Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (crl.) 1080 of 2001
PETITIONER:
GULAM HUSSAIN SHAIKH CHOUGULE
Vs.
RESPONDENT:
S.REYNOLDS, SUPTD. OF CUSTOMS, MARMGOA
DATE OF JUDGMENT: 19/10/2001
BENCH:
D.P. Mohapatra K.G. Balakrishnan
JUDGMENT:
D.P.MOHAPATRA,J.
Leave granted.
Faced with dismissal of the revision application
filed by him, challenging the judgment passed by the
Appellate Court dismissing his appeal, the accused Gulam
Hussain Shaikh Chougule has filed this appeal by special
leave assailing the judgment of the Courts below convicting
him of the offence under section 135 of the Customs Act,
1962 (for short the Act) and sentencing him to undergo
imprisonment for three years and to pay a fine of Rs.25,000/-
in default to undergo six months simple imprisonment
further.
The gist of the prosecution case is that 207 silver
ingots weighing approximately 30 kgs. valued at
Rs.4,22,48,225/- were clandestinely brought into Goa in an
Arab Dhow and the same were to be transported in the
trawler Gramdev Navdurga (for short the trawler). When
the said trawler was intercepted at Aguada Light House by
the Officers of the Customs Department on 4th of October,
1988 the appellant was found to be present on the trawler.
The investigation revealed that the trawler was stationed on
the port for being used to carry and transport the contraband
silver ingots.
The respondent who was a Customs Officer
issued a notice to the appellant on 5th October, 1988 and
recorded his statement under section 108 of the Act.
Subsequently on 6th October, 1988 the appellant was
arrested and produced before the Magistrate on 7th October,
1988. Thereafter on 28th February, 1989 the respondent
filed a complaint under section 135 of the Customs Act in the
Court of the Chief Judicial Magistrate, Panaji. The trial court
by judgment dated 18th February, 1995 convicted the
appellant and others for having committed the offence under
section 135 of the Customs Act and sentenced him to
undergo 7 years rigorous imprisonment and to pay a fine of
Rs.50,000/- and in default to suffer rigorous imprisonment for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
one year. The Additional Sessions Judge, Mapusa by the
judgment dated 28.12.1999 maintained the conviction of the
appellant but reduced the sentence to three years rigorous
imprisonment with a fine of Rs.25,000/- in default to undergo
six months simple imprisonment further. The appellant filed
the Criminal Revision Application No.6 of 2000 assailing the
judgment/order of the Appellate Court. The High Court by
order dated 28.4.2000 dismissed the Criminal Revision
Application. The said order is under challenge in the present
appeal.
In paragraph 4 of the judgment under challenge
the High Court has formulated the three points urged by the
counsel appearing for the appellant, namely :
1. The Customs Authorities while recording the
statement under section 108 of the Customs
Act, had not followed the safeguards provided
under Section 164 Criminal Procedure Code;
2. The applicants in Criminal Revision
Application No.4, 5 and 6/2000 had been
detained by the Customs Authorities from 4th
October, 1988 to 7th October, 1988, which
amounts to arrest of the said applicants and
the statements of these applicants were
recorded under Section 108 of the Customs
Act during this period of detention after giving
threats and exercising duress. In this
connection it is pointed out that the medical
papers of the applicants show that they were
assaulted and, as such, the statements of
these applicants recorded under section 108
of the Customs Act, cannot be said to be
voluntary; and
3. No link has been established between the
Arab dhow and the said trawler.
The High Court, on examination of the first point
which raised essentially a question of law, rejected the
contention of the applicant referring to different decisions of
this Court in Union Textile Traders vs. Shree Bhawani
Cotton Mills Ltd. (AIR 1970 SC 1940); Harbansingh Sardar
Lenasingh and another vs. The State of Maharashtra & Anr.
(AIR 1972 SC 1224); K.T.M.S. Mohd. and another etc.etc.
vs. Union of India (1992 (3) SCC 178), and held that the
provisions of section 164 of the Criminal Procedure Code
are not applicable to the confessional statement of the
appellant recorded by the Customs Officer under section 108
of the Act and therefore rejected the contentions raised on
behalf of the appellant that the safeguards prescribed under
section 164 Criminal Procedure Code having not been
complied by the Customs Officer the statement is
inadmissible in evidence. The High Court held that a
statement recorded under section 108 of the Act is neither
hit by section 164 Criminal Procedure Code nor section 25
of the Evidence Act.
Regarding the other two points urged by the
counsel for the appellant, the High Court did not feel
persuaded to interfere with the concurrent findings of fact
rejecting the contention that the statement recorded under
section 108 of the Act was not voluntary one having been
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
obtained under pressure of coercion and threat and physical
assault on the appellant. The High Court also rejected the
third point that the prosecution has failed to establish any
connection between the Dhow and the trawler on which the
appellant and others were present.
The learned counsel for the appellant reiterated
the contentions raised before the High Court that the
safeguards prescribed under section 164 Criminal Procedure
Code for recording the confessional statement of an accused
have not been followed by the Customs Officer.
Section 108 of the Customs Act, 1962 reads
as follows:
108 Power to summon persons to give
evidence and produce documents (1) Any
gazetted officer of custom shall have power
to summon any person whose attendance
he considers necessary either to give
evidence or to produce a document or any
other thing in any inquiry which such officer
is making in connection with the smuggling
of any goods.
(2) 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 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 produce such documents
and other things as may be required.
Provided that the exemption under section
132 of the Code of Civil Procedure, 1908 (5
of 1908), shall be applicable to any
requisition for attendance under this section.
(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 (45 of 1860).
In the case of Assistant Collector of Central
Excise, Rajamundry vs. Duncan Agro Industries Ltd. & Ors.,
2000(7) SCC 53, this Court held that the provision in section
164 of Criminal Procedure Code empowers a Judicial
Magistrate to record any confession or statement made to
him during the course of investigation. The power conferred
by Section 164, Criminal Procedure Code to record
confessions and statements can be exercised only by a
Judicial Magistrate. Even a police officer on whom power of
a Magistrate has been conferred is forbidden from recording
a confession. Sub-sections (2) and (4) deal with procedure
which such Magistrate has to follow while recording
inculpatory statements made by persons. Referring to
section 108 of the Customs Act, this Court observed :
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
Section 108 of the Customs Act does not
contemplate any magisterial intervention.
The power under the said section is
intended to be exercised by a gazetted
officer of the Customs Department. Sub-
section (3) enjoins on the person
summoned by the officer to state the truth
upon any subject respecting which he is
examined. He is not excused from
speaking the truth on the premise that such
statement could be used against him. The
said requirement is included in the
provision for the purpose of enabling the
gazetted officer to elicit the truth from the
person interrogated. There is no
involvement of the Magistrate at that stage.
The entire idea behind the provision is that
the gazetted officer questioning the
person must gather all the truth concerning
the episode. If the statement so extracted
is untrue its utility for the officer gets lost.
.....The ban contained in section 25 of
the Evidence Act is an absolute ban. But it
must be remembered that there is no ban
in regard to the confession made to any
person other than a police officer, except
when such confession was made while he
is in police custody. The inculpatory
statement made by any person under
Section 108 is to non-police personnel and
hence it has no tinge of inadmissibility in
evidence if it was made when the person
concerned was not then in police custody.
Nonetheless the caution contained in law is
that such a statement should be scrutinised
by the court in the same manner as
confession made by an accused person to
any non-police personnel. The court has to
be satisfied in such cases, that any
inculpatory statement made by an accused
person to a gazetted officer must also pass
the tests prescribed in Section 24 of the
Evidence Act. If such a statement is
impaired by any of the vitiating premises
enumerated in Section 24 that statement
becomes useless in any criminal
proceedings.
In the judgment this Court quoted with
approval the following observations made by
Hidayatullah, J. (as he then was) in Haroon Haji Abdulla
vs. State of Maharashtra ((1968) 2 SCR 641):
......These statements are not confessions
recorded by a Magistrate under Section
164 of the Code of Criminal Procedure but
are statements made in answer to a notice
under Section 171-A of the Sea Customs
Act. As they are not made subject to the
safeguards under which confessions are
recorded by Magistrates they must be
specially scrutinised to finding out if they
were made under threat or promise from
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
someone in authority. If after such scrutiny
they are considered to be voluntary, they
may be received against the maker and in
the same way as confessions are received,
also against a co-accused jointly tried with
him.
Reference was made to the decision in
Romesh Chandra Mehta vs. State of West Bengal ( 1969)
2 SCR 461) wherein it was held:
When an inquiry is being conducted under
Section 108 of the Customs Act, and a
statement is given by a person against
whom the inquiry is being held it is not a
statement made by a person accused of an
offence and the person who gives the
statement does not stand in the character
of an accused person.
This Court also referred the case in Percy
Rustomji Basta vs. State of Maharashtra, (1971) 1 SCC 847,
and also the three Judge Bench decision in Harbansingh
Sardar Lenasingh & Anr. vs. State of Maharashtra, (supra);
Veera Ibrahim v. The State of Maharashtra, (1976) 2 SCC
302 and Poolpandi v. Supdt., Central Excise ,(1992) 3 SCC
259).
The conclusions of the Court were summarised
as follows:
We hold that a statement recorded by
Customs Officers under Section 108 of the
Customs Act is admissible in evidence. The
court has to test whether the inculpating
portions were made voluntarily or whether it
is vitiated on account of any of the premises
envisaged in Section 24 of the Evidence
Act........
In view of the position of law enunciated by this
Court in the recent decision afore-mentioned with which we
are in respectful agreement, no exception can be taken
against the finding recorded by the High Court on the point.
Regarding section 24 of the Evidence Act the
case of the appellant was that since the confessional
statement was made under inducement and threat and
physical assault which, the High Court on examination,
declined to accept on the facts emerging from the evidence
in the case, there is no scope for this Court to interfere with
the order in that regard in exercise of jurisdiction under
Article 136 of the Constitution.
For the reasons discussed in the foregoing
paragraphs, it has to be held that the High Court rightly
rejected the contentions raised on behalf of the appellant on
that score. Thus the appeal, being devoid of merit, is
dismissed.
..J.
(D.P.Mohapatra)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
..J
(K.G.Balakrishnan)
Dated the 19th October, 2001