Full Judgment Text
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PETITIONER:
VEERA IBRAHIM
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT18/03/1976
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
UNTWALIA, N.L.
CITATION:
1976 AIR 1167 1976 SCR (3) 672
1976 SCC (2) 302
ACT:
Constitution of India, Art 20(3), conditions for
applicability of, whether enquiry is ‘accusation’ within the
meaning of-Evidence Act, S 24, when attracted-What amounts
to ‘confession’ under S. 24.
HEADNOTE:
A truck was seized with its content of contraband goods
for foreign make, on which no duty had been paid. The
appellant who was in charge of the goods, was arrested while
escaping from the truck and Rs. 2000/- were seized from him.
His statement was recorded under S. 108, Customs Act, 1962.
The appellant and the driver of the truck. were convicted by
the Trial Court under Ss. 135 (a) and 135 (b) of the Customs
Act. 1962, and S. 5 of the Imports & Exports (Control) Act,
1947. The High Court upheld their conviction under S. 135
(a) of the Customs Act, and acquitted them of the other
charges.
In appeal by leave granted under Art. 134(1) (c) of the
Constitution, the appellant contended before this Court that
his statement taken under S. 108, Customs Act, could not be
used against him; firstly, as it was hit by Art. 20(3) of
the Constitution on account of its having been taken while
he was already an ‘accused’ under S. 124, Bombay Police Act,
and secondly. it was barred under S. 24, Evidence Act, the
same being a confession obtained under compulsion of law. It
was also contended that in the absence of the requisite
notification under S. 123(2), Customs Act, the statutory
presumption under S. 123 could not be invoked by the
prosecution, and without the same, the facts of the case
were insufficient to establish an offence against the
appellant under S. 135, Customs Act.
Dismissing the appeal, the Court,
^
HELD: (1) To claim the benefit of the guarantee against
testimonial compulsion embodied in clause (3) of Art. 20, it
must be shown, firstly, that the person who made the
statement was ‘accused of any offence’, secondly, that he
made this statement under compulsion. Only a person against
whom a formal accusation relating to the commission of an
offence has been levelled would fall within its ambit.
[674C-D]
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R.C. Mehta v. State of West Bengal, [1969] 2 S.C.R.
461, applied.
(2) To attract the prohibition enacted in S. 24
Evidence Act, these facts must be established.
(i) that the statement in question is a
confession;
(ii) that such confession has been made by an
accused person;
(iii)that it has been made to a person in
authority;
(iv) that the confession has been obtained by
reason of any inducement threat or promise
proceeding from a person in authority.
(v) Such inducement, threat or promise, must have
reference to the charge against the accused
person;
(vi) The inducement, threat or promise must in the
opinion of the Court be sufficient to give
the accused person ground, which would appear
to him reasonable, for supposing that by
making it he would gain any advantage or
avoid any evil of temporal nature in
reference to the proceedings against him.
[676F-H, 677A]
673
(3) A statement in order to amount to a ‘confession’
must either admit in terms the offence, or at any rate
substantially all the facts which constitute the offence. An
admission of an incriminating fact, however grave, is not by
itself a confession. A statement which contains an
exculpatory assertion of some fact, which if true, would
negative the offence alleged, cannot amount to a
‘confession’. [677A-C]
Pakala Narayana v. R. 66 I. A. 66 Palvinder kaur v.
State of Punjab [1953] S.C.R. 94, Om Prakash v. State,
A.I.R. 1960 S.C. 409, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
234 of 1971.
From the Judgment and order dated the 26-3-71 of the
Bombay High Court at Bombay in Criminal Appeal No. 1434 of
1970.
K. R. Chaudhury and K. Rajendra Chaudhury for the
Appellant.
H. R. Khanna and M. N. Shroff for Respondent.
The Judgment of the Court was delivered by
SARKARIA, J.-Veera Ibrahim, appellant was accused No. 2
in the complaint filed by Assistant Collector of Customs,
Preventive Department, Bombay before the Chief Presidency
Magistrate for his prosecution along with one Abdul Umrao
Rauf, accused No. 1, in respect of offences under ss. 135(a)
and 135(b) of the Customs Act, 1962 and s. S of the Imports
and Exports (Control) Act 1947. The trial Magistrate
convicted both the accused on all the three charges and
sentenced them to two years rigorous imprisonment on each
count with a direction that the sentences would run
concurrently. Against that judgment, two separate appeals
were filed by the convicts in the Bombay High Court which
acquitted both the accused of the offences under s. 5 of the
Imports and Exports (Control) Act, 1947 and under s. 135(b)
of the Customs Act, but maintained their conviction on the
charge under s. 135(a) of that Act reducing the sentence to
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one years rigorous imprisonment, The High Court, however,
granted a certificate under Article 134(1) (c) of the
Constitution, on the basis of which, this appeal has been
filed.
The main question with reference to which the
certificate was granted by the High Court, was: whether s.
108 of the Customs Act, 1962 is ultra vires the provisions
of cl. (3) of Article 20 of the Constitution ? But Mr.
Chaudhry, appearing for the appellant, does not press this
question now before us.
The first contention canvassed by the Counsel is that
on the facts and circumstances of the case, the appellant’s
statement recorded under s. 108 of the Customs Act 1962, on
the foot of which the appellant has been convicted, was hit
by clause (3) of Article 20 because at the time of making
that statement, the appellant was "accused of any offence"
under s. 124 of the Bombay Police Act, and the statement was
obtained under compulsion of law. Stress has been placed on
the fact that the appellant was, in fact, arrested by the
police on a charge under s. 124 of the Bombay Police Act and
the goods were seized under a Panchnama, prepared by them in
the course of investigation. In this connection, reference
has been made to
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M. P. Sharma and Ors. v. Satish Chandra, District
Magistrate, Delhi and Ors.(1)
On the other hand, Mr. H. R. Khanna, appearing for the
respondent submits that the words "accused of any offence"
occurring in Art. 20(3) take in only that person against
whom a formal accusation of an offence has been levelled.
Two other conditions for the applicability of this Clause,
according to the Counsel, are: (a) that the testimony in
question had been obtained under compulsion, and (b) it
relates to the offence of which he stands formally accused.
These conditions, it is maintained, were not fulfilled in
the present case.
Clause (3) of Article 20 provides:
"No person accused of any offence shall be
compelled to be a witness against himself".
From an analysis of this clause, it is apparent that in
order to claim the benefit of the guarantee against
testimonial compulsion embodied in this clause, it must be
shown, firstly, that the person who made the statement was
"accused of any offence" secondly, that he made this
statement under compulsion. The phrase "accused of any
offence" has been the subject of several decisions of this
Court so that by now it is well settled that only 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 his prosecution, would fall within its ambit.
In R. C. Mehta v. State of West Bengal, this point came
up for consideration in the context of a statement recorded
by an officer of Customs in an enquiry under s. 171-A of the
Sea Customs Act. One of the contentions raised was, that a
person against whom such an enquiry is made is a ‘person
accused of an offence’, and on that account, he cannot be
compelled to be a witness against himself and the statement
obtained or evidence collected under the aforesaid provision
by the officer of Customs is inadmissible. This contention
was repelled. Shah J., speaking for the Court, made these
apposite observations:
"Under s. 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
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to produce a document or any other thing, and by cl.
(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
675
offence within the meaning of Art. 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 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 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".
After a survey of case law, the Court pointed out the
circumstances, the existence of which is ordinarily
necessary to clothe a person with the character of a "person
accused of an offence":
"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
Art. 221) 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 above-quoted observations are a complete answer to
the contention of the appellant. In the light of these
principles, it is clear that when the statement of the
appellant was recorded by the Customs officer under s. 108,
the appellant was not a person "accused of any offence"
under the Customs Act, 1962. An accusation which would stamp
him with the character of such a person was, levelled only
when the complaint was filed against him, by the Assistant
Collector of Customs complaining of the commission of
offences under s. 135(a) and s. 135(b) of the Customs Act.
True, that the appellant was arrested by the police on
December 12, 1967 on suspicion of having committed an
offence under s. 124, of the Bombay Police Act and a
Panchnama of the packages in the truck was also prepared.
But the factual ingredients of that offence are materially
different from those of an offence under the Customs Act.
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This will be apparent from a bare reading of s. 124 of the
Bombay Police Act, which provides :
"Whoever has in his possession or conveys in any
manner, or offers for sale or pawn, anything which
there is
676
reason to believe is stolen property or property
fraudulently obtained shall, if he fails to account for
such possession or to act to the satisfaction of the
Magistrate, on conviction, be punished with
imprisonment for a term (which may extend to one year
but shall not, except for reasons to be recorded in
writing, be less taken one month and shall also be
liable to the fine which may extend to five hundred
rupees).
Even in respect of that offence, the police did not
register any case or enter any F.I.R. which normally
furnishes a foundation for commencing a police
investigation. The police did not open the packages or
prepare inventories of the goods packed therein. Indeed, the
police appear to have dropped further proceedings. They did
not take any steps for prosecuting the appellant even for an
offence under the Bombay Police Act, 1951. They informed the
customs authorities, who opened the packages, inspected the
goods and on finding them contraband goods, seized them
under a Panchnama. The Customs authorities called the
appellant and his companion to the Customs House, took them
into custody, and after due compliance with the requirements
of law, the Inspector of Customs questioned the appellant
and recorded his statement under s. 108 of the Customs Act.
Under the circumstances it was manifest that at the time
when the Custom officer recorded the statement of the
appellant, the latter was not formally "accused of any
offence." The High Court was therefore right in holding that
the statement recorded by the Inspector of Customs was not
hit by Article 20(3) of the Constitution.
The next question to be considered is, whether this
statement was hit by s. 24 of the Evidence Act. The
contention is that this statement was obtained under
compulsion of law inasmuch as he was required to state the
truth under threat of prosecution for perjury.
For reasons that follow, we are unable to sustain this
contention.
To attract the prohibition enacted in s. 24, Evidence
Act, these facts must be established:
(i) that the statement in question is a
confession;
(ii) that such confession has been made by an
accused person;
(iii)that it has been made to a person in
authority;
(iv) that the confession has been obtained by
reason of any inducement, threat or promise
proceeding from a person in authority;
(v) such inducement, threat or promise, must have
reference to the charge against the accused
person;
(vi) the inducement, threat or promise must in the
opinion of the Court be sufficient to give
the accused person grounds, which would
appear to him reasonable, for
677
supposing that by making it he would gain any
advantage or avoid any evil of a temporal
nature in reference to the proceedings
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against him.
In the present case, facts (i), (iv) and (vi) have not
been established. Firstly, the statement in question is not
a "confession’ within the contemplation of s. 24. It is now
well-settled that a statement in order to amount to a
"confession" must either admit in terms the offence, or at
any rate substantially all the facts which constitute the
offence. An admission of an incriminating fact, howsoever
grave, is not by itself a confession. A statement which
contains an exculpatory assertion of some fact, which if
true, would negative the offence alleged, cannot amount to a
confession (see Pakala Narayana v. R.; Plavinder Kaur v.
State of Punjab; Om Prakash v. State.
A perusal of the statement Ex. I made by the appellant
before the Inspector of Customs would show that it contained
exculpatory matter. Therein, the deponent claimed that he
was not aware that the packages which were loaded in the
truck were contraband goods, and alleged that the goods were
not loaded under his instructions. The deponent claimed to
be an innocent traveller in the truck when he said: "I did
not ask Mullaji (driver) what goods were being loaded in his
lorry... Mullaji was only my friend and I was not aware of
any of his mala fide activities".
Moreover, the incriminating facts admitted in this
statement, do not, even if taken cumulatively amount to
admission of all the facts which constitute any offence. To
bring home an offence under s. 135 of the Customs Act, in
addition to the facts admitted in Ex. I, it had to be
established further that these goods were contraband goods.
For these reasons, it could be said beyond doubt, that
the statement Ex. 1 was not a "confession" within the
meaning of s. 24, Evidence Act.
Secondly, it has not been shown that the Customs
officer-though a person in authority-had offered any
inducement or held out any threat or promise to the
appellant.
Christopher Soares, the Inspector of (Customs (P. W. 4)
testified that no threats, coercion or inducements were used
and that the statement Ex. 1 was made by the appellant,
voluntarily.
While it may be conceded that a person summoned by an
officer of Customs to make a statement under s. 108 of the
Customs Act, is under compulsion of law to state the truth,
the compulsion there under, assuming it amounts to a threat,
does not proceed "from a person in authority" within the
contemplation of s. 24, but emanates from law.
Thirdly, the mere fact that the Inspector of Customs
had, before recording the statement, warned the deponent of
the possibility of his
678
prosecution for perjury in case he did not make the
statement truthfully, cannot be construed as a threat held
out by the officer which could have reasonably caused the
person making the statement to suppose that he would by
making that statement, gain any advantage or avoid any evil
of a temporal nature in reference to the proceedings against
him for smuggling.
In view of what has been said above, we have no
hesitation in holding that the statement Ex. 1, was not
barred under s. 24, Evidence Act. The statement Ex. P-1 was
clearly admissible under s. 21, Evidence Act as an admission
of incriminating facts.
Lastly, Mr. Chaudhry tried to contend that the
incriminating facts admitted in Ex. 1 taken along with the
other facts appearing in the evidence of prosecution
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witnesses, were insufficient to establish an offence under
s. 135, Customs Act against the appellant because no
notification under sub-s. (2) of s. 123, of the Customs Act
had been issued in respect of the import of the goods of the
kind seized, and the aid of the statutory presumption under
that section was not available to the prosecution.
We are unable to accept this contention. While it is
true that in the absence of the requisite notification, the
statutory presumption under s. 123 could not be invoked by
the prosecution, the circumstances established unerringly
raise an inference with regard to all the factual
ingredients of an offence under s. 135(b) read with s.
135(ii) of the Customs Act. In Ex. 1 which was proved by
P.W. 4, it is admitted that these packages which were later
found to contain contraband goods by the Customs
authorities, were surreptitiously loaded in the truck under
cover of darkness at Reti Bunder (sea shore) from the side
of sea-side wall, in the presence of the appellant, and
thereafter the first accused took the wheel, while the
appellant sat by his side in the truck, and drove towards
Sandhurst Station. It is further admitted that some Bania
paid Rs. 2,000/- to the appellant which was meant to be
given to the driver of the truck. Unfortunately, the truck
skidded near the Dongri Police Station and came to a stop.
On hearing the impact of the accident, the police came out,
took both the accused into the Police Station and seized the
truck and the goods. In short, the. appellant had clearly
admitted that these packages containing the contraband goods
were imported surreptitiously from Reti Bunder under cover
of darkness. It was further established de-hors the
statement of the appellant, that these packages, on opening
by the Customs officer, were found to contain contraband
goods of foreign make. They were brand new articles packed.
The circumstances of the arrest of the appellant while
escaping
679
from the truck, the seizure of the truck and the goods, the
contraband nature of the goods, the fact that at the time of
the seizure, the goods, were in the charge of the appellant,
the fact that no duty on these goods had been paid, the
seizure of Rs. 2,000/- as cash from the appellant etc. were
proved by evidence aliunde rendered by P. Ws. 1 and 2. To
some extent, the hostile witness, P.W. 5, also, supported
the prosecution. The circumstances established unmistakably
and irresistibly pointed to the conclusion that the
appellant was knowingly concerned in a fraudulent attempt at
evasion, if not, fraudulent evasion, of duty chargeable on
those contraband goods.
In the result, the appeal fails and is dismissed.
M.R. Appeal dismissed.
680