required by law to decide matters in controversy judicially on evidence on oath which it must be authorised by law to administer. None of these tests can be applied to the notice given by the Customs Officer under Section 171-A of the Sea Customs Act summoning a person to give evidence or produce documents. Bhagwati J., who delivered the judgment of the Supreme Court, makes it further clear in this decision that the proceedings contemplated under Article 20(2) are of the nature of criminal proceedings before a Court of law or a judicial tribunal and prosecution in this context would mean an initiation or starting of proceedings before a Court of law or judicial tribunal in accordance with the procedure prescribed in the Statute which creates the offence and regulates the procedure, Bhagwati J., did not apply and extend this doctrine to the proceedings under the Sea Customs Act read with the Foreign Exchange Regulation Act. This decision was concerned only with Article 20(2) and not Article 20(3) of the Constitution, although it will be apparent from Bhagwati J.'s observations at pages 738-39 (of SCR): (at pp, 328-29 of AIR) of that Report and. quoted later in this judgment that the Supreme Court was laying down the law on Article 20 of the Constitution without particularly limiting its observation to any individual sub-clause thereof.

10. Then comes the decision in M. P. Sharma v. Satish Chandra, : 1978(2)ELT287(SC) . Jagannadhadas J. delivering judgment of the Supreme Court in that case laid down very clearly at p. 1088 (of SCR): (at p. 304 of AIR):

'It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the formal course may result in prosecution.'

This portion of the judgment has been understood in a very extensive sense and has been subsequently applied in that extended sense by the Court of Appeal here in Collector of Customs v. Calcutta Motor and Cycle Co., : AIR1958Cal682 . Before coming to the decision of the. Court of Appeal, I would like only to say this that the Supreme Court in : 1978(2)ELT287(SC) decides that Article 20(3) is not confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand and that the words 'to be a witness' mean not merely giving oral evidence but also producing documents. It also says that there is no reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the Court room. It is necessary however to state that what the Supreme Court was considering in M. P. Sharma's case was a First Information Report with named and enumerated accused.

11. Then comes the decision of the court of appeal of this High Court in : AIR1958Cal682 . The actual decision of that case does not help the petitioner at all and, in fact, goes against him. Sinha J. as the Court of first instance in that case reported in : AIR1956Cal253 , Calcutta Motor and Cycle Co. v. Collector of Customs issued a writ of mandamus quashing notices issued by the Customs Officer under Section 171-A (1) of the Sea Customs Act 'on the ground that they violated Article 20(3) of the Constitution. The Court of Appeal allowed the appeal and set aside the order of Sinha J. issuing the writ of mandamus. To follow that decision would be to dismiss this application straightway but it is contended on the strength of this decision that it lays down the proposition that the Supreme Court in M. P. Sharma's case : 1978(2)ELT287(SC) decided that the accusation need not be accusation in a Court of law but may be accusation at a stage before the matter had reached the Court. There are observations of Chakravartti C. J. at p. 687 to the effect that Section 171-A of the Sea Customs Act may be violative of section 20(3) of the Constitution. Chakravartti C. J. at p. 687 of the report : AIR1958Cal682 says :

'It follows that if by being compelled to tell the truth the person summoned under the section is compelled to make a statement which incriminates him, or if by being compelled to produce 'all documents' as the Respondents in the present case were, he is compelled to produce a document which shows him as having committed an offence, he is clearly compelled to be a witness against himself. But this, it will be noticed, involves an assumption that the person summoned will be asked questions which he can not answer truthfully without incriminating himself and that he possesses some documents which will incriminate him, if produced.'

Chakravartti C. J. appears to hold in that case that there the respondents were accused of an offence within the meaning of Article 20(3) of the Constitution. He also seemed to distinguish Maqbool Hussain's case : 1983ECR1598D(SC) on the ground that ife related to Article 20(2) of the Constitution although it does not appear clear how the word 'offence' should have different meanings, one in Sub-clause (2) and another in Sub-clause (3) of the same Article 20 of the Constitution. Besides the ratio of the Supreme Court's decision even in Maqbool Hussain's case : 1983ECR1598D(SC) is that, it is not legitimate to assume that the Constitutional protection under Article 20(3) would be defeated by statutory provisions for searches for Jagannadhadas J. observed in that Report ot the case in : 1978(2)ELT287(SC) as follows :

'A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of Social Security and the power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right by some process of strained construction. Nor is it legitimate to assume that the Constitutional protection under Article 20(3) would be defeated by statutory provisions for searches. It is to be remembered that searches of the kind we are concerned with are under the authority of a Magistrate (except in the limited class of cases falling under Section 165 Cr. P. C.). Therefore the issue of a search warrant is normally the judicial function of the Magistrate. When such judicial function is interposed between the individual and the officer's authority for search, no circumvention thereby of the fundamental right is to be assumed. We are not unaware that in the present set up of the Magistracy in this Country, it is not infrequently that the exercise of this judicial function is liable to serious error, as is alleged in the present case. But the existence of scope for such occasional error is no ground to assume circumvention of the constitutional guarantee.

We are, therefore, clearly of the opinion that the searches with which we are concerned in the present cases cannot be challenged as illegal on the ground of violation of any fundamental rights and that these applications are liable to be dismissed.'

12. The learned Advocate for the State has relied on a recent decision of the Bombay High Court in State v. Devsi Dosa, reported in 62 Bom. LR 316: (AIR 1960 Bom 443). That decision was concerned with the case of the Bombay Moneylenders Act and decided that Section 13A of that Act did not offend against the provisions of Article 20(3) of the Constitution. It is the judgment of a Division Bench where Patel J. very clearly expressed the following view:

'In order that the protection of Article 20(3) of the Constitution of India should be available to a person, he must be accused of an offence, which would mean that an information is laid against him before an officer or a Court entitled to take cognizance of the offence and proceed upon the information to investigate into it. Merely because the evidence might disclose some crime and it might form the subject matter of future prosecution, would not enable the person, who is asked to furnish evidence, to claim protection of Article 20(3) of the Constitution, in any proceedings other than where he is accused of any offence.

The Division Bench of the Bombay High Court took the view that the scope of the Article cannot be enlarged so as to make it applicable to proceedings whether civil or administrative. I am inclined to agree with this view as being consistent with the real tenor, language and the history of the origin of this whole Article 20 of the Constitution. This decision of the Bombay High Court particularly relies on and quotes the following observation of Bhagwati J. in Maqbool Hussain v. State of Bombay, : 1983ECR1598D(SC) . 'The very wording of Article 20 and the words used therein:-- 'convicted,' 'commission of the act charged as an offence', 'be subjected to a penalty', 'commission of the offence', 'prosecuted and punished', 'accused of any offence', would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a Court of law or a judicial tribunal, and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the Statute which creates the offence and regulate the procedure.'

13. The Bombay decision also quotes the observation of the Supreme Court in : 1978(2)ELT287(SC) . It expressly disagrees with the view expressed by Sinha J. in the Calcutta Motor and Cycle Co. v. Collector of Customs as a Court of first instance reported in : AIR1956Cal253 . The Division Bench of the Bombay High Court at page 320 of 62 Bom LR 316: (at p. 446 of AIR 1960 Bom 443) dealing with Sinha J.'s decision of this Court observed as follows:

'The learned Judge, who heard the case, held that the provisions of Section 171-A, in so far as it enables the authorities to compel a person accused of an offence to give evidence against himself and/or to produce documents for that purpose, offend against Article 20, Sub-clause (3), of the Constitution and is bad. It is difficult to agree with the reasoning of the learned Judge in that case. That reasoning, with respect, is inconsistent with the intendment of the Article and carries it much beyond its legitimate scope. It would further render large number of laws invalid. Having given our earnest consideration to the reasoning of the learned Judge we are constrained to say that there is no warrant for extending the scope of Article 20, Sub-clause (3)'. The difficulty however is no longer caused by D. N. Sinha J's judgment because that had already been set aside by the Court of Appeal here and the present problem is to find the real ratio of the Calcutta Appeal Court decision. The decision of the Calcutta Court of Appeal in : AIR1958Cal682 , can be clearly distinguished on the facts because fin that case there was a notice to show cause charging the petitioner with certain offences and having made that charge the question of violating Article 20(3) of the Constitution was said to arise, for the test of 'formal accusation' of the Supreme Court in M P. Sharma's case, : 1978(2)ELT287(SC) might then be argued to have been satisfied. But here there is no question of any formal accusation. In the facts of this petition, there is no notice to show cause. The petitioner has not yet been accused of any offence within the meaning of Article 20(3) of the Constitution. No doubt, there was a search warrant and certain gold bars were seized but then that search warrant did not even accuse the petitioner as such, and did not name the accused. Nor can such search warrant through a Magistrate be challenged for reason clearly explained by Jagannadhadas J. of the Supreme Court in M. P. Sharma's case in : 1978(2)ELT287(SC) quoted above. Chakravartti C. J. in the Calcutta Court of Appeal observed at page 687 of the report already cited:'I can see no reason for holding that the protection of the Article will be available only to a person who has been formally accused or charged. It appears to me that if a man has been named as a person who has committed an offence, particularly by officials who are competent to launch a prosecution against him, he has been accused of an offence within the meaning of Article 20(3) and a situation has arisen in which he can claim protection against being compelled by a coercive process to furnish evidence against himself.'

14. No such naming of the accused has happened in this case. The application for search warrant only asserted that information had been received that certain contraband goods of foreign origin have been illicitly imported in contravention of Land Customs Act 1924 and Sea Customs Act 1878 from foreign territory and had been stored secretly in the premises of M/s. Prasanna Poddar and Co. of 1/11, Caranhatta Street, Calcutta. I do not think that on those facts the test of 'formal accusation' even as laid down in M. P. Sharma's case, : 1978(2)ELT287(SC) is satisfied in this case. On that ground also and in these facts this instant case is therefore clearly distinguishable from the facts which the Court of Appeal was considering in : AIR1956Cal253 .

15. To complete the catena of cases, I would only refer to the decision of Balakrishna Aiyar J. in Shanker Lal v. Collector of Central Excise, : AIR1960Mad225 . There the learned Judge appears to hold that:

'Where notices under Section 171-A of the Sea Customs Act, 1878, are issued to the petitioners alleging that there is reason to believe that the goods mentioned in the schedule attached to the notices have been imported without payment of Customs duty, thus making the petitioners liable to the imposition of penalties under Section 167(8) of the Act, the petitioners are not persons accused of any offence and they are bound to appear in obedience to the summons issued to them and answer questions that may be put to them. If they are asked questions the answers to which are likely to incriminate them, it is open to them to claim the protection provided by Article 20(3) of the Constitution. If that claim is overruled and they are compelled to answer those questions, then such answers will not be admissible in evidence against them should they be at a later stage prosecuted in a criminal Court.'

16. It is not necessary to say anything more on that decision, except to emphasise that it clearly holds that Section 171-A of the Sea Customs Act does not violate Article 20(3) of the Constitution and with that view I associate myself.

17. On my understanding of the ratio decidendi of the two Supreme Court decisions in : 1983ECR1598D(SC) and : 1978(2)ELT287(SC) , and on my interpretation of the language of Section 171-A of the Sea Customs Act empowering Customs Officer to summon persons to give evidence and produce documents I have come to this conclusion that Section 171-A of the Sea Customs Act as such and on its terms and language does not violate Article 20(3) of the Constitution of India. Whether in a particular case on its own facts any particular summons under Section 171-A of the Sea Customs Act violates Article 20(3) of the Constitution will in my opinion depend on the alleged and established facts of that case showing what evidence and what document compel a person accused of what offence to be a witness against himself within the meaning of that constitutional immunity. The possibility of such an unconstitutional summons does not make the section itself i.e. Section 171-A of the Sea Customs Act unconstitutional under Article 20(3) of the Constitution. In any view of the matter whether the Bombay view is taken or the Calcutta view is taken or the Madras view is taken, the petitioner's application cannot succeed and this Rule must be discharged. The petition is dismissed. There will be no order as to costs.

18. Civil Revision Case No. 3415 of 1958:For the reasons stated in Civil Revision Case No.3414 of 1958 this Rule also is discharged withoutany order as to costs.


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