# ROMESH CHANDRA MEHTA v. STATE OF WEST BENGAL

- **Citation:** [1969] 2 S.C.R. 461
- **Court:** Supreme Court of India
- **Decided:** 1968-10-18
- **Case number:** Criminal Appeal No. 27 of 1967
- **Bench:** J. C. Shah, V. Ramaswami, G. K. Mitter, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/romesh-chandra-mehta-v-state-of-west-bengal-4515
- **Pages:** 20

## Headnote

Sea Customs Act (8 of 1878), and Customs Act (52 of 1962)-Customs Officer-If police officer within the meaning of s. 25 of the Evidence Act (1 of 1872).
The accused were charged with some offences under s. 120-B Indian
Penal Code read with s. 167(81) of the Sea Customs Act, 1878, s. S of
the Import and Export Control Act, 1947, for specific offences under the
Sea Customs Act, and for offences under ss. 108 and 135 of the Customs
Act, 1962. Statements made by the accused to an officer of customs in an
enquiry under s. 171-A of the Sea Customs Act and statements made
were tendered in evidence.
On the questions : ( 1) Whether the statement made by the person
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accused of offences under the Sea Customs Act should also be deemed te>
h..-e 'been recorded under the Customs. Act, 1962.
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(2) Whether an officer of customs under the Sea Customs Act, 1878
is a police officer within the meaning of s. 25 of the Evidence Act and
hence the confessional statements made to him
were
inadmissible
in
evidence.
(3) Whether the statements were inadmissible nnder Art. 20(3) of
the Constitution; and
( 4) Whether an officer of customs, acting under the Customs Act,
1962 is, in. any event, a police officer within the meaning of s. 25 of
the Evidence Act and hence confessional statements made to him were
inadmi.s.sible in evidence.
HELD : (I) Even after the repeal to the Sea Cust<>ms Act, 1878,
admissibility e>f a statement in a trial on a complaint made before a
Magistrate for contravention of the provisions of that Act, must
he
judged in the light of the taint, if any, attaching thereto when the
statement was made; the determination of the question depends only on
s. 25 of the Evidence Act and Art. 20(3) of the Constitution. [466 BJ
(2) A castoms officer under the 1878 Act, had the power to detain,
to arrest, obtain a search warrant to produce the person arrested before
a Magistrate and to obtain an order for remand and to keep him in
cnste>dy with a view to collect evidence.
He may therefore have opportnnities, which a police officer has- of extracting a confession from a
suspect, but a customs officer is not on that account, a police officer.
The test for determin.ing whether an officer of customs is to be deemed
a police officer is whether he is invested with all the powers C>f a. police
officer qua investigation of an offence, including the power to submit a
report under s. 173, Cr. P.C. An officer of customs may exercise the
various powers conferred on him for preventing smuggling of goods duti·
able or prohibited and for adjudging confiscation of those goods. The
enquiry made by him is a judicial proceeding for the purpose of ""· 193
462
SUPREME COURT REPORTS
[1969] 2 S.C.R.
and 228 I.P.C., and his orders are subject to appeal and revision. He
doe1 not exercise, when enquiring into a suspected infringement of the
Sea. Customs Act, powers of investigation which a police officer may,
- ~n m~eshgatlng the com.mission of an offence.
He has no power
to
mves!Jgate an offence tnable by a Magistrate nor the power to submit
a report under s. 173 Cr. P.C. [467 C--D; 469 A~B]
State of Punjab v. Barkat Ram, [1962] 3 S.C.R. 338,
Raja Ram
Jaiswal v. State of Bihar, [1964] 2 S.C.R. 752, Badku Joti Savant v. State
of Mysore, [1966] 3 S.C.R. 698 and P. Shankar Lall v. A.sstt. Collector
of Customs, C.A. Nos. 52 & 104/65 dated 12-12-1967, referred to.
( 3) The statements are not inadmissible because of the protection
granted by Art. 20(3) of the Constitution.
In order that the guarantee against testimonial compulsion incorporated in Art. 20(3) may be claimed by a person it must be established
that when he made the statements sought to be tendered in
evidence
against him, he was a person accused of an offence.
Section 171 of the
Sea Customs Act, refers to 'any person' and includes a person who is
smpected or believed to be concerned in the smuggling of goods.
But
a person, arrested by a customs officer because be is found in possession
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of smuggled good

## Text

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ROMESH CHANDRA MEHTA
v.
STATE OF WEST BENGAL
October 18, 1968
[J. C. SHAH, V. RAMASWAMI, G. K. MITTER, K. S. HEGDE AND
A. N. GROVER, JJ.]
Sea Customs Act (8 of 1878), and Customs Act (52 of 1962)-Customs Officer-If police officer within the meaning of s. 25 of the Evidence Act (1 of 1872).
The accused were charged with some offences under s. 120-B Indian
Penal Code read with s. 167(81) of the Sea Customs Act, 1878, s. S of
the Import and Export Control Act, 1947, for specific offences under the
Sea Customs Act, and for offences under ss. 108 and 135 of the Customs
Act, 1962. Statements made by the accused to an officer of customs in an
enquiry under s. 171-A of the Sea Customs Act and statements made
were tendered in evidence.
On the questions : ( 1) Whether the statement made by the person
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accused of offences under the Sea Customs Act should also be deemed te>
h..-e 'been recorded under the Customs. Act, 1962.
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(2) Whether an officer of customs under the Sea Customs Act, 1878
is a police officer within the meaning of s. 25 of the Evidence Act and
hence the confessional statements made to him
were
inadmissible
in
evidence.
(3) Whether the statements were inadmissible nnder Art. 20(3) of
the Constitution; and
( 4) Whether an officer of customs, acting under the Customs Act,
1962 is, in. any event, a police officer within the meaning of s. 25 of
the Evidence Act and hence confessional statements made to him were
inadmi.s.sible in evidence.
HELD : (I) Even after the repeal to the Sea Cust<>ms Act, 1878,
admissibility e>f a statement in a trial on a complaint made before a
Magistrate for contravention of the provisions of that Act, must
he
judged in the light of the taint, if any, attaching thereto when the
statement was made; the determination of the question depends only on
s. 25 of the Evidence Act and Art. 20(3) of the Constitution. [466 BJ
(2) A castoms officer under the 1878 Act, had the power to detain,
to arrest, obtain a search warrant to produce the person arrested before
a Magistrate and to obtain an order for remand and to keep him in
cnste>dy with a view to collect evidence.
He may therefore have opportnnities, which a police officer has- of extracting a confession from a
suspect, but a customs officer is not on that account, a police officer.
The test for determin.ing whether an officer of customs is to be deemed
a police officer is whether he is invested with all the powers C>f a. police
officer qua investigation of an offence, including the power to submit a
report under s. 173, Cr. P.C. An officer of customs may exercise the
various powers conferred on him for preventing smuggling of goods duti·
able or prohibited and for adjudging confiscation of those goods. The
enquiry made by him is a judicial proceeding for the purpose of ""· 193
462
SUPREME COURT REPORTS
[1969] 2 S.C.R.
and 228 I.P.C., and his orders are subject to appeal and revision. He
doe1 not exercise, when enquiring into a suspected infringement of the
Sea. Customs Act, powers of investigation which a police officer may,
- ~n m~eshgatlng the com.mission of an offence.
He has no power
to
mves!Jgate an offence tnable by a Magistrate nor the power to submit
a report under s. 173 Cr. P.C. [467 C--D; 469 A~B]
State of Punjab v. Barkat Ram, [1962] 3 S.C.R. 338,
Raja Ram
Jaiswal v. State of Bihar, [1964] 2 S.C.R. 752, Badku Joti Savant v. State
of Mysore, [1966] 3 S.C.R. 698 and P. Shankar Lall v. A.sstt. Collector
of Customs, C.A. Nos. 52 & 104/65 dated 12-12-1967, referred to.
( 3) The statements are not inadmissible because of the protection
granted by Art. 20(3) of the Constitution.
In order that the guarantee against testimonial compulsion incorporated in Art. 20(3) may be claimed by a person it must be established
that when he made the statements sought to be tendered in
evidence
against him, he was a person accused of an offence.
Section 171 of the
Sea Customs Act, refers to 'any person' and includes a person who is
smpected or believed to be concerned in the smuggling of goods.
But
a person, arrested by a customs officer because be is found in possession
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of smuggled goods or on suspicion that he is concerned in smui.-
glinu. is not, when called upon by the customs offii;er to make a statement or to produce a document or thing, a person accused of an offence
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within the meaning of Art. 20(3) of the Constitution.
The steps takea
by the customs officer are for the purpose of holding an enquiry under
the Sea ~toms Act and for adjudging confiscation of goods dutiable
or prohibited and imposing penalties. These steps are taken to prevent
smuggling and to recover duties of customs. The customs officer docs
not, at that stage, accuse the person suspected of infringing the provisions
of the Sea Customs
Act or
with the
commission of an offence,
nor is he
formally
accusing
the
person
of any offence punishE
able at a trial befdre a Magistrate. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before
a
Magistrate there is aQ. accusation when a complaint is lodged by
an
officer competent in that behalf before the Magistrate.
This Court in
State of Bo-mbay v. Kathi Kalu Oghad [1962] 3 S.C.R. 10 in using the
expression 'the person accused must have stood in ·the character of an
accused person" did not set out a different test for determining the .sta~
when a person may be said to be accused of an offence. [469 G-470 C;
F
471 GJ
. Raj Narayan Lal Bansilal v. Maneck, Phiroz Mistry [1961] 1 S.C.ll.
417, followed.
Maqbool Hussain v. State of Bombay. [1953]
S.C.R.
730, M.P.
Sharma & Ors. v. Satish Chandra, District Magistrate,
Delhi,
[1954]
S.C.R. 1077 and Bhagwandas Goenka v. Union of India, Cr. A. No. 131
& 132 of 1961 dated 20-9-1963, referred to.
Collector of Customs, Madras v. Kotumal Bhirumal Pihlajani, A.LR.
1967 Mad. 263 and Laxman Padma Bhagat v. State,
61
B.L.R.
317,
approved.
Calcutta Motor .& Cycle Co. v. Collector of Customs, A.LR. 1956
Cal. 253 and Collector of Customs v. Calcutta Motor and Cycle
Co.
G
A.I.R. 1958 Cal. 682, disapproved.
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(4) In certain matters the 1962 Act differs from the 1878 Act. For
instance under the 1878 Act search of any place could not be made by
a cnsto~s officer on his own accord : he had to apply for and obtain a
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R. C. MEHTA V, WEST BENGAL (Shah, J.)
463
search warrant, but under s, 105 of the 1962 Act, it is open to the
ASiistant Collector of Customs himself to issue a search warrant. A
proper officer is also entitled under the 1962 Act to stop and search
conveyances : he is entitled to release a person on. bail or otherwise. and
for this purpose has the same powers and is subject to the same provisions as the officer in charge of a police station is,
But the•e additional
powers do not make him a police officer within the meaning of s. 25
of the Evidence Act,
Though he has all the powers of an officer in
cbarge of a police station the expression 'otherwise' does not confer on
him the power to lodge a report before a Magistrate under s. 173
Cr.
P,C, and it is implicit in the provisions of s. 137 of the 1962 Act tilat
the proceedings before a Magistrate can only be commenced by way of
a complaint and not on a report made by a customs officer. The powers
conferred on a c\Jstoms officer and the proceedings taken by him arc
for the purpose of holding an enquiry into suspected cases of smuggling.
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His orders are appealable and revisable. Therefore, a customs officer
. Wide'r the 1962 Act is not a police officer within the meaning of s. 25
of the Evidence Act [478 D-G; 479 A]
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Under s. 104 ( 1), if the Customs Officer has reason to believe that
a person has been guilty of an offence punishable under s, 135 he could
arrest such person, But the section only prescribes the conditions in
which the, power of arrest may be exercised.
By informing such a person of the grounds of his arrest, the customs officer does not formally
accuse him with the commission of an offence.
Arrest and detention
are only for the purpose of holding effectively an enquiry with a view
to adjudging confiscation of dutiable or prohibited goods and imposing
penalties, At that stage there is no question of the offender being charged before a Magistrate.
If he forms an opinion that the offender should
be prosecuted he may prefer a complaint in the manner provided under
s. 137 and until a complaint is so filed the person against whom an enquiry
is commenced under the Customs Act does not stand in the, character
of a person accused of an offence under s. 135. [479 D---F]
Under the Customs Act of 1962, the Customs Officer is authorised to
confiscate
goods
improperly
imported
into
India
and to
impose
penalties.
But
on that account the basic scheme of the
1878
Act is not altered.
The customs officer, even under the 1962
Act, continues to remain a revenue
officer primarily
concerned with
the detection of smuggling and enforcement and levy of proper dnties
and prevention of entry into India of dutiable goods without payment of
duty and of goods of which entry is prohibited. He does not on that
account become a police officer, for, even under the 1962 Act, a formal
accusation is deemed to be made only when a complaint is made before
a competent Magistrate to try the person guilty of the infraction under
any of the ss. 132 to 135 of the Act [479 G-480 Bl
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
27 of 1967.
Appeal by special leave from the judgment and order, dated
September 8, 1966 of the Calcutta High Court in Criminal Revision No. 231 of 1965 and Criminal Appeal No. 45 of 1968.
Appeal by special leave from the judgment and order, dated
November 14, 1967 of the Bombay High Court in Criminal Revision Application No. 682 of 1967 and Criminal Appeal No. 46
of 1968.
464
SUPREME COURT REPORTS
[1969] 2 S.C.R.
Appeal by special leave from the judgment and order, dated
November 9, 1967 of the Bombay High Court in Criminal Revision Application No. 447 of 1967 and Criminal Appeal No. 47
of 1968.
Appeal by special leave from the judgment aud order, dated
November 9, 1967 of the Bombay High Court in Criminal Revision Application No. 475 of 1967.
B. c. Misra, P. K. Ghosh for P. K. Chakravarty, for the appellaut (in Cr. A. No. 27 of 1967).
C. K. Daphtary, Attorney-General, B. Sen and G. S. Chatterjee
for the respondent (in Cr. A. No. 27 of 1967).
K. Rajendra Chaudhuri, for the appellant (in Cr. A. No. 45
of 1968).
B. Sen and S" P. Nayar, for the respondents (in Cr. A. No. 45
of 1968).
A. K. Sen, Porus A. Mehta, Janendra Lal, J. R. Gagrat and
B. R. Agarwala, for the appellant (in Cr. A. No. 46 of 1968).
B. Sen, A. P. Gandhi, R. N. Sachthey, S. P. Nayar and B. D.
Sharma, for the. respondents (in Cr. A. No. 46 of 1968).
A. S. R. Chari, B. M. Patel and M. V. Goswami, for the
appellaut (in Cr. A. No. 47 of 1968).
B. Sen, A. P. Gandhi, R. N .. Sachthey and S. P. Nayar, for
the respondents (in Cr. A. No. 47 of 1968)·
The Judgment of the Court was delivered by
Shah, J.
The Assistant Collector of Customs filed a complaint . against Ramesh Chandra Mehta and four others in the
Court of the Additional District Magistrate, 24 Parganas, charging them with offences under s. 120BI.P.
Code read with s.
167(81) of the Sea Customs Act, 1878, s. 5 of the Import &
Export Control Act, 194 7, and for specific offences committed
in pursuance of the conspiracy.
It was the case of the complainant that when Mehta was searched on December 13, 1962,
at the Dum Dum Airport, Calcutta, diamonds and jewellery
worth Rs. 1,91,000 ..yere found on his person and currency notes
of Rs. 27,000 were found in a suit-case with him and that pursuant to a statement made by Mehta diamonds, pearls and jewellery of the value of Rs. 2,61,800 and correspondence telegrams
aud cables bearing upon the conspiracy to smuggle gold, precious stones etc. into India from foreign countries were recovered from different places.
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R. C. MEHTA V. WEST BENGAL (Shah, J.)
465
The complainant tendered in evidence at tb.e trial certain
confessional statements which he claimed were made before the
Customs Authorities in an enquiry under s. 171-A of the Sea
Customs Act, 1878, by Mehta and the other persons accused.
Counsel for the accused objected to the admissibility of that
evidence but the objection was overruled by the Trial Magistrate.
The High Court of Calcutta rejected a petition invoking
their revisional jurisdiction against the order of the Trial Magistrate. With special leave, Mehta has appealed to this Court.
Counsel for Mehta urged three contentions in support of
the appeal:
(1) that the statements tendered in evidence by the Customs Officer must be deemed by virtue of s. 160 of
the Customs Act 52 of 1962 to be recorded under
the provisions of that Act and their admissibility may
be adjudged in the light of that Act alone;
(2) that an Officer of Customs is a "police officer" within
the meaning of s. 25 of the Indian EVidence Act,
1872, and a confessional statement made before
him is inadmissible in evidence at the trial of the
appellant and his co,accused;
(3) that the statements made before the Customs Officer
were otherwise inadmissible, because Mehta and
others being persons accused of an offence were
compelled by the provision of s. 171-A of the Sea
Customs Act, 1878, to be witnesses against themselves within the meaning of Art. 20(3) of the Constitution.
By s. 160(1) of Act 52 of 1962 read with t!1e Schedule to
that Act, the Sea Customs Act 8 of 1878 was repealed.
By
sub-s. (3) of s. 160 it is provided:
"Notwithstanding the repeal of any enactment by
this section,-
. (a) . any notification, rule, regulation, order or
notice issued or any appointment or declaration made
or any licence, permission or exemption granted or
any assessment made, confiscation adjudged or any
d~ty levied or any penalty or fine imposed or any forfeiture, cancellation or discharge of any bond ordered
or any other thing done or any "other action taken
~nder .any repealed enactment shall, so far as it is not
mcons1stent with the provisions of this Act, be deemed
to have been done or t~ken under the corresponding
provision of this Act;
(b) .
"
466
SUPREME COURT REPORTS
[1969] 2 S.C.R.
But the admissibility of statements recorded by a Customs
Officer under s. 171-A of the Sea Customs Act, 1878, depends
upon the determination of the question whether the statements
when made were inadmissible under s. 25 of the Evidence Act,
and Art. 20(3) of the Constitution.
Even after the repeal of
the Sea Customs Act, admissibility of the statement made in
a com plaint made before a Magistrate for contravention of the
provision of that Act must be adjudged in the light of the taint,
if any, attaching thereto when the statement wa~ made.
The
first contention must, therefore, fail.
Section 25 of the Indian Evidence Act, 1872, enacts that
"No confession made to a police officer shall be proved as
against a person accused of any offence''. The broad ground for
declaring confessions made to a police-officer inadmissible is to
avoid the danger of admitting false confessional statements obtained by coercion, torture or ill-treatment.
But a Customs
Officer is not a member of the police force. He is not entrusted
with the duty to maintain law and order. He is entrusted witll
powers which specifically relate to the collection of customs
duties and prevention of smuggling.
There is no warrant for
the contention raised by counsel for Mehta that a Customs Officer is invested in the enquiry under the Sea Customs Act with
all the powers which a police-officer in charge of a police station has under the Code of Criminal Procedure. Under the Sea
Customs Act, a Customs Officer is authorised to collect customs
duty to prevent smuggling and for that purpose he is invested
with the power to search any person on reasonable suspicion
(s. 169); to screen or X-ray the body of a person for detecting
secreted goods (s, 170A); to arrest a person against whom a
reasonable suspicion exists that he has been guilty of an offence
under the Act (s. 173); to obtain a search warrant from a Magistrate to search any place within the local limits of the jurisdiction of such Magistrate (s. 172); to collect information by summoning persons to give evidence and produce documents
(s.
171-A);_and to adjudge confiscation under s. 182. He may exercise these powers for preventing smuggling of goods dutiable oc
prohibited and for adjudging confiscation of those goods. For
collecting evidence the Customs Officer is entitled to serve a summons to produce a document or other thing or to give evidence,
and the person so summoned is bound to attend either in person or
by an authorized agent, as such officer may direct, and the person
so summoned is bound to state the truth upon any subject respecting which he is examined or makes a statement and to produce
such documents and other things as may be required. The power
to arrest, the power to detain, th.e power to search or obtain a
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R. C. MEHTA v. WEST BENGAL (Shah,/.)
467
se11rch warrant and the power to collect evidence are vested in
the Customs Officer for enforcing compliance with the provisions
of the Sea Customs Act.
For purpose of ss. 193 and 228 of
the Indian Penal Code the enquiry made by a Customs Officer is
& judicial proceeding. An order made by him is appealable to
the Chief Customs-authority under s. 188 and against that order
revisional jurisdiction may be exercise,d by the Chief Customsauthority and also by the Central Government at the instance of
rny person aggrieved by any decision or order passed under the
Act.
The Customs Officer does not exercise, when enquiring
into a suspected infringement of the Sea Customs Act, powers
of investigation which a police-officer may in investigating the
commission of an offence. He is invested with the power to enquire into infringements of the Act primarily for the purpose of
adjudicating forfeiture and penalty. He has no power to investigate an offence triable by a Magistrate, nor has he the power to
submit a report under s. 173 of the Code of Criminal Procedure.
He can only make a complaint in Miting before a competent
Magistrate.
In The State of Punjab v. Barkat Ram(') this Court held
(Subba Rao, J., dissenting) that a Customs Officer under the
'Land Customs Act 19 of 1924 or under the Sea Customs Act 8
of 1878 is not a police-officer for the purpose of s. 25 of the
Indian Evidence Act, 1872, and that conviction of the offender
on the basis of his statements to the Customs Officer for offences
under s. 167(8) of Sea Customs Act, 1878, ands. 23(1) of the
Foreign Exchange Regulation Act, 194 7, is not illegal.
Raghubar Dayal, J., who delivered the majority judgment of this
Court observed :
" . . . . . that the powers which the police officers
enjoy are powers for the effective prevention and detection of crime in order to maintain Jaw and order.
The powers of customs officers are really not for
such purpose.
The~ powers are for the purpose of
checkmg the smuggling of goods and the due realisation of customs duties and to determine the action to
be taken in the interests of the revenues of the country
by way of confiscation of goods on which no duty had
been paid and by imposing penalties and fines."
;
H
In Raja Ram Jaiswal v State of Bihar(2 )
the decision in
Barkat Ram's case(') was distinguished and it was observed
••
(I) [1962] 3 S.C.R. 338.
(2) 1964] 2 S.C.R. 752.
468
SUPREME COURT REPORTS
[1969] 2 S.C.Ri
(Raghubar Dayal, J ., dissenting) that the expression "police
A
officer" in s. 25 of the Evidence Act was not to be construed
narrowly but in a wide and popular sense.
The Court in that
case held that an Excise Inspector or Sub-Inspector under the
Bihar and Orissa Excise Act 2 of 1915 upon whom . all the
powers of a police officer were conferred is entitled to investigate
any offence under the Excise Act and to submit a charge-sheet
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and on that account he must be regarded as a police officer within the meaning of s. 25 of the Evidence Act. The Court observed that the object of enacting s. 25 of the Evidence Act
was to eliminate from consideration confessions made to an
officer who by virtue of his position, could extract by force, tor- ·
ture or inducement a confession, and an Excise Officer acting · C
under s. 78(3) of the Bihar & Orissa Excise Act, 1915, was in
the same position as an officer in charge of a police station making an investigation under Ch. XIV of the Code of Criminal
Procedure, and had the same opportunities of extracting a confession from a suspect.
,
In Badku Joti Savant v. State of Mysore(') this Court held
that the officer empowered under the Central Excise and Sj!}t
Act 1 of 1944 and when making enquiries for purposes of that
Act invested with powers of an officer-in-charge of a police station investigating a cognizable offence, is not a police officer
within the meaning of s. 25 of the Indian Evidence Act, and the
statement of an accused person recorded by him is not hit by that
section.
The Court in that case distinguished the decision in
Raja Ram Jaiswal's casc(2) ·and observed that a Central Excise
Officer was invested with powers of an officer-in-charge of a
police station when investigating a cognizable offence, but he
had no power to submit a report under s. 173 of the Code of
Criminal Procedure, and on that account he was not a police
officer . within the meaning of s. 25 of the Evidence Act.
In P. Shanker Lall and Ors. v. The Assistant Collector of
Customs, Madras,( 3 ) Sikri, J., delivering the judgment of the
Court observed that a confession made before the Assistant Collector of Customs was not inadmissible under s. 25 of the Indian
Evidence Act.
Counsel for Mehta contended that a Custoins Officer who
has power to detain, to arrest, to produce the person arrested
before a Magistrate, and to obtain an order for remand and
keep him in his custody with a view to examine the person so
arrested and other persons with a view to collect evidence, has
opportunities which a police officer has of extracting confessions
(1) (1966] 3 S.C.R. 698.
(2) [1964] 2 S.C.R. 752.
(3) Cr. As. Nos. 52 & 104 of 1965 decided on December 12, 1967.
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R. C. MEHTA V. WEST BENGAL (Shah, J.)
469
from a suspect, and if the expression police officer be not narrowly understood, a statement recorded by him of a person who
is accused of an offence is inadmissible by virtue of s. 25 of
the Indian Evidence Act. But the test for determining whether
an officer of customs is to be deemed a police officer is whether
he is invested with all the powers of a police officer qua investigation of an offence, including the power to submit a report
under s. 173 of the Code of Criminal Procedure. It is not claimed that a Customs Officer exercising power to make an enquiry
may submit a report under s. 173 of the Code of Criminal Procedure .
The remaining contention that a person against whom an
enquiry is made by the Customs Officer under the Sea Customs
Act is a person accused of an offence and on that account he cannot be compelled to be made a witness against himself, and the
,evidence if any collected by examining him under s. 171-A of the
Sea Customs Act is inadmissible has, also no substance. By Art.
20(3) of the Constitution a person who is accused of any offence
may not be compelled to be a witness against himself. The guarantee is, it is true, not restricted to statements made in the
witness box.
This Court in The S"1te of Bombay v. Kathi Kalu
Oghad(') observed at p. 37 :
" 'To be a witness' means imparting knowledge
in respect or relevant facts by an oral statement or a
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statement in writing, made or given in Court or otherwise.
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'To be a witness' in its ordinary grammatical sense
means giving oral testimony in Court.
Case law has
gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a
person accused of an offence, orally or in writing."
~ut in order. that the guarantee against testimonial compulsion
mcorporated m Art. 20(3) may be claimed by a person it has to
be establi~hed .that when. he made the statement sought to be
G tendered m evidence agamst him, he was a person accused of
an offence. Under s. 171-A of the Sea. Customs Act a Customs
Officer has power in an enquiry in connection with the smugglin<>
of goods to su~on ~ny person whose attendance he consider~
necessary, to give evidence or to produce a docwnent or any
other thmg, and by cl. (3) t!ie person ~o summoned is bound to
state the truth upon any subiect respectmg which he is examined
or. makes statements ~nd to produce s~ch documents and other
thin_gs as may be reqmred. The expression "any person" includes
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(l) [1962] 3 S.C.R. 10.
470
SUPREME COURT REPORTS
[1969] 2 S.C.R.
a person who is suspected or believed to be concerned in the
smuggling of goods. But a person arrested by a Customs Offic~r
because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not when called upon
A
by the Customs Officer to make a statement or to produce a
document or thing, a person accused of an offence within the ·
meaning of Art. 20(3) of the Constitution. The steps taken by
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the Customs Officer are for the purpose of holding an enquiry
under the Sea Customs Act and for adjudging confiscation of
goods dutiable or prohibited and imposing penalties.
The Customs Officer does not at that stage accuse the person suspected
of infringing the provisions of the Sea Customs Act with the
commission of any offence.
His primary duty is to prevent
smuggling and to recover duties of customs when collecting evidence in respect of smuggling against a person suspected ot infringing the provisions of the Sea Customs Act, he is not accusing
the person of any offence punishable at a trial before a Magistrate. In Maqbool Hussain v.
The State of Bombay('), the
Court held that a person against whom an order for confiscation
of goods had been made in proceedings taken by Customs Officers
under s. 167 of the Sea Customs Act and was subsequently prosecuted before a Magistrate for offences under the Foreign Exchange Regulation Act, 194 7, could not plead the protection
of Art. 20(2), since he was not "prosecuted" before the Customs
authorities, and the order for confiscation was not a "punishment"
inflicted by a Court or judicial tribunal within the meaning of
Art. 20(2) of the Constitution and the prosecution was not barred.
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In M. P. Sharma & Ors. v. Satish Chandra, District Magistrate, Delhi and Ors. (2 ) this Court observed that a compelled
production of. incriminating documents by a person against whom
F
a First Information Report under the Code of Criminal Procedure has been made is testimonial compulsion within the meaning
of Art. 20(3) of the Constitution. But a search and seizure of a
document under the provisions of ss. 94 and 96 of the Code of
Criminal Procedure do not amount to compelled production thereof within the meaning of Art. 20(3). It was observed by· JaganG
nadhadas, J., at p. 1087 :
"Broadly stated in the guarantee in Article 20(3) is
against "testimonial compulsion".. . . .... 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
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(1) (1953] S.C.R. 730.
(2) [1954] S.C.R. 1077.
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R. C. MEHTA V. WEST BENGAL (Shah, J.)
4 71
him. It is available. therefore to a person against whom
a formal accusation relating to the commission of an offence has been levelled which in the normal course may
result in prosecution."
The Court further observed that the guarantee under Art. 20(3)
is available to the petitioners against whom a First Information
Report had been recorded.
In Raja Narayanlal Bansilal v. Maneck Phiroz Mistry and
Anr.( 1 J admissibility of a statement made before an inspector
appointed by the Government of India under the Indian ComparuQ; Act, 1913, to investigate the affair~ of a Company and
to report thereon was canvassed. It was observed at p. 436 :
" . . . one of the essential conditions for invoking the constitutional guarantee enshrined in Art. 20(3)
is that a formal accusation relating to the commission of
an offence, which would normally lead to his prosecution, must have been levelled against the party who is
being compelled to give evidence against him."
Sinha, C.J., speaking for the majority of the Court in Kathi Kalu
Oghad's Case(') stated that :
·
''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."
In the two earlier cases M. P. Sharma's case(") and Raja
Narayan/al Bansilal's Case(') this Court in describing a person
accused used the expression "against whom a formal accusation
had been made", and in Kathi Kalu Oghad's case(2 ) this Court
used the expression "the person accused must have stood in the
character of an accused person". Counsel for Mehta urged that
the earlier authorities were superseded in Kathi Kalu Oghad's
case(_
2
)
~nd it was ruled that a statement made by a person
standmg m the character of a person accused of an offence is inadmissible by virtue of Art. 20(3) of the Const,itution. But the
Court in Kathi Kalu Oghad's case(2 ) has not set out a different
test for determining the stage when a person may be said to be
accused of an offence. In Kathi Kalu Oghad's case( 2 ) the Court
merely set out the principles in the light of the effect of a formal
accusation on a person, viz., that he stands in the character of
(l) [1961] 1 S.C.R. 417.
(2) [1962] J S.C.R. 10.
(3) [1954] S.C.R. 1077.
472
SUPREME COURT REPORTS
[1969] 2 S.C.R.
an accused person at the time when he makes the statement.
Normally a person stands in the character of an accused when a
First Information Report is lodged against him in respect of an
offence before an Officer competent to investigate it, or when a
complaint is made relating to the commission of an offence before
a Magistrate competent to try or send to another Magistrate for
trial the offence. Where a Cu~toms Officer arrests a person and
informs that person of the grounds of his arrest, (which he is
bouna to do under Art. 22(1) of the Constitution,) for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has
taken place, there is no formal accusation of an offence.
In
the case of an offence by infringement of the Sea Customs Act
and punishable at the trial before a Magistrate there is an accusation when a complaint is lodged by an officer competent in that
behalf before the Magistrate.
The decision of this Court in Bhagwandas Goenka v. The
Union of India(') lays down no principle inconsistent with the
view we have expressed. In Bhagwandas Goenka's case(') the
appellant was charged with using a sum of 4,000 dollars borrowed by him when he was on a visit to the United States of America
and with depositing cheques of the value of 500 dollars with a
foreign bank in which he had an account, and thereby infringing
ss. 4(1) and (3) read with s. 23 of the Foreign Exchange Regulation Act 7 of 194 7. At the trial before a Magistrate the appellant
contended that the information demanded and obtained from
him on September 19, 1952 and May 14, 1953 by the Reserve
Bank of India. under s. 19 of the Foreign Exchange Regulation
Act with respect to the two sums was inadmissible. This Court
negatived the contention observing that no information was collected from the accused after July 4, 1955, when he was asked
to show cause by the Reserve Bank why he should not be prosecuted for cqntravention of the various provisions of the Act with
respect to the two sums.
The Court observed :
"The information collected under s. 19 is for the
purpose of seeing whether a prosecution should be
launched or not.
At that stage when information is
being collected there is no accusation against the person from whom information is being collected. It may
be that after the information has been collected to Central Government or the Reserve Bank may come to the
conclusion that there is no case for prosecution and the
person concerned may never be accused. It cannot
therefore be predicated that the person from whom in-
(!) Cr. As. Nos. 131 & 132of1961 dated September 20, 1963.
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R. C. MEHTA V. WEST BENGAL (Shah, J.)
473
formation is being collected under s. 19 is necessarily
in the position of an accused. The question whether he
should be made an accused is generally decided after
the information is collected and it is when a show cause
notice is issued, as was done in this case on July 4,
1955, that it can be said that a formal accusation has
been made against the person concerned. We are therefore of the opinion that the appellant is not entitled to
the protection of Art. 20(3) with respect to the information that might have been collected from him under s. 19
before July 4, 1955."
Under s. 19 of the Foreign Exchange Regulation Act, 1947, it
is open to the Central Government or the Reserve Bank of India,
if it considers necessary or expedient, to obtain and examine
any information, book or other document in the possession of
any person or which in the opinion of the Central Government
or the Reserve Bank it is possible for such person to obtain and
furnish, by order in writing, to require any such person to furnish, or to obtain and furnish, to the Central Government or the
Reserve Bank or any person specified in the order with such
information, book or other document.
The information which
wa~ asked for and obtained in Bhagwandas Goenka's case(')
under s. 19 of the Foreign Exchange Regulation Act was not
held to be information obtained in violation of Art. 20(3) of the
Constitution, for the accusation in view of the Court was made
against the appellant for the first time on July 4, 1955, when the
Reserve Bank of India called for an explanation of the appellant
why he should not be prosecuted for contravention of the various
provisions of the Foreign Exchange Regulation Act.
Under the
proviso to s. 23(3) of that Act it is enacted that "where any such
offence is the contravention of any of the provisions of this Act
or any rule, direction or order made thereunder which prohibits
the doing of an act without permission, no such complaint shall
be made unless the person accused of the offence has been !Ziven
an opportunity of showing that he had such permission."
I~ the
light of the proviso the Court assumed that when an authority
":'hich is statutorily a~tho~sed and bound to call for an explanat10n before ~ complamt 1s filed, serves a formal notice calling
for explanat10n, a formal accusation may be deemed to be
made. But that is not the position in the present case.
In our judgment the view expre10ed by Sinha, J., in Calcutta
Motor ~nd Cycle C,omrany v .. Collector of Customs( 2 ) that a
pr~ee?mg under s. /~1-A o_f the Sea Customs Act, 1878, being
prelimmary to a cnmma; tnal any statement procured would be
(l) Cr. As. Nos. 131 & 132 of 1961 dated Soptember 20 1963
(2) A.I.R. [1956] Cal. 253.
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3 Sup. C.I./69-13
474
SUPREME COURT REPORTS
[1969] 2 S.C.R.
inadmissible under Art. 20(3) there being a formal accusation
relating to the commission of an offence which in the normal
course may result in prosecution, is not correct.
Opinion of
the Court recorded in appeal from that judgment in Collector of
Customs & Ors. v. Calcutta Motor and Cycle Company(') in
which Chakravartti, C.J., observed that the protection of Art.
20(3) avails even where a person is not formally accused or
charged is inconsistent with the judgments of this Court already
referred, cannot_ also be accepted as correct.
The views expressed by the Madras High Court in- Collector
of Customs, Madras v. Kotumal Bhirumal Pihlajani( 2 ) at p.
275 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 sections 107 and 108 of the Customs Act
of 1952 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,",
'
and by the Bombay High Court in Laxman Padma Bhagat v. The
State(') that a person examined under s. 171-A of the Sea Customs Act, 1878, 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 are, in our judgment, substantially correct.
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We, therefore, agree with the High Court that the statements
made by Mehta and other persons accused before the Additional
District Magistrate, 24 Parganas, were not inadmissible in evidence because of the protection granted under Art. 20(3) of the
J7
Constitution.
Criminal App€a[ No. 45 of 1968
On March 6, 1963, six parcel!; containing watches were
seized by the Customs authorities at Santa Cruz Airport, Bombay. The Customs authorities recorded statements of the appellant Chitnis and attached certain documents from him.
Thereafter the Customs authorities filed a complaint against Chitnis and
thirteen others for offences under s. 120B LP. Code read with
s. 167(81) of the Sea Customs Act, and s. 135 of the Customs
Act, 1962 read with s. 109 I.P. Code alleging that between
August 15, 1952 and January 28, 1963, and between February
5, 1963 and March 6, 1963, the offenders had imported wat-
(!) A.J.R. I 958 Cat. 682.
(3) 67 B.L.R. 317.
(2) A.l~R. 1967 Mad. 263".
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R. C. MEHTA V. WEST BENGAL (Shah, J.)
47S
ches and had on that account committed offences under s. 120B
J.P. Code read with s. 167(81) of the Sea Customs Act, and s.
120 I.P. Code read with s. 135 of the Customs Act, 1962, read
with s. 109 I.P. Code respectively.
At the trial the prosecutor
tendered in evidence certain statements made before the Customs
authorities by the accused. The Advocate for the accused objected to the admissibility of those statements. The Trial Magistrate
rejected the contention and in a revision application filed ~fore
the High Court of Bombay the order passed by the Presidency
Magistrate was confirmed.
Criminal Appeal Ne>. 46 of 1968
Dady Adarji Fatakia was arrested on December 26, 1964.
At that time he was found in possession of 540 watches. He was
served with a summons under s. 108 of the Customs Act, 1962,
and he made a statement before a Customs Officer. Thereafter a
complaint was filed before the Presidency Magistrate, Bombay,
against Fatakia for offences under s. 135 (a) and (b) of the Customs Act, 1962. At the trial the public prosecutor supplied to
the accused copies of the statements made by Fatakia. The
accused Fatakia then applied to th.~ Magistrate that the statement
if tendered in evidence would be inadmissible because they were
inadmissible under s. 25 of the Evidence Act or s. 162 of the Code
of Criminal Procedure or under Art. 20(3) of the Constitution.
The contentions were negatived by the Magistrate and in a revision application to the High Court the order of the Presidency
Magistrate was confirmed .
Criminal Appeal No. 47 of 1968
On May 30, 1965, the Customs Officers seized 11,000 tolas
of gold from a room in the occupation of the appellant Poonamchand and then recorded his statement after serving him with a
summons under s. 108 of the Customs Act, 1962.