H.N. Devani, J.
Bhavin Impex Pvt. Ltd.
Special Criminal Application No. 1192 of 2009, decided on
29-10-2009
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16. In the background of the facts and
contentions noted hereinabove, two issues mainly arise for determination.
Firstly, whether arrest can be made under Section 13 of the
Central Excise Act, 1944 without
issuance of warrant and whether lodgment of an FIR or a complaint is necessary
as a precondition for exercise of powers of arrest under Section 13 of the Act
and secondly, whether criminal prosecution cannot be initiated or continued till
the final adjudication by the Customs and
Excise
Department.
17. For the purpose of deciding the aforesaid issues, it
would be necessary to examine the scheme of the
Central Excise Act in the context
of the relevant provisions. The Preamble to the
Central Excise Act, 1944 says;
"Whereas it is expedient to consolidate and amend the law relating to
central duties of
excise on goods
manufactured or produced in certain parts of India". Practically, all the
provisions are enacted to achieve this object. Thus, the main purpose of the Act
is to levy and collect
central excise duties and
Central Excise Officers have been
appointed therein for this main purpose. In order that they may carry out their
duties in this behalf, powers have been conferred on them to see that the duty
is not evaded and persons guilty of evasion of duty are brought to book. Section
9 of the Act provides for offences and penalties and the list of offences are
enumerated therein which include contravention of any of the provisions of
Section 8 or of a rule made under clause (iii) or clause (xxvii) of sub-section
(2) of Section 37; evasion of payment of any duty payable under the Act; removal
of excisable goods in contravention of any of the provisions of the Act or any
rule made thereunder; acquiring possession of or in any way dealing with any
excisable goods which are liable for confiscation under the Act or any rule made
therein; contravention of any of the provisions of the Act or any of the rules
in relation to credit of any duty allowed to be utilised towards payment of
excise duty on
final products; failure to supply any information which he is required by the
rules made under the Act to supply; attempts to commit, or abets the commission
of any of the offences mentioned in clauses (a) and (b) of the section. Section
13 of the Act, which provides for 'Power to arrest' lays down that any
Central Excise Officer not below
the rank of Inspector of
Central Excise may, with the prior
approval of the Commissioner of
Central Excise, arrest any person
whom he has reason to believe to be liable to punishment under the Act or the
rules made thereunder. Section 14 which provides for "Power to summon persons to
give evidence and produce documents in inquiries under the Act" reads as under
:
14. Power to summon persons to give evidence and produce documents in
inquiries under this Act. - (1) Any
Central Excise Officer duly
empowered by the
Central Government in this
behalf 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 for any of the purposes of this Act. A summons to produce documents or
other things 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.
(2) 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
exemptions under Sections 132 and 133 of the Code of Civil Procedure, 1908 (5 of
1908) shall be applicable to requisitions of attendance under this
section.
(3) 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, 1860 (45 of I860).
Section 15 of the Act which
provides for '
Officers required
to assist
Central
Excise Officers' lays down
that all
officers
of
Police and
Customs and all
officers
of the Government engaged in the collection of land revenue, and all village
officers
are hereby empowered and required to assist the
Central Excise Officers in the
execution of the Act. Section 18 which provides for 'Searches and arrests how to
be made' lays down that all searches made under the Act or any rules made
thereunder and all arrests made under the Act shall be carried out in accordance
with the provisions of the Code of Criminal Procedure, 1898 relating
respectively to searches and arrests made under that Code. Section 19 lays down
that every person arrested under the Act shall be forwarded without delay to the
nearest
Central
Excise Officer empowered
to send person so arrested to a Magistrate or, if there is no such
Central Excise Officer within a
reasonable distance to the
officer
in charge of the nearest
police station.
Section 20 which provides for the 'Procedure to be followed by
officer-in-charge
of
police station'
lays down that the
officer-in-charge
of a
police station to
whom a person is forwarded under section 19 shall either admit him to bail to
appear before the Magistrate having jurisdiction, or in default forward him in
custody to such Magistrate. Section 21 of the Act which provides for 'Inquiry
how to be made by
Central Excise Officers against
arrested persons forwarded to them under section 19' reads thus:
21.
Inquiry how to be made by
Central Excise Officers against
arrested persons forwarded to them under Section 19. - (1) When any person is
forwarded under Section 19 to a
Central Excise Officer empowered
to send persons so arrested to a Magistrate, the
Central Excise Officer shall
proceed to inquire into the charge against him.
(2) For this purpose the
Central Excise Officer may
exercise the same powers and shall be subject to the same provisions as the
officer-in-charge
of a
police station may
exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of
1898) 1, when investigating a cognizable case :
Provided that
-
(a) if the
Central Excise Officer is of
opinion that there is sufficient evidence or reasonable ground of suspicion
against the accused person, he shall either admit him to bail to appear before a
Magistrate having jurisdiction in the case, or forward him in custody to such
Magistrate;
(b) if it appears to the
Central Excise Officer that there
is not sufficient evidence or reasonable ground of suspicion against the accused
person, he shall release the accused person on his executing a bond, with or
without sureties as the
Central Excise Officer may direct,
to appear, if and when so required, before the Magistrate having jurisdiction,
and shall make a full report of all the particulars of the case to his official
superior.
These sections clearly show that the powers of arrest and
search conferred on
Central Excise Officers are really
in support of their main function of levy and collection of duty on exported
goods.
18. Similarly, under the Customs Act also, the powers of
Customs
Officers are for
the purpose of checking the smuggling of goods and the due realization of
customs duty to determine the action to be taken in the interests of the revenue
of the country by way of confiscation of goods on which no duty has been paid
and by imposing penalties and fine. The powers of Customs
Officers are really
not for the purpose of effective prevention and detection of crime in order to
maintain law and order which the
police officers
enjoy. Since the provisions of the Customs Act are similar to the provisions of
the
Central Excise Act and various
decisions of the Supreme Court touching the issue in question are rendered in
the context of the provisions of the Customs Act, it would be germane to refer
to the provisions of Section 104 of the Customs Act in the context of the
relevant provisions of the
Central Excise Act.
Section
104 of the Customs Act reads as under :
104. Power to arrest. - (1) If an
officer
of customs empowered in this behalf by general or special order of the
Commissioner of Customs has reason to believe that any person in India or within
the Indian customs waters has been guilty of an offence punishable under Section
135, he may arrest such person and shall, as soon as may be, inform him of the
grounds for such arrest.
(2) Every person arrested under sub-section (1)
shall, without unnecessary delay, be taken to a magistrate.
(3) Where an
officer
of customs has arrested any person under sub-section (1), he shall, for purpose
of releasing such person on bail or otherwise, have the same powers and be
subject to the same provisions as the
officer-in-charge
of a
police station has
and is subject to under the Code of Criminal Procedure, 1898 (5 of
1898).
(4) Notwithstanding anything contained in the Code of Criminal
Procedure, 1898, an offence under this Act, shall not be cognizable.
On a
conjoint reading of Section 104 of the Customs Act and the provisions of the
Central Excise Act/referred to
hereinabove, it is apparent that sub-section (1) of Section 104 is similarly
worded to Section 13 of the
Central Excise Act, except that
the same does not provide for informing the person arrested of the grounds for
such arrest. (Insofar as the
Central Excise Act is concerned,
this is taken care of by Section 50 of the Code of Criminal Procedure which is
applicable to arrests made under the Act in view of the provisions of Section 18
thereof.) The provisions of sub-section (2) of Section 104 are similar to
Section 19 of the
Central Excise Act. Sub-section
(3) of Section 104 is similar to sub-sections (1) and (2) of Section 21 of the
Central Excise Act. Sub-section
(4) of Section 104 is similarly worded to sub-section (1) of Section 9A of the
Central Excise Act.
19.
The law laid down by the Supreme Court interpreting the above referred
provisions of law may now be examined.
20. In State of Punjab v.
Barkat Ram, (1962) 3 SCR 338 the Supreme Court while considering the question
whether a Customs
Officer, either
under the Land Customs Act, 1924 or under the Sea Customs Act, 1878 is a
police officer
within the meaning of that expression in Section 25 of the Evidence Act, held
that the powers of Customs
Officers are really
not for the purpose of effective prevention and detection of crime in order to
maintain law and order which the
police officers
enjoy. Their powers are for the purpose of checking 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.
21.
In Badaku Joti v. State of Mysore, AIR 1966 SC 1746 = 1978 (002) ELT (J323)
(S.C.) the Supreme Court after considering the provisions of Sections 9,13,18
and 19 of the
Central Excise Act held that the
sections clearly show that the main purpose of the Act is to levy and collect
excise duties and
Central Excise Officers have been
appointed thereunder for this main purpose. In order that they may carry out
their duties in this behalf, powers have been conferred on them to see that duty
is not evaded and persons guilty of evasion of duty are brought to book. Section
9 of the Act provides for punishment which may extend to imprisonment upto 6
months or to fine upto Rs. 2000 or both where a person (a) contravenes any of
the provisions of a notification issued under Section 6 or of Section 8, or of a
rule made under clause (iii) of sub-section (2) of Section 37; (b) evades the
payment of any duty payable under the Act; (c) fails to Supply any information
which he is required by rules made under the Act to supply or supplies false
information; and (d) attempts to commit or abets the commission of any of the
offences mentioned in clauses (a) and (b) above. Under Section 13 of the Act,
any
Central Excise Officer duly
empowered by the
Central Government in this
behalf may arrest any person whom he has reason to believe to be liable to
punishment under the Act. Section 18 lays down that all searches made under the
Act or any rules made thereunder and all arrests made under the Act shall be
carried out in accordance with the provisions of the Code of Criminal Procedure,
1898 relating respectively to searches and arrests made under that Code. Section
19 lays down that every person arrested under the Act shall be forwarded without
delay to the nearest
Central Excise Officer empowered
to send persons so arrested to a Magistrate, or, if there is no such
Central Excise Officer within a
reasonable distance, to the
officer
in charge of the nearest
police station.
These sections clearly show that the powers of arrest and search conferred on
Central Excise Officers are really
in support of their main function of levy and collection of duty on excisable
goods.
While considering the provisions of Section 21 of the
Central Excise Act, the Supreme
Court held thus :
It is urged that under sub-section (2) of Section 21 a
Central Excise Officer under the
Act has all the powers of an
officer
incharge of a
police station
under Chapter XTV of the Code of Criminal Procedure and therefore he must be
deemed to be a
police officer
within the meaning of those words in Section 25 of the Evidence Act. It is true
that sub-section (2) confers on the
Central Excise Officer under the
Act the same powers as an
officer
incharge of a
police station has
when investigating a cognizable case; but this power is conferred for the
purpose of sub-section (1) which gives power to a
Central Excise Officer to whom any
arrested person is forwarded to inquire into the charge against him. Thus under
Section 21 it is the duty of the
Central Excise Officer to whom an
arrested person is forwarded to inquire into the charge made against such
person. Further under proviso (a) to sub-section (2) of Section 21 if the
Central Excise Officer is of
opinion that there is sufficient "evidence or reasonable ground of suspicion
against the accused person, he shall either admit him to bail to appear before a
Magistrate having jurisdiction in the case, or forward him in custody to such
Magistrate. It does not however appear that a
Central Excise Officer under the
Act has power to submit a charge-sheet under Section 173 of the Code of Criminal
Procedure. Under Section 190 of the Code of Criminal Procedure a Magistrate can
take cognizance of any offence either (a) upon receiving a complaint of facts
which constitute such offence, or (b) upon a report in writing of such facts
made by any
police officer,
or (c) upon information received from any person other than a
police officer,
or upon his own knowledge or suspicion, that such offence has been committed. A
police officer
for purposes of clause (b) above can in our opinion only be a
police officer
properly so-called as the scheme of the Code of Criminal Procedure shows and it
seems therefore that a
Central Excise Officer will have
to make a complaint under clause (a) above if he wants the Magistrate to take
cognizance of an offence, for example, under Section 9 of the Act. Thus though
under subsection (2) of Section 21 the
Central Excise Officer under the
Act has the powers of an
officer
incharge of a
police station when
investigating a cognizable case, that is for the purpose of his inquiry under
sub-section (1) of Section 21. Section 21 is in terms different from Section 78
(3) of the Bihar and Orissa
Excise Act, 1915 which
came to be considered in Raja Ram Jaiswal case 4 and which provided in terms
that "for the purposes of Section 156 of the Code of Criminal Procedure, 1898,
the area to which an
excise officer
empowered under Section 77, sub-section (2), is appointed shall be deemed to be
a
police-station, and
such
officer
shall be deemed to be the
officer
incharge of such station". It cannot therefore be said that the provision in
Section 21 is on par with the provision in Section 78 (3) of the Bihar and
Orissa
Excise Act.
All that Section 21 provides is that for the purpose of his enquiry, a
Central Excise Officer shall have
the powers of an
officer
incharge of a
police station when
investigating a cognizable case. But even so it appears that these powers do not
include the power to submit a charge-sheet under Section 173 of the Code of
Criminal Procedure for unlike the Bihar and Orissa
Excise Act, The
Central Excise Officer is not
deemed to be an
officer
incharge of a
police
station.
10. It has been urged before us that if we consider Section 21
in the setting of Section 14 of the Act, it would become clear that the enquiry
contemplated under Section 21(1) is in substance different from investigation
pure and simple into an offence under the Code of Criminal Procedure. It is not
necessary to decide whether the enquiry under Section 14 must also include
enquiry mentioned in Section 21 of the Act. Apart from this argument we are of
the opinion that mere conferment of powers of investigation into criminal
offences under Section 9 of the Act does not make the
Central Excise Officer a
police officer
even in the broader view mentioned above. Otherwise any person entrusted with
investigation under Section 202 of the Code of Criminal Procedure would become a
police officer.
22.
In Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940 =
1968(10)LCX0002 Eq
1999 (110) ELT 0324 (S.C.) the Supreme Court was of the view that the
admissibility of statements recorded by a Customs
Officer under
Section 171-A of the Sea Customs Act, 1878 Would depend upon the determination
of the question whether the statements when made were inadmissible under Section
25 of the Evidence Act, and Article 20(3) of the Constitution. The Court held
thus :
5. 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 with
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 (Section
169); to screen or X-ray the body of a person for detecting secreted goods
(Section 170-A); to arrest a person against whom a reasonable suspicion exists
that he has been guilty of an offence under the Act (Section 173); to obtain a
search warrant from a Magistrate to search any place within the local limits of
the jurisdiction of such Magistrate (Section 172); to collect information by
summoning persons to give evidence and produce documents (Section 171-A); and to
adjudge confiscation under Section 182. He may exercise these powers for
preventing smuggling of goods dutiable or 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, the power to search or obtain a search 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
Sections 193 and 228 of the Indian Penal Code the enquiry made by a Customs
Officer is a
judicial proceeding. An order made by him is appealable to the Chief Customs
Authority under Section 188 and against that order revisional jurisdiction may
be exercised by the Chief Customs Authority and also by the
Central Government at the
instance of any 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 section
173 of the Code of Criminal Procedure. He can only make a complaint in writing
before a competent Magistrate.
The Supreme Court found no substance in
the 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 Section 171-A of the Sea Customs Act is
inadmissible. The Court held thus :
11. By Article 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 State of Bombay v. Kathi Kalu
Oghad observed at p. 37:
To be a witness' means imparting knowledge in
respect of relevant facts by an oral statement or a statement in writing, made
or given in Court or otherwise.
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.
But in order that the guarantee
against testimonial compulsion incorporated in Article 20(3) may be claimed by a
person it has to be established that when he made the statement sought to be
tendered in evidence against him, he was a person accused of an offence. Under
Section 171-A of the Sea Customs Act, a Customs
Officer has power
in an enquiry in connection with the smuggling of goods to summon any person
whose attendance he considers necessary, to give evidence or to produce a
document or any other thing, and by clause (3) the person so summoned is bound
to state the truth upon any subject respecting which he is examined or makes
statements and to produce such documents and other things as may be required.
The expression 'any person' includes a person who is suspected or believed to be
concerned in the smuggling of goods. But a person arrested by a Customs
Officer because he
is found in possession of smuggled goods or on suspicion that he is concerned in
smuggling is not when called upon 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 Article 20(3) of the Constitution. The steps taken by 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 provision 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 of 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. 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
Officer under
Section 167 of the Sea Customs Act and was subsequently prosecuted before a
Magistrate for offences under the Foreign Exchange Regulation Act, 1947, could
not plead the protection of Article 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 Article 20(2) of
the Constitution and the prosecution was not barred.
(Emphasis
supplied)
The Court observed that in two earlier cases in M.P. Sharma
case [1978 (002) ELT J287 (S.C.)] and Raja Narayanlal Bansilal case the Supreme
Court in describing a person accused used the expression 'against whom a formal
accusation had been made', and in Kathi Kalu Oghad case the Court used the
expression-'the person accused must have stood in the character of an accused
person'. The Supreme Court held that the Court in Kathi Kalu Oghad case has not
set out a different test for determining the stage when a person may be said to
be accused of an offence and that in Kathi Kalu Oghad case 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 an accused person at the time when he makes
the statement. The Court was of the view that 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 Customs
Officer arrests a
person and informs that person of the grounds of his arrest, (which he is bound
to do under Article 22(1) of the Constitution) for the purposes 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. (Emphasis, supplied)
The
Court also held :
26. Section 104(1) only prescribes the conditions in
which the power of arrest may be exercised. The
officer
must have reason to believe that a person has been guilty of an offence
punishable under Section 135, otherwise he cannot arrest such person. But by
informing such 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 inquiry under Sections 107 and
108 of the Act with a view to adjudging confiscation of dutiable or prohibited
goods and imposing penalties. At that stage there is no question of the offender
against the Customs Act being charged before a Magistrate. Ordinarily after
adjudging penalty and confiscation of goods or without doing so, if the Customs
Officer forms an
opinion that the offender should be prosecuted he may prefer a complaint in the
manner provided under Section 137 with the sanction of the Collector of Customs
and until a complaint is so filed the person against whom an inquiry is
commenced under the Customs Act does not stand in the character of a person
accused of an offence under Section 135.
27. Section 167 of the Sea
Customs Act, 1878, contained a large number of clauses which described different
kinds of infractions and different penalties or punishments liable to be imposed
in respect of those infractions. Under the Customs Act of 1962 the Customs
Officer is
authorised to confiscate goods improperly imported into India and to impose
penalties in cases contemplated by Sections 112 and 113. But on that account the
basic scheme of the Sea Customs Act, 1878, is not altered. The Customs
Officer even under
the Act of 1962 continues to remain a revenue
officer
primarily concerned with the detection of smuggling and enforcement and levy of
proper duties and prevention of entry into India of dutiable goods without
payment of duty and of goods of which the entry is prohibited. He does not on
that account become either a
police officer,
nor does the information conveyed by him, when the person guilty of an
infraction of the law is arrested, amount to making of an accusation of an
offence against the person so guilty of infraction. Even under the Act of 1962
formal accusation can only be deemed to be made when a complaint is made before
a Magistrate competent to try the person guilty of the infraction under Sections
132, 133, 134 and 135 of the Act. Any statement made under Sections 107 and 108
of the Customs Act by a person against whom an enquiry is made by a Customs
Officer is not a
statement made by a person accused of an offence.
23. In Illias v.
Collector of Customs, (1969) 2 SCR 613 =
1968(10)LCX0006 Eq
1983 (013) ELT 1427 (S.C.) the Supreme Court summarized the comparison made
between the duties and powers of
police officers
and customs
officers
made in Barkat Ram case as follows:
(1) The
police is the
instrument for the prevention and detection of crime which can be said to be the
main object of having the
police. The powers
of customs
officers
are really not for such purpose and are meant for checking the smuggling of
goods and due realization of customs duties and for determining the action to be
taken in the interest of the revenue country by way of confiscation of goods on
which no duty had been paid and by imposing penalties and fines.
(2) The
customs staff has
merely to make a
report in relation to offences which are to be dealt with by a Magistrate. The
customs
officer,
therefore, is not primarily concerned with the detection and punishment of crime
but he is
merely interested
in the detection and prevention of smuggling of goods and safeguarding the
recovery of customs duties.
(3) The powers of search etc. conferred on
the customs
officers
are of a limited character and have a limited object of safeguarding the
revenues of the State and the statute itself refers to
police officers
in contradiction to customs
officers;
(4)
If a customs
officer
takes evidence under Section 171-A and there is an admission of guilt, it will
be too much to say that that statement is a confession to a
police officer
as a
police officer
never acts judicially and no proceeding before him is deemed to be a judicial
proceeding for the purpose of Sections 193 and 228 of the Indian Penal Code or
for any other purpose.
24. A Division Bench of this Court in N.H.
Dave, Inspector of Customs v. Mohmed Akhtar,
1982(08)LCX0010 Eq
1984 (015) ELT 0353 (Guj.) while dealing with the question as regards the manner
in which a person arrested under the provisions of section 104 of the Customs
Act is required to be dealt with by the Magistrate before whom he is taken in
obedience to the mandate contained in Section 104(2) adverted to the following
propositions which emerge from the provisions of the Act and the Code, namely
:-
(1) That an offence under Section 135 of the Customs Act is a
non-cognizable offence, that is to say it is an offence which cannot be
investigated by the
police;
(2)
The Code of Criminal Procedure is applicable mutatis mutandis to proceedings in
relation to offences other than an offence under Indian Penal Code to the extent
specified in sub-section (2) of Section 4 of the Code and that the Code would be
applicable to this extent even in respect of an offence under Section 135 of the
Customs Act. The Court referred to the provision contained in Part II of the
First Schedule to the Code and more particularly to the first and second entries
therein. The Court found that by virtue of the first entry in respect of
offences against other laws, that is to say, laws other than Indian Penal Code,
an offence punishable with imprisonment for a period of three years and upwards
but not exceeding seven years is also classified as non-bailable. So also by
virtue of entry No. 2 an offence punishable with imprisonment for a period of
three years and upwards but not exceeding seven years is also classified as
non-bailable. An offence under Section 135 of the Customs Act is in any event
punishable with imprisonment of three years and upwards but not exceeding three
years. Regardless of the value of goods in any event the offence is punishable
with imprisonment for three years. Such being the position the offence is
non-bailable.
The Court held that sub-section (2) of Section 4 provides
that all offences under any law other than the Indian Penal Code shall be
investigated, inquired into, tried and otherwise dealt with according to the
same provisions (that is to say provisions of the Code of Criminal Procedure),
subject to two limitations. In case there is some enactment regulating the
manner or place of investigating, inquiring into, trying or otherwise dealing
with such offences the provisions contained in the said enactment would prevail
against the corresponding provisions of the Code. In the matter of the
provisions of the Code of Criminal Procedure as to bails and bonds embodied in
Chapter XXXIII of the Code, the provisions would be attracted even in regard to
offences under the Customs Act by virtue of sub-section (2) of Section 4 of the
Code. The Court was of the view that a person arrested under Section 104(1) of
the Customs Act would certainly fall within the orbit of the expression
'suspected of the commission of any non-bailable offence'. The Court held that a
person arrested by a customs
officer
under Section 104 would be a person suspected of the commission of such an
offence inasmuch as the arrest itself is made when the
officer
of customs has reason to believe that such a person has been guilty of an
offence punishable under Section 135. Thus, Section 437(1) in terms is
applicable when any person arrested under Section 104 by an
officer
of customs is brought before the Magistrate.
25. In Directorate of
Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 =
1994(01)LCX0057 Eq
1994 (070) ELT 0012 (S.C.) the Supreme Court was inter alia dealing with the
issue as to whether the registration of a case and the entries in the diary
relating to that case as prescribed by the Court are sine qua non for a
Magistrate taking into custody of a person when that person appears or
surrenders or is brought before the Magistrate and whether that person should
have assimilated the characteristic of 'an accused of an offence' at that stage
itself within the meaning of sub-section (1) of Section 167 or sub-section (1)
of Section 437 of the Code.
The Court after considering its decision in
Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, wherein it was held
that "The filing of a first information report is not a condition precedent to
the exercise of the powers under Section 438 of the Code. The imminence of a
likely arrest founded on a reasonable belief can be shown to exist even if an
FIR is not yet filed" held that the dictum laid down in that case indicates that
the registration of a case and the entries of the case diary are not necessary
for entertaining an application for grant of anticipatory bail, but the mere
imminence of a likely arrest on a reasonable belief on an accusation of having
committed a non-bailable offence will be sufficient to invoke that provision. In
the backdrop of the above referred decision, the Court held that a Magistrate
can himself arrest or order any person to arrest any offender if that offender
has committed an offence in his presence and within his local jurisdiction or on
his appearance or surrender or is produced before him and take that person
(offender) into his custody subject to the bail provisions. If a case is
registered against an offender arrested by the Magistrate and a follow-up
investigation is initiated or if an investigation has emanated qua the
accusations levelled against the person appearing or surrendering or being
brought before the Magistrate, the Magistrate can in exercise of the powers
conferred on him under Section 167(2) keep that offender or person under
judicial custody in case the Magistrate is not inclined to admit that offender
or person to bail. The Court held that the above deliberation leads to a
derivation that to invoke Section 167 (1), it is not an indispensable
pre-requisite condition that in all circumstances, the arrest should have been
effected only by a
police officer
and none else and that there must necessarily be records of entries of a case
diary. Therefore, it necessarily follows that a mere production of an arrestee
before a competent Magistrate by an authorised
officer
or an
officer
empowered to arrest (notwithstanding the fact that he is not a
police officer
in its stricto sensu) on a reasonable belief that the arrestee 'has been guilty
of an offence punishable' under the provisions of the special Act is sufficient
for the Magistrate to take that person into his custody on his being satisfied
that the three preliminary conditions, namely (1) the arresting
officer
is legally competent to make the arrest; (2) that the particulars of the offence
or the accusation for which the person is arrested or other grounds for such
arrest do exist and are well-founded and; (3) that the provisions of the Special
Act in regard to the arrest of the person and the production of the arrestee
serve the purpose of Section 167(1) of the Code. The Court also held that
Section 35 of FERA and Section 104 of the Customs Act which confer power on the
prescribed
officer
to effect the arrest deploy only the word 'person' and not 'accused' or 'accused
person' or 'accused of any offence'. In fact, the word 'accused' appears only in
the penal provisions of the Special Acts namely, sub-section (4) of Section 56
of FERA and sub-section (3) of Section 135 of the Customs Act while explaining
as to what would be the special and adequate reasons for awarding the sentence
of imprisonment for a sub-minimum period, though sub-sections (1) to (3) of
Section 56 of FERA and sub-sections (1) and (2) of Section 135 of the Customs
Act use the expression 'person' who becomes punishable of conviction under the
penal provisions by the Court trying the offence. The Court referred to the
decisions of the Madras High Court in Re Kara Ayyappa, (1910) 11 Cri. L.J. 251.
the decision of an eight-Judge Bench of the Supreme Court in M.P. Sharma v.
Satish Chandra, District Magistrate, Delhi, AIR 1954 S.C. 300 = 1978 (002) ELT
(J 287) (S.C.), a decision of a Constitutional Bench of the Supreme Court in
Raja Nara-yanlal Bansilal v. Maneck Phiroz Mistry, AIR 1961 SC 29 as well as
decision of an eleven-Judge Bench of the Supreme Court in Stale of Bombay v.
Kathi Kalu Oghad, AIR 51961 S.C. 1808, and held that the essence of the said
decisions B that to bring a person within the meaning of 'accused of any
offence', that person must assimilate the character of an 'accused person' in
the sense that he must be; accused of any offence. The Court thought it apposite
to note that clauses (1) to (3) of Article 22 which speak of a 'person arrested'
use only the word 'person'. Article 22(2) states that 'every person who is
arrested and detained in custody...'. A similar expression is used in Section
167(1) of the Code reading, 'Whenever any person is arrested and detained in
custody,....'. Thus, while referring to a person arrested and detained neither
Article 22 nor Section 167 employs the expression 'accused of any
offence'.
Discussing the powers of an authorised
officer
of Enforcement or Customs, the Court held thus :-
113. Though an
authorised
officer
of Enforcement or Customs is not undertaking an investigation as contemplated
under Chapter XII of the Code, yet those
officers
are enjoying some analogous powers such as arrest, seizures, interrogation etc.
Besides, a statutory duty is enjoined, on them to inform the arrestee of the
grounds for such arrest as contemplated under Article 22(1) of the Constitution
and Section 50 of the Code. Therefore, they have necessarily to make records of
their statutory functions showing the name of the informant, as well as the name
of the person who violated any other provision of the Code and who has been
guilty of an offence punishable under the Act, nature of information received by
them, time of the arrest, seizure of the contraband if any and the statements
recorded during the course of the detection
114. Apart from those two
special Acts under consideration, there are various
Central Acts containing
provisions of prevention of offences enumerated therein and also for enforcement
of the said provisions. Certain provisions of the
Central Acts which we
would like to give below by way of illustration in a tabular form showing the
powers vested and the duties cast on the
officers
concerned will show that those
officers
enjoy certain powers during the course of any investigation or inquiry or
proceeding under the special Acts concerned though not in strict sense of an
investigation under Chapter XII of the Code as undertaken by
police officers
including the filing of a
police report under
Section 173(2) of the Code.
