# ': HIRA H. ADVANI ETC v. STATE OF MAHARASHTRA

- **Citation:** [1970] 1 S.C.R. 821
- **Court:** Supreme Court of India
- **Decided:** 1969-08-13
- **Case number:** Criminal Appeals Nos. 86 to 90 of 1968
- **Bench:** S. M. S!Kri, G. K. Mitter, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hira-h-advani-etc-v-state-of-maharashtra-4705
- **Pages:** 18

## Headnote

821
Sea Customs Act1 s. 111-A-Statements under-Whether subject to
s. 132 Evidence· Act (1 of 1872) and Art. 20(2) of Constitution of India,
195~ustoms Officer whether a court.-lncrimina.ting questions whether
permissible in enquiry s. 171-A-Effect of ss. 4, 5 and 7 of Indian Oaths
Act (10 of 1813)~ommon law principles whether applicable to matters
covered by Evirlenct~· Act-Copy of premium
debit note of insurance
policy-Admissibilit)l under s. 114 (Ill. /)-Appraiser of customs--Giving evidence as to v,alue of goods after making enquiries in marketEvidence u•hether inadmissible as hearsay.
The appellants and two others were prosecuted on a complaint by the
Assistant Collector of Customs, Bombay for the offence of conspiracy and
substantive offences punishable under s. 167(81) of the sea Customs Act
and s. 5 of the lmports and Exports (Control)
Act, 1947.
The complaint was that all the accused knowingly and with intent to defrand the
Government of India o'f duty payable on the import of goods and/or to
evade the prohibitions and restrictions for the time being in force under
or by virtue of the $ea Customs Act and of the Imports & Exports (Control) Act, 194 7 relating to the said import entered into a conspiracy in
Bombay and other places during the period
commencing from August
1958 and August 1959 to acquire possession of and to be concerned in
carrying, removing and concealing and otherwise dealing with prohibited
and restricted goods .in very large quantities of high C.I.F. value. The
Presidency Magistrate held in regard to the appellants that they were
parties to a conspiracy as alleged by the prosecution and convicted them
under s. 120.B Indian Penal Code read with s. 167(81) of the- Sea
Customs Act and s. S of the Imports and Exports (Control) Act, 1947.
The accused were also convicted o'f certain
other
charges individually
framed against them. The High Court dismissed the appeal against the
order of the Presidency Magistrate. The appellants were however, granted a certificate undOJ'. Art. 134( 1 )( ~) of the Constitution. The main legal
question that fell fot consideration by this Court was whether the statements made by ·the :accused-appellants before the Customs Officer were
- inadmissible in evideiice in view- of the provisions df s. 171-A of the Sea
Customs Act. s. 132 of the Evidence Act and Art. 20(3) of the Constitution. Questions raised on behalf of the appellants in their individual cases
regarding: the admi~bility of certain items of evidence and circumstances
against them also ar~se for consideration.
HELD : (1) A Customs Officer is not a court and therefore statements made before him do not attract the provisions of s. 132 of the
Evidence Act or Art. 20(3) elf the Constitution.
(a) If the Legislature intended that the inquiry under s. 171-A was to
be considered a judicial proceeding not within the narrow limits therein
specified but general)y. it could have used suitab!e words to express its
intention.
Although· thi~ Court gave a wider meaning to the expression
'judicial proceeding" in Lalji Haridas' case there is nothing in that judg ..
ment to warrant a still wider interpretation of that definition. [831 CJ
822
SUPREME COURT REPORTS
[1970) I s.c.R.
Maqbool Hussain v. State of Bombay,
[1953]
S.C.R. 730, 1'homas
A
Dana v. State of Punjab, (1959) Supp. 1 S.C.R.
274, 286 Jndt>China
Steam Navigation Co. Ltd. v. Additional Collector of Customs. [1964) 6
B.C.R. 594, referred to.
Lalji Huridas v. Srute of Maharashtra, (1964] 6 S.C.R. 700, considered.
(b) The Oat:Js Act had no application to the present case.
Tho preamble to the Act shov;s that it was an Act to consolidate the law relating
B
to judicial oaths, affirmations and declarations. The argument that
a
customs officer received evidence within the meaning of s. 4 of the Act
and therefore a person appearing before him
was a witness under s. 5
could not be accepted.
Section 7 of the Act shows that oaths under the
Act had to be administered according to such fo

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HIRA H. ADVANI ETC.
v.
STATE OF MAHARASHTRA
August 13, 1969
[S. M. S!KRI, G. K. MITTER AND K. S. HEGDE, JJ.]
821
Sea Customs Act1 s. 111-A-Statements under-Whether subject to
s. 132 Evidence· Act (1 of 1872) and Art. 20(2) of Constitution of India,
195~ustoms Officer whether a court.-lncrimina.ting questions whether
permissible in enquiry s. 171-A-Effect of ss. 4, 5 and 7 of Indian Oaths
Act (10 of 1813)~ommon law principles whether applicable to matters
covered by Evirlenct~· Act-Copy of premium
debit note of insurance
policy-Admissibilit)l under s. 114 (Ill. /)-Appraiser of customs--Giving evidence as to v,alue of goods after making enquiries in marketEvidence u•hether inadmissible as hearsay.
The appellants and two others were prosecuted on a complaint by the
Assistant Collector of Customs, Bombay for the offence of conspiracy and
substantive offences punishable under s. 167(81) of the sea Customs Act
and s. 5 of the lmports and Exports (Control)
Act, 1947.
The complaint was that all the accused knowingly and with intent to defrand the
Government of India o'f duty payable on the import of goods and/or to
evade the prohibitions and restrictions for the time being in force under
or by virtue of the $ea Customs Act and of the Imports & Exports (Control) Act, 194 7 relating to the said import entered into a conspiracy in
Bombay and other places during the period
commencing from August
1958 and August 1959 to acquire possession of and to be concerned in
carrying, removing and concealing and otherwise dealing with prohibited
and restricted goods .in very large quantities of high C.I.F. value. The
Presidency Magistrate held in regard to the appellants that they were
parties to a conspiracy as alleged by the prosecution and convicted them
under s. 120.B Indian Penal Code read with s. 167(81) of the- Sea
Customs Act and s. S of the Imports and Exports (Control) Act, 1947.
The accused were also convicted o'f certain
other
charges individually
framed against them. The High Court dismissed the appeal against the
order of the Presidency Magistrate. The appellants were however, granted a certificate undOJ'. Art. 134( 1 )( ~) of the Constitution. The main legal
question that fell fot consideration by this Court was whether the statements made by ·the :accused-appellants before the Customs Officer were
- inadmissible in evideiice in view- of the provisions df s. 171-A of the Sea
Customs Act. s. 132 of the Evidence Act and Art. 20(3) of the Constitution. Questions raised on behalf of the appellants in their individual cases
regarding: the admi~bility of certain items of evidence and circumstances
against them also ar~se for consideration.
HELD : (1) A Customs Officer is not a court and therefore statements made before him do not attract the provisions of s. 132 of the
Evidence Act or Art. 20(3) elf the Constitution.
(a) If the Legislature intended that the inquiry under s. 171-A was to
be considered a judicial proceeding not within the narrow limits therein
specified but general)y. it could have used suitab!e words to express its
intention.
Although· thi~ Court gave a wider meaning to the expression
'judicial proceeding" in Lalji Haridas' case there is nothing in that judg ..
ment to warrant a still wider interpretation of that definition. [831 CJ
822
SUPREME COURT REPORTS
[1970) I s.c.R.
Maqbool Hussain v. State of Bombay,
[1953]
S.C.R. 730, 1'homas
A
Dana v. State of Punjab, (1959) Supp. 1 S.C.R.
274, 286 Jndt>China
Steam Navigation Co. Ltd. v. Additional Collector of Customs. [1964) 6
B.C.R. 594, referred to.
Lalji Huridas v. Srute of Maharashtra, (1964] 6 S.C.R. 700, considered.
(b) The Oat:Js Act had no application to the present case.
Tho preamble to the Act shov;s that it was an Act to consolidate the law relating
B
to judicial oaths, affirmations and declarations. The argument that
a
customs officer received evidence within the meaning of s. 4 of the Act
and therefore a person appearing before him
was a witness under s. 5
could not be accepted.
Section 7 of the Act shows that oaths under the
Act had to be administered according to such forms as the High Court
might prescribe.
The Customs
Officer have
nothing to do \\'ith such
forms and thcre was nothing on record to show that in th~ present case
any oath was
administered
to the person making the statement.
In
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Maqbool Hu.rsain's case this Court stated expressly that the Customs Officen were not authorised to administer oath and the position was not altered by the insertion of s. 171-A in 1955. [832 D-E; 833 AC)
Observations in Queen Empress v. Tulja, 12 Bombay 36. 42 and Sz.
Aubvn v. Attorney.<Jeneral, (1951) 2 A.E.R. 478, 498, d~cussed.
(c) Our law of evidence which is a complete code does not permit
the importation of any principle of English common law
relating to
evidenee in criminal cases to the contrary.
There is no scope for introduction of a rule of evidence in criminal cases unless it is within the four
comers of s. 132 or some other provision of the Evidence Act. (834 H;
836 B-C]
Amba Lal v. Union of India & Ors. [1961] 1 S.C.R. 933 and Raglna
v. Benjamin Scott, 169 E.R. 909, referred to.
Sris Chandra Nandi v.
Rakhalananda
(decea.red), !.L.R. 1941
I
Calcutta 468, applied.
(d) The decision of the House
Of Lords in Harz's case docs not
support the proposition that under s. 171-A the right of interrogation was
limited to questions the answers where to may not incriminate the person
intertogated. The section expressly
authorLo;;es officers o'f customs to
secure the attendance of persons to give evidence or produce documents
or things relevant in any enquiry in connection with smuggling of goods.
A limit is set to the right to obtain produclion in sub-s. ~2) of the section
and sul>-ss. (3) and (4) lay down that if a person sununooed docs not
state the truth in such an cxam?nation he may be proceeded against under
a. 193 I.P.C. for giving false evidence. (837 D-E]
·Commissioners of C11stoms and Excise v. l/arz, (1867) 1 All.
E.R.
177, explained.
(e) In view of the decision of this Court in Nishi Kant v. State of
Bihar, [1969] 2 S.C.R. 1033, the argument that statements of the accused
under s. 171-A(4) should be considered only as a whole could not be
a.ccepted. The inculpatory position of a statement can be accepted if the
exculpatory portion i.• found to ho inherently improbable. In the pr""eot
case the explanations contained in the statement were rejected
by the
courts below for reasons given. There was no reason for this Court "' take
a different view. [838 A-BJ
(ii) The High Omn rightly held that an office copy of a premium
debit note maintained by an imuranee company in the usual course of its
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HIRA ADVANI v. MAHARASHTRA (Mitter, J.)
823
business and attached to the office copy of the insurance policy was ad·
missible in evidence under s. 114 (Illustration f) of the Evidence Act.
No objection could be allowed to be .raised on the ground that there was
no proof of the preparation elf the ong1nal premmm note. [825 HJ
(iii) The evidence of an appraiser of customs df long experience re·
garding the C.I.F. value of goods could not be reject<:d. m~ely on the
ground that his opinion was arrived at after making enqwnes in tJ;ie market
and was therefore only hearsay. His testii;riony as to the: valuation bas~d
on his knowledge of the market and .experience had ~ema1ned unshaken in
cross-examination and was rightly rebed on by the High Court. [827 D-FJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.
86 to 90 of 1968.
Appeals from the judgment and order dated January 13, 1968
of the Bombay High Court in Criminal Appeals Nos. 497 to 499,
516' and 500 of 1965 respectively.
R. Jethmalani, K. N. Mirchandani and U. P. Singh, for the
appellant (in Cr. A. No. 86 of 1968).
Nur-ud-din Ahmed, K. N. Mirchandani and U. P. Singh, for
ID
the appellant (in Cr. A. No. 87 of 1968).
A. S. R. Chari, J. M. Mirchandani and K. Hingorani, for the
appellant (in Cr. A No. 88 of 1968).
K. Hingorani, for"the appellant (in Cr. A. No. 89 of 1968).
N. H. Hingorani for K. Hingurani, for the appellant (in Cr.A.
E
90 of 1968).
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L. M. Singhvi, B. D. Sharma and S. P. Nayar, for the respondent (in all the appeals) .
The Judgment of the c6'urt was delivered by
Mitter, J. [After stating the facts His Lordship proceeded:]
The High Court dealt generally with the charge of conspiracy
against all the accused and individually with respect to the charges
raised against each accused and considered the explanations given
by them with regard to the circumstances tending to criminate
them.
Mr. J ethmalani who argued the case of the first appellant at some length raised various questions of law with regard
to the admissibility of the evidence afforded by statements before
the Customs Officers under s. 171-A, the conclusion of the High
Court that his client had custody or possession of all the exhibits
found as a result of the search of the premises of H. B. Advani
Brothers on 21st July, 1950, the correctness of the finding of
the High Court that Ex. F.-2 cQilltained a complete account with
regard to the consignment per s.s. Canton, the finding of the
High Court that the C.I.F. value of the goods exceeded the in·
voice value many times over by relying on the evidence of an
appraiser of the Customs department and the absence of any
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824
SUPREME COURT REPORTS
[1970] I S.C.R.
ever! act on the part of his client after the search on 21st July
I 959.
The argument with regard to the admissibility of evidence of the statements was adopted by couno;el for all the other
accused and need not be dealt with separately.
Mr. Jethmaiani
virtually conceded that if his contentions on the above heads were
not accepted by this Court, it would be futile for him to argue
that the High Court had gone wrong in coming to the conclusion
as to the guilt of his client on the strength of tile evidence before
it and the inference which could legitimately be drawn therefrom.
We propose to deal with the other points before examining
the contention with regard to the admissibility of the statements
made in pursuance of powers exercised by the customs officers
under s. 171-A.
With regard to the finding of the High Court
in agreement with that of the Magistrate that accused I had the
custody or possession of exhibits Exs. B to F-2, counsel argued
that except those seized from his wallet the others were found in
the drawer of the table oi the premises searched, there was no
evidence to show that the said table was the table of his client
and as there \\las no proof that his client had any financial or
proprietary interest in the firm of H. B. Advani Brothers, there
was nothing to warrant the conclusion that the exhibits other than
those in the wallet were in his custody.
The High Court dealt
elaborately with this point and we do not rh:nk it necessary to
re-examine the same except to note the comment made before
the High Court as well as before us that the evidence of Mr.
Dame, the panch witness who had said that at the time of the
search accused 1 was sitting at the table in a drawer of which
the incriminating exhibits were found was unbelievable.
It was
argued that inasmuch as the panchnama did not record this fact
Dame who gave evidence in 1962 should not have been believed
when he claimed to have remembered the fact of accused 1 sitting
at the table mentioned.
Both the courts accepted Darne's statement and we see no good reason to take a different view.
Afterall it would not be extraordinary for any person to recollect even
after a considerable lapse of time that when he entered the room
which was going to be searched, he found a particular person seated at a certain table inasmuch as this would be the very first thing
which would attract anybody's attention.
With regard to Ex. F.-2 w1'ich according to the prosecution
case-accepted by the courts below--contained an account with
regard to the consignment per s.s. Canton the prosecution case
was that the figures on the left-hand side indicated the rates and
the f:gures on the right-hand side indicated the total C.l.F. value
of the goods of each type in that consignment.
Before us exception was taken to the two figures 80.80 and 11.02 appearing
on the right hand side.
According to the prosecution the figure
11.02 was the amount of insurance premium in dollars paid in
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HlRA ADVANI v. MAHARASHTRA (Mitter, J.)
82S
respect of the consignment on s.s. Canton. As the original which
should have been wjth accused 2 was not produced, a copy of
the insurance policyJwas put in and marked as Ex. Z.-301. Ex.
Z-259-F-1 was a copy of the same produced by accused 2 before
the customs officers-On 24th July 1959 as was borne o~t by the'
statement of ai:cl)sed 2.
The contents of the two exhibits were
found to be the same by both the courts.
The Claim Superintendent of the insurance company in Bombay produced the copy
of the marine pretnitltn note in respect of the said policy showing
the amount of premill:rn _as $ 11.02 and said to have been received
by the Bombay offici· ·.of the insurance company. Objection was
raised to the adrtils bility of evidence of one Martin, Assistant
Manager of New l.e · and Insurance Company Hong Kqng Branch
who had joined tliat .branch in 1963 i.e. long after the issue of
the policy in 1959' a!fuough he had been an employee of the said
company since 1952 1tnd clainied to be familiar with the procedure of insurance ·Of export cargo followed by the company.
According to this "tvi~ss, the company used to prepare as many
copies of the policy a§ were required by the insurer.
A carbon
copy of the original was· always kept in the office record.
Martin
produced art office copy of the policy in respect of the consignment on s.s. Cant0i11 to which was attached a marine premium debit
note and it was his evidence that in the usual course of business
of the company such a· debit note was always prepared at the time
when the policy was !$sued and a copy thereof was attached to
the copy of the policy kept in the records.
Counsel objected
to· the reception of th~;.copy of the premium note on the ground
that there was no pr()l;lf of its making or its correctness.
The
High Court accepted t!j~ evidence of Martin that the copy of the
premium debit note had been attached to the policy kept in the
office record relyi.ig Of\ the presumption afforded by iJiustration
(f) to s. 114 of the Ev,i.dence Act that the practice of the insurance company of ~tayfling such a note to the j)olicy had been
followed in this particul~r case.
In our view the High Court was
entitled to do so and t\O objection can be allowed to be raised
on the ground that there was no proof of the preparation of the
original premium note. ·
With regard to the figure 80.80 counsel argued that there
was no proof that this was the amount of the freight in dollars
charged in respect of the consign..nent per s.s. Canton. Counsel
argued that the freight paid was not shown in the bill of lading
in this case Ex. Z-259-G and the production of the copies of the
bill of lading Ex. M-3 and Z-142W on which somebody had
written the figure $80.80'did not establish the prosecution case.'
Ex. M-2 was the Manifest of Cargo per s.s. Cainton and entty
No. 5 therein showe\f th~t in respect of the consignment 80.8(}
dollars had been paid as .freight.
The prosecution adduced evidence of P.W. 45 Yeshwant Shankar Keluskar of Mackinon
1126
SUPREME COURT REPORTS
(1970] I S.C.R.
Mackenzie & Co. who produced the Import
General Manifest
.dated 20th July 1959 as also the Freight Manifest.
According
to this witness on ·the consignment on s.s. Canton li0.80 Hong
Kong dollars had been paid as freight.
He had no
personal
knowledge but made his statement on the basis of the record produced from his office. The prosecution also relied on Ex. M-3
the shippcr·s copy of the bill of lading produced before the customs ufficers on 24th July 1959 by accused 2 containing the rate
at which th" freight was charged and also the ac1ual amount of
freight charged viz., 80.80 Hong Kong dollars.
Objection was
taken to this inasmuch as the amount of the freight did not
appear in the bill of lading Ex. Z-259-E. The prosecution case
was that freight was paid after the preparatio,1 o ·the Bill of lading "nd just before the goods were actually p'-'t on board and the
reasonable explanation was C1at the amount of freight had been
calculated subsequent to the preparation of the bill of lading and
endcrsed thereon as on Ex. M-3 subsequently.
According to the
High Court it could be said to be a subsequent original endorsement
on a copy and the High Court relied on Ex. Z-148-W a carbon
copy of 1he bill of lading bearing a similar em!orsement and also
on the fact that on both Ex. M-3 and Ex. Z-148-W the words
"freight paid"' appeared impressed by a rubber stamp in addition
to the calculation of freight and the actual amount of freight. In
our opiniou, the High Court rightly held tiiat all this established
the prosecution case that the figure 80.80 in Ex.
F-2 indicated
the frei~ht that was actually
paid
for th~ consignment on s.s.
Canton. As Ex. M-3 was produced by accused 2 the
consignee
before the customs officer on 24th July 1959 and contained the
said endorsement the High Court was entitled to draw the necessary inference therefrom -supported as it was by Ex. Z-148-W the
Captain"s copy of the bill of lading which bore a similar endorsement.
Counsel contended that the evidence 0f P.W. 90 the appraiser
of customs with regard to the C.l.F. value and the market value
of the goo<ls was at best hearsay and should have been rejected
by both the courts below.
The entries relied on in this connection appear on Ex-D found
in the possession of accused No. I.
There was no evidence to
show that it was written by him.
P.W. 90 J. M. Jamcdar's evidence was that he had been acting as an appraiser of customs
doing valuation work for 11 years and had experience in
the
valuation of Japanese rayon goods, fountain pen refills, Roamer
watches, plastic buttons,_ playing cards etc.
He had taken
samples from the consignments and noted the particulars thereof and had made the valuation of the goods of the consigrunents
in question after making ~nquiries from the market and on the
:basis thereof had stated the
C.I.F. value at the
relevant time.
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HIRA ADVANI v. MAHARASHTRA (Mitter, /.)
827
This witness had been subjected to prolonged cross-examination
but nothing came out therein which would enable the court to
hold that his testimony was unreliable.
The witness had stated
that the goods had bee.n valued by him after making necessary
enquiries from the importers deallii.g in the same or similar goods
supplied from foreign countries as well as by referring to prices
offered or quotations whenever available aJld where it was not
possible to obtain the C.I.F. value from th.:. market he had assessed the value of such items to the best of his judgment and
experience. It 'was argued by counsel that as the witness was
not himself a party .. to whom offers and acceptances had been
made or communicated by others and as he did not claim to
have been prese!)t when such offers and acceptances had been
made, his eviden~ as regards the value was hearsay. It was said
that at best he was a mere conduit pipe of enquiries from others
and was not in the position of an expert.
We find ourselves unable to accept this submission.
Jamedar according to his unshaken testimony had been working as an appraiser of customs
for 11 years out of ms 16 year' service and was engaged in the
valuation of goo$ and ascertaining their C.I.F. value.
He had
occasion to val.ut: goods which formed the subject matter of consignments of s.s. Canton.
He claimed to have made enquiries
in the market with regard thereto. Apart from
his
own experience and knowledJ!;e the record shows that the witness gave
evide)JCe as to the C.(F. value of a very large number of articles
and it should have been quite easy for the defence who crossexamined him at great length to discredit his testimony by offering
evidence from the market that the witness's estimate as to the
C.I;F. value of any particular item was unreliable. After all what
the court had to do in this case was to form an opinion as to whether
the C.I.F. value greatly exceeded the invoice value as put forward
by the prosecuti<ni and Jamedar's evidence certainly went to show
that the C.I.F, value and the market value of the contraband goods
imported was far in excess of the value thereof mentioned in the
invoices.
It may be mentioned here that the document Ex. D mentioned
the consignments inter alia of all the three ships and the High
Court held that the document related to imports in which accused 2 was interested and possession of the document by accused 1 went to show that he too was concerned in such imports.
We now come to the question as to the admissibility of the
statements made to the customs officers under s. 171-A of the
Sea Customs Act. At t)le outset it has to be noted that this section came into the Statute Book in the year 1955 and there was
nothing similar to it in the Act before such inclusion. The section
reads :
"(1 ) Any officer of Customs duly employed in the
prevention of smuggling shall have power to summon
828
SUPREME COURT REPORTS
[1970) I S.C.R.
any person whose attendance he considers
necessary
either to give evidence or to produce a document or
any other thing in any inquiry which such officer is
making in connection with the smuggling of any goods.
(2) A summons to produce documents or other
things may be made for the production of certain specified documents or things or for the production of all
docwnents or things of a certain description in the possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to
attend either in person or by an authorised agent, . as
such officer may direct; and all persons so summoned
shall be bound to state the truth upon any subject respecting which they are examined or make statements
and to produce such documents and other things as may
be required :
Provided that the exemption under section 132 of
the Code of Civil Procedure, 1908 shall be applicable
to any requisition for attendance under this sectiQD..
( 4) Every such inquiry as aforesaid shall be deemed
to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code."
In Maqbool Hussain v. The State of Bombay(') where provisions
of the Sea Customs Act were considered at some length by this
Court before the amendment of 1955 by insertion of s. 171-A it
was said (at p. 742):
"All this is for the enforcement of the levy of and
safeguarding the recovery of the sea customs duties.
There is no procedure prescribed to be followed by the
Customs Officer in the matter of such adjudication and
the proceedings before the Customs Officers
arc not
assimilated in any manner whatever to proceedings in
courts of law according to the provisions of the Civil or
the Criminal Procedure Code. The Customs Officer are
not required to act judicially on legal evidence tendered
on oath and they are not authorised to administer oath
to any witness ........ All these provisions go to show
that far from being authorities bound by any rules of
evidence or procedure established by law and invested
with power to enforce their own judgments or orders the
Sea Customs
Authorities are merely constituted administrative machinery for the purpose of adjudging
confiscation, increased rates of duty and penalty prescribed in the Act. .....
lt9S3J S.C.R. 730.
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HIRA ADVANI v. MAHARASHTRA (Mitter, J.)
829
We are of the opinion: that the Sea Customs Authorities are not a judicial tribunal and the adjudging of
confiscation, increased rate of duty or penalty under
the provisions of the Sea Custom;, Act do not constitute a judgment or order of a court or judicial tribunal
necessary for the purpose of supporting a pica of double
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jeopardy."
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The Court in that case was dealing with the question as to whether an order of confiscation was a punishment inflicted by a
court or a judicial tribunal within the meaning of Art. 20 (2) of
the Constitution.
In Thomas Dana v. The State of Punjab(1 ) the provisiQllS of
the Sea Customs Act were examined again and referring to
s. 187-A it was said:
"This section makes it clear that the Chief Customs
Officer or any other officer lower in rank than him, in
the Customs deP11rtment, is not a "court", and that the
offence punishable under item 81 of the Schedule to
s. 167, cannot be taken cognizance of by any court,
except upon a complaint in writing, made as prescribed
in that section."
With regard to the use of the word 'offence' indiscriminately all
over the Act it was said :
"AU criminal offences are offence>, but all offences
in the sense of infringement of a law, are not criminal
offences .... but when a trial on a charge of a criminal
offence in intended under any one of the entries of the
Schedule aforesaid,
it is only the Magistrate having
jurisdiction, who is empowered to impose a sentence
of imprisonment or fine or both."
It was argued before us that the position became entirely different as a result of.the inclusion of s. 171-A as sub-s. ( 4) of the
section went to show that an enquiry by customs authorities
wherein statements of persons were recorded was " to be deemed
to be a judicial proceeding within the meaning of s. 193 and
s. 228 of the Indiilll. l>enal Code."
Counsel argued that such
proceeding was a judiCial proceeding also for the other purposes
thus attracting the Opef!ltion of s. 132 of the Evidence Act. Apart
from the point as to ll!On,exercise of claim of privilege (about which
we express no opinion), there can be no question that if the said
section of the Evidence' Act is to be attracted to such a proceeding statements made by him in any such inquiry could not be
proved against him ,μi the criminal proceedings launched. It was
(I' 1959) Supp. I S.C.R .• 274 at 286.
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SUPREME COURT REPORTS
[1970] l S.C.R.
argued that
sub-s. (3) of s. 171-A
made it obligatory on the
persons summoned to state tbe truth upon any subject respecting
which he was examined and if the proceeding was judicial proceeding there was nothing to exclude tho applicability of s. 132.
Our attention was draMJ to s. 1 of the Indian Evidence Act which
made the Statute applicable to all judicial proceedings in or before
any court in the whole of India.
As 'court' in s. 3 included all
Judges
and Magistrates
and
all persons, except arbitrators,
legally authorised to take evidence, it was contended
that the
customs officers
being
authorised
by s. 171-A of the
Sea
Customs Act were 'courts" within the meaning of the definition
of s. 3.
Reference may also be made to the de!inition of 'evidence' in the said section which shows that the word means and
includes inter a/ia
all statements which the court permits or
requires to be made before it by witnesses, in relation to matters
of fact under inquiry.
Reference was also made to s. 4(1) of the Code of Criminal
Procedure, 1898 under which 'investigation' for purposes of the
Code includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a M;•gistrate
in this behalf; and cl. (m) which defines "judicial proceeding"
as including any proceeding in the course of which evidence is
or may be leg~lly taken on oath.
Counsel relied strongly oo
the judgment of this Court in Lalji Haridas v. State of Mu.'!arashtra( 1 ) where this Court had to consider whether an Ince metax Officer exercising powers under s. 37 of the Income-tax Act,
1'!22 was a 'court' within the meaning of s. 195 (1) (b) of ·he
Code of Criminal Procedure making the sanction there •ndcr
obligatory for the filing of a complaint in respect of an -.;fence
alleged to have been committed unJer s. 193 of the Penal Code.
Sub-ss. (!) to (3) of s. 37 of the Income-tax Act were worded
somewhat differently from those of sub-ss. (1) to (3) oi s. 171-A
of the Sea Customs Act.
The words in sub-s. (4) of s. 37 ·U"e for
all practical purposes identical with those used in s. 171-A (4).
There this Court by a majority of three to two were of opinion
that the proceedings before the Income-tax Officer were judicial
proceedings not only under s. 193 of the Indian Penal Code but
were also to be treated as proceedings in any court for the purpose of s. 195 (I) (b) of the Code of Criminal Procedure.
The
majority Juugcs referred to the sections in the Indian Penal Code
and the Crimin3l Procedure Code mentioned above and to provisions in various other Acts wherein the legislature had expressly
mentioned that s. 195 Cr .•
~.c. would apply to proceedings before
diverse authorities and accepted the argument that reading s. 193
I. P. C. and s. 195 (1) (h) Cr. P.C. together it would be reason-
(!) {1964j 6 S.C.R. 700.
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HIRA ADVANI v. MAHARASHTRA (Mitter, J.)
3 31
able to hold that proceedings which are judicial under the former
should be taken to be proceediifigs under the latter. According to
the minority Judges although the word 'judicial proceeding' was
wide enough to include not only proceedings before a 'court' but
proceedings before certaiin tribunals it was clear from a decision
of this Court in lndb-China Steam Navigation Co., Ltd. v.
The
Additional Collector of Customs(') that a Customs Officer "was
not a court or Tribunal" ands. 37(4) of the Income-tax Act should
not be. given a meaning different to that given in s. 171-A( 4) of
the Sea Customs Act."
In our view if the Legislature intended that the inquiry under
s. 171-A was to be considered a judicial proceeding not within the
narrow limits therein specified but generally, it could have used
suitable words to express its intention.
Although this Court
gave a wider meaning to. the expression 'judicial proceeding' in
Lalii Haridas's case(1) there is nothing in that judgment to warrant a still wider interpretation of that definition.
0
Mr. Jethmalani rl}ferred to the provisions in the Indian Oaths
Act (X of 1873) and on' the basis of his argument that the statements under s. 171-A ( 4) were made on oath contended that the
proceeding became a. judicial proceeding in the widec &eDse of
the word. In our view the Oaths Act has no application here.
The preamble to the Act shows that it was an Act to consolidate
the law relating to judicial oaths, affirmations and declarations
E
and was enacted because the Legislature thought that it "expedient
ta consolidate the law relating to judicial oaths, affirmations and'
declarations and to repeal the law relating to official oaths, affirmations and declarations." Section 4 of the Act provided that~
F
"The following Courts and persons are authorised
to administer, by themselves or by an officer empowered by them in this behalf,
oaths and afiinnations in
discharge of the' duties or in exercise of tl>o::o powers
imposed or conferred upon them respectively by law:
(a) all Courts and persons having by law or consent of parties a111hority to receive evidence :"
G
The relevant portion of s. 5 rumH
"Oaths or affirmations shall be made by the follov.-ing persOllS :-.
(a) all witnesses, that is to say,
all persons who
may lawfully be examined or give or be required to give,
evidence by or before any Court or person having by
law or consent
l)f parties authority to examine such
persons and to receive evidence : "
(I) [196>1] 6 S.C.R. 594.
(2) [1964] 6 S.C.R. 700.
LISSupCI/69-9
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SUPREME COURT REPORTS
[1970] : S.C.R.
Counsel
argued
that a Customs Officer was a person who
had authority by Jaw to receive evidence withiu the meanini; of
s. 4 of the Oaths Act and anybody who could be lawfully examined l::cfurc such a person would be a witness within the meaning uf s. 5 and as such it would he necessary lo administer oath
to them.
In our view, the argument pr<><:ceds on a complete
misconception of the provisions of the Act.
The preamble to
the Act shows that the oaths referred to are only judicial oaths
and section 7 shows that all such oaths had to be administered
according to such forms &s the High Court might prescribe. The
Customs Ofliccrs have nothing to do with such forms and nothing
has been shown to us that ·any such formality was ever complied
with.
Neither do the records show that any oath was administered to any person making a
statement under s.
171-A. In
Maqboo/ Hussain's case(') this
Court stated
expressly that
the Customs OJficers were not authorised 10 ndminister oath and
the position according to us is not altered by the insertion of
s. i71-A in 1955.
Mr. Jethmalani referred us· to the decision in Queen Empress
v. Tu/ja(') and to certain observations of West, J. in that case.
There it was held that a Sub-Registrar under the Registration Act
(III of 1877) was not a Judge, and, therefore, wa' not a 'Court'
within the meaning of s. 195 of the Code of Cri111inal Procedure
and as such
his sanction was not necessary for a
prosecution
for forgery in respect of a forged document presented for registration in his office.
West, J. had howcv~r. observed that:
"An inquiry is judicial if the object of it is to deter111ine a jural relation between one person and another,
or a group of persons; between him and the cor .. munity
;enerally; but. even a judge, acting without such an
<Jbjcct in view, is not acting judicially."
Relying on this observation counsel argued that the object of
an inquiry under s. 171-A was to find out and establish the jural
liability of the persons
making the statement,
viz.,
whether
he had committed an offence or not, and as such the
inquiry
was a judicial proceeding.
ln our view
the argument is not
worthy of acceptance.
At the stage envisaged by s. 171-A a
Customs Officer is given the power to interrogate any person
in conn.:ction with the smuggling of any goods which it is his
duty to prevent.
Such a person may have nothing to do with
the smuggling of any goods although he may kn.iw where such
goods are or who has or had them.
Sub-s. (3) of s. 171-A docs
not compel any person to make a statement but if he makes a
~tatement he has to state the truth so as to avoid puni~hment
under s. 193 I.P.C.
At that stage nothing may be kmown
as
(I) (1953) S.C. R. 730.
(2) 12 Bombay 36 at 42.
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HIRA ADVANI v. MAHARASHTRA (Mitter, !.)
833
to whether an offence has been committed or who has conunitted
it and the person interrogated at that stage certainly is not a
person accused of or charged with an offence. He is merely called upon to give evidence lo facilitate the inquiry. He is not a
witness giving evidence in a court and his testimony will make
him liable under s. 193 I.P.C. only because of the express provision of Jaw in sub.-s. ( 4) of s. 171-A.
Counsel also argued that as a Customs Officer according to
all the decisions of this Court already mentioned, is to act judicially, a proceeding for recording evidence before him was a
judicial proceeding.
This wholly without any force because even
administrative officers have to act judicially.
Counsel further
argued that a deeming provision in a statute was not necessarily
designed to give an artificial construction to a word or a phrase
but it might be used for .other purposes also.
He referred to the
case of St. Aubyn v. Attorney-General(') where it was said :
The word "deemed" is used a great deal in modem
legislation.
Sometimes it is used to impose tor the
purpose of a statute an artificial construction for a word
or phrase that would not otherwise prevail.
Sometimes
it is used to put beyond donbt a particular constrnction
that might otherwise be uncertain.
Sometimes it iE
used lo give a Comprehensive description that includes
what is obvious,. what is uncertain and what is, in the
ordinary sense, ·impossible."
It was argued that the Legislature might well have nsed the word
"deemed" in sub-s. {4) of s. 171 not in the first of the above
senses but in the seco11d, if not the third.
In our view the meaning to be attached tiHhe word "deemed" must depend upon the
context in which it is used. In Lalji Haridas's case(2 ) this Court
went elaborately lbto the question as to the extent of this deeming provision which would have been wholly redundant if the
word 'deemed' in section 171-A(4) was used in any sense other
than to give an artificial construction.
The second branch of
Mr. Jethmalani's argument under this head was that the priμciple
underlying s. 132 of the Evidence Act was a principle of .Common Law well known to criminal jurisprudence and as · such
was applicable even if s. 132 in terms was not attracted. In this
connection, he referred us to certain observations of Subbarao,
J. (as he then was) iin Amba Lal v. The Union of India and
Others(') where i2 his disqenting judgment on the
interpretation of ss. 168 and 171-A of the Act his Lordship had observed
that:
"To such a situation, though the provisions of the
Code of Criminal Procedure or the Evidence Act may
(1) (1951] 2A.E.R.47l at498.
(2) (1964] 6 S.C.R. 700.
(l) [1961] l S,C.R. 933.
834
SUPREME COURT REPORTS
(1970] I S.C.R.
D•'t apply except in so far as they are statutorily made
applicable, the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply."
Counsel also referred us to the decision in Regina v. Benjamin
Scott(').
The question before the coun in that case was whether ti,c answers to the questions put to the defendant before the
court of bankruptcy relating to his trade dealings and estate tending disclo;~ a fraud of concealment of his property was admissible evidence against
him on indictment
charging
him with
altering, mutilating and falsifying his books with intent to defraud his creditors.
The examination wJs taken in conformity
with s. 117 of the Bankrupt Law Consolid~tion Act (12 and 13
Viet. c. I 06) which enacted that a bankrupt may be examined
by the court "touching all matters_ relating to his trade, dealings
or estate, or which may tend to disclose any secret grant, conveyanc.: or concealment of his lands etc." There was no dispute
that the questions put were relevant as touching matters relating
to his trade etc.
Delivering judgment in which three other Judges
concurred, Lord Campbell, C.J. held that the defendant was
bound to an~wer the questions although by his answers he might
criminatc himself.
According to the learned Chief Justice:
". . . . and we think it would be contravention of
the expressed intentions of the legislature to permit the
bankrupt to refuse to answer such questions; for even
since tl1e reign of Elizabeth successive statutes
have
been passed, purporting to guard
against
frauds in
bankruptcy and the bankrupt, when :J!led upon
to
answer questions
respecting his
estate and
effects,
should not be allowed to avail himself of the common
law maxim "nomo tenetur se ipsum accusare."
With regard to the maxim relied on by the defendant's counsel he
said:
"But Parliament may take away this privilege, and
enact that a party may be bound to accuse himself,
that is, that he must
answer questions by answering
which he may be criminated."
He further held that the maxim could not be treated as an implied
proviso to be subjoined to the I 17th section.
Mr. Jethmalani however
relied on certain observations
of
Coleridge, J. in his dissenting judgment.
In our view the maxim
of the English Common Law can have no application here.
Our
law of evidence which is a complete Code does not permit the
importation of any principle of English Common Law relating
(I) 169 English Reports page 909.
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HIRA ADVANI v. MAHARASHTRA (Mitter, !.)
835
to evidence ill criminal cases to the contrary. Section 2 of the
Indian Evidence Act before its repeal by the Repealing Act (I
of 193 8) provided as follows :
"2.