Full Judgment Text
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PETITIONER:
POOLPANDI ETC. ETC.
Vs.
RESPONDENT:
SUPERINTENDENT, CENTRAL EXCISE ANDOTHERS ETC. ETC
DATE OF JUDGMENT14/05/1992
BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
VERMA, JAGDISH SARAN (J)
YOGESHWAR DAYAL (J)
CITATION:
1992 AIR 1795 1992 SCR (3) 247
1992 SCC (3) 259 JT 1992 (4) 119
1992 SCALE (1)1114
ACT:
Customs Act, 1962/Foreign Exchange Regulation Act,
1973:
Ss. 107, 108, 110/39, 40-Investigation-Interrogation of
person concerned-Assistance of lawyer-Whether permissible.
Seizure of goods and documents-Period of limitation-
Time taken in litigation before High Court or Supreme Court
to be excluded from computation.
Constitution of India, 1950 :
Articles 20(3), 21-Person accused of any offence-Who
is: Interrogation of person concerned during investigation
under Customs Act or FERA-Refusal of assistance of lawyer-
Whether violative of.
Words and phrases:
‘Just, fair and reasonable test’- Application of.
HEADNOTE:
The question whether a person is entitled to the aid of
a counsel when he is questioned during investigation under
the provisions of the Customs Act, 1962 or the Foreign
Exchange Regulation Act, 1973, was decided by the Delhi High
Court against the Department whereas the Madras High Court
took* the opposite view. Both the views were challenged in
the two appeals by special leave before this Court. Several
writ petitions were also filed before this Court by some
persons concerned.
It was contended on behalf of the writ petitioners and
the appellants (in the appeal against the judgment of the
Madras High Court) that at the time of interrogation of a
person during the investigation under the provisions of
Customs Acts or the FERA, there being no prohibition under
248
the two Acts, he is entitled to the assistance of a lawyer,
and to deny him such a right would be violative of Article
20(3) of the Constitution: and that in view of the
Constitutional protection of life and personal liberty
guaranteed by Article 21, the person concerned is entitled
to a lawyer during questioning by the Department.
On behalf of the Department it was contended that there
is a distinction between an accused in a criminal case and a
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person called for interrogation under the FERA and Customs
Act, and the protection under Article 20(3) which may be
available to an accused cannot be expanded to other persons.
Allowing the appeal of the Department and dismissing
the other cases, this Court,
HELD : 1.1.The persons being interrogated during
investigation under the provisions of the Customs Act, 1962
or the Foreign Exchange Regulation Act, 1973 are not
accused within the meaning of Article 20(3) of the
Constitution and the right reserved by the Constitution in
favour of accused persons cannot be expanded to be enjoyed
by others. [p 257 A]
Ramesh Chandra Mehta v. State of West Bengal, [1969] 2
SCR 461, followed.
*K.T. Advani v. The State : 1985 Crl.L.J. 1325,
overruled.
Poolpandi etc. v. Superintendent, Central Excise
(W.P. Nos. 4690-91/87, decided by Madras High Court on
23.6.1987), approved.
1.2. Clause (3) of Article 20 of the Constitution
declares that no person accused of any offence shall be
compelled to be a witness against himself. It does not
refer to the hypothetical person who may in the future be
discovered to have been guilty of some offence. [p. 252 A]
1.3. 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 he was a person accused of an offence. [p. 252 C]
Ramesh Chandra Mehta v. State of West Bengal, [1969] 2
SCR 461 and Illias v. Collectors of Customs, Madras, [1969]
2 SCR 613, followed.
249
Ramesh Bhogilal Shah and another v. D.K. Guha and Ors.,
[1973] 1 SCC 696, referred to.
Nandini Satpathy v. Dani (P.L.) and Anr., [1978] 3 SCR
608, inapplicable.
2.1 Applying the ‘just fair and reasonable test’, it
can not be said that calling a person away from his own
house and questioning him in the atmosphere of the customs
office without the assistance of his lawyer or his friends
either violates his constitutional right under Article 21 or
amounts to mental torture. [p. 257 B C; F]
2.2 The purpose of the enquiry under the Customs Act
and the other similar statutes will be completely frustrated
if the whims of the persons in possession of useful
information for the departments are allowed to prevail. For
achieving the object of such an enquiry if the the
appropriate authorities be of the view that such persons
should be dissociated from the atmosphere and the company of
persons who provide encouragement to them in adopting a non-
cooperative attitude to the machineries of law, there cannot
be any legitimate objection in depriving them of such
company. The relevant provisions of the Constitution in
this regard have to be construed in the spirit they were
made and the benefits thereunder should not be expanded to
favour exploiters engaged in tax evasion at the cost of
public exchequer. [p. 257 D - F]
3. During the litigation, orders of stay have been
passed from time to time and the matters have remained
pending for no fault on the part of the concerned
Departments of the Union of India and, therefore, the entire
period for which the cases have remained pending either in
this Court or in the High Courts shall be excluded while
computing the period under s. 110 of the Customs Act and the
other relevant provisions. [p. 258 F G]
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Re Groban : 352 US 330, 1 L Edn. 376 and Carlos Garza
De Luna Appt. v. United States, 1 American Law Reports 3d
967, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
301-302 of 1987.
From the Judgment and Order dated 23.6.1987 of the
Madras High Court in W.P. Nos. 4690/87 and 4691 of 1987.
250
WITH
Criminal Appeal Nos. 476/86; Writ Petitions (Crl.) Nos.
350 519, 520-21, 571-72, and 623 of 1989; 235, 236, 795,
847, 848, 1215, 1219, 1257, 1824, 1864 & 1887/1990; 7, 26,
27, 28, 60, 107, 108, 717, 1336, 1390 and 1392 of 1991.
K.T.S. Tulsi, Addl. Solicitor General, H.N. Salve, U.R.
Lalit, Ms. Bina Gupta, Ms. Monika Mohil, Ms. Monika Lal, A.
Subba Rao, Ms. Sushma Suri, P. Parmeswaran, Ms. A
Subhashini, K.K. Mani, Sumeet Kachwaha and B. Kumar for the
appearing parties.
The Judgment of the Court was delivered by
SHARMA, J. The common question arising in these cases
is whether the respondent in Criminal Appeal No. 476 of
1986, the appellant in Criminal Appeals No. 301-302 of 1987
and the petitioners in the other cases are entitled to the
presence of their lawyers when they are questioned during
the investigation under the provisions of the Customs Act,
1962 and the Foreign Exchange Regulation Act, 1973
(hereinafter referred as to ‘FERA’). There is difference of
opinion between the High Courts on this issue, the Delhi
High Court in the judgment (reported in 1985 Crl. Law
Journal at page 1325) under challenge in Criminal Appeal No.
476 of 1986 holding against the revenue, and the Madras High
Court taking the opposite view in its judgement impugned in
Criminal Appeals No. 301-302 of 1987.
2. The main argument has been addressed by Mr. Salve
with reference to the facts in Criminal Appeals No. 301 and
302 of 1987 arising out of a matter under the Customs Act,
1962. Mr. U.R. Lalit, the counsel in Writ Petition (Crl.)
No. 717 of 1991, has adopted his contentions and supported
the same by additional grounds. The Enforcement
Directorate, Delhi zone, investigating the matter under the
FERA, has filed Criminal Appeal No. 476 of 1986 against the
judgment of the Delhi High Court allowing the applications
under section 482 of the Criminal Procedure Code, of the
respondents, who are represented before us by Mr. Panjwani.
3. Mr. Salve referred to the provisions of Chapter XIII
and XIV of the Customs Act and contended that since there is
no statutory provision prohibiting the presence of a counsel
during the interrogation of the person
251
concerned, a request in this regard, if made, cannot be
legitimately refused. In any event, the learned counsel
proceeded to urge, that in a situation where the possibility
of the person under interrogation of being prosecuted as an
accused cannot be denied, he is entitled to the assistance
of a lawyer during the questioning, because to deny him such
a right would be violative of the constitutional protection
under Article 20(3) of the Constitution. Alternatively, Mr.
Salve contended that in view of the constitutional
protection of life and personal liberty guaranteed by
Article 21, the person concerned is entitled to insist upon
the presence of his lawyer when he is questioned by the
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officers of the department.
4. Both Mr. Salve and Mr. lalit strongly relied on the
observations in Nandini Satpathy v. Dani (P.L.) and Anr.,
[1978] 3 SCR 608, at pages 623, 624, 626-629, 645 and 646.
We are afraid, in view of two judgments of the Constitution
Bench of this Court in Romesh Chandra Mehta v. State of West
Bengal, [1969] 2 SCR 461 and Illias v. Collector of
Customs, Madras, [1969] 2 SCR 613, the stand of the
appellant cannot be accepted. The learned counsel urged
that since Nandini Satpathy’s case was decided later, the
observations therein must be given effect to by this Court
now. There is no force in this argument.
5. Mr. Salve referred to the provisions of the Customs
Act and contended that in view of the mandate in section
108(3) a person has to answer truthfully the question put to
him by the Customs Officer and has to produce documents or
any other thing as may be required, and he is within his
rights to refuse to answer such questions which may lead to
his own prosecution. An inquiry under the Act is held only
when prima facie some violation of the law takes place, and
the purpose of the inquiry is to identify the guilty person
who has been described by the learned counsel as the
potential accused. The protection under Article 20(3) is
claimed to be not limited to persons who are already accused
but to extend to cover a potential accused too; and a person
under interrogation may himself be such a potential accused.
He may, therefore, require the presence of a lawyer who can
advise him as to which of the questions he may refuse to
answer in view of the protection under Article 20(3). It is
submitted that to deny him this privilege is to deny him a
constitutional right. We do not find any merit in this
argument in view of the decisions of this Court referred to
above.
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6. Clause (3) of Article 20 declares that no person
accused of any offence shall be compelled to be a witness
against himself. It does not refer to the hypothetical
person who may in the future be discovered to have been
guilty of some offence. In Romesh Chandra Mehta’s case, the
appellant was searched at the Calcutta Airport and diamonds
and jewelleries of substantial value were found on his
person as also currency notes in a suitcase with him, and in
pursuance to a statement made by him more pearls and
jewellery were recovered from different places. He was
charged with offences under the Sea Customs Act. During the
trial, reliance was placed on his confessional statements
made before the Customs Authorities, which was objected to
on the ground that the same were inadmissible in evidence
inter alia in view of the provisions of Article 20(3).
While rejecting the objection, the Supreme Court held that
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 in
question, he was a person accused of an offence. Pointing
out to the similar provisions of the Sea Customs Act as in
the present Act and referring to the power of a Customs
Officer, in an inquiry in connection with the smuggling of
goods, to summon any person whose attendance he considers
necessary to give evidence or to produce a particular
document, the Supreme Court observed thus:-
"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
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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 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 or
or infringing the provisions of the Sea Customs Act
with the commission of any office. 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
253
the provisions of the Sea Customs Act, he is not
accusing the person of any offence punishable at a
trial before a Magistrate."
The above conclusion was reached after consideration of
several relevant decisions and deep deliberation on the
issue, and cannot be ignored on the strength of certain
observations in the judgment by three learned Judges in
Nandini Satpathy’s case which is, as will be pointed out
hereinafter, clearly distinguishable.
7. A perusal of the facts in Nandini Satpathy v. Dani,
(Supra) would clearly indicate that the decision has no
application in the present cases. The matter arose out of a
complaint filed by the Deputy Superintendent of Police
(Vigilance) against the appellant under section 179 of the
Indian Penal Code before the Sub Divisional Judicial
Magistrate, Cuttack. The Magistrate took the cognizance of
the offence and issued summons for appearance against the
appellants. It was contended unsuccessfully that the charge
was unsustainable in view of the protection under Article
20 (3) of the Constitution and the immunity under section
161 (2) of the Criminal Procedure Code. In this background
the observations relied upon by Mr. Salve and Mr. Lalit were
made and they cannot be treated to have in any way diluted
the ratio in Romesh Chandra Mehta’s case. The question
whether customs officials are police officers, and whether
the statements recorded by the customs authorities under
section 107 and 108 of the Customs Act were inadmissible in
evidence were examined in Illias v. Collector of Customs
(supra) and answered in the negative by a Bench of five
Judges and it is, therefore, no use referring to the
observations made in the judgment in a regular criminal case
initiated by the police.
8. Reference was also made to the Constitution Bench
decision in Ramanlal BhogiLal Shah and another v. D.K. Guha
and Others, [1973} 1 SCC 696. The appellant Ramanlal was
arrested on August 31, 1971 under Section 19B of the Foreign
Exchange (Regulation) Act, 1947, and the grounds of arrest
served on him included the accusation relating to a
transaction with reference to which he was summoned on April
17, 1972 to appear before the Deputy Director, Enforcement,
Directorate on April 28, 1972 to give evidence. The
petitioner pointed out that he was accused at the time when
he was arrested of having committed an offence which was the
subject- matter of the enquiry and the summons should,
therefore, be withdrawn. The prayer was rejected by the
Deputy Director who
254
insisted that the petitioner had to comply with the same.
On these facts the matter was considered by the Supreme
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Court. It was pointed out that the First Information Report
in the case had been lodged earlier, and since "it is well
settled that with the lodging of the First Information
Report a person is accused of an offence within the meaning
of Article 20 (3)", the appellant was entitled to partial
relief. The decision in Romesh Chandra Mehta v. State of
West Bengal was referred to and not dissented from. We,
therefore, reject the argument of the learned counsel for
the appellants founded on Article 20(3) of the Constitution.
It will be further noticed that in Ramanlal’s case (supra)
the Bench took the precaution of observing that the only
protection that Article 20 (3) gives to a person accused of
an offence is that he cannot be compelled to be a witness
against himself, but this does not mean that he need not
give information regarding matters which do not tend to
incriminate him. Rejecting the prayer of the appellant for
setting aside the summons, the Court directed him to appear
before the Deputy Director and answer such questions as did
not tend to incriminate him. It is significant to note that
these observations permitting him not to answer self-
incriminating questions were made only because the appellant
was held to be an accused on the relevant date.
9. Mr. Salve has, next, contended that the appellant is
within his right to insist on the presence of his lawyer on
the basis of Article 21 of the Constitution. He has urged
that by way of ensuring protection to his life and liberty
he is entitled to demand that he shall not be asked any
question in the absence of his lawyer. The argument
proceeds to suggest that although strictly the questioning
by the Revenue authorities does not amount to custodial
interrogation, it must be treated as near custodial
interrogation, and if the same is continued for a long
period it may amount to mental third degree. It was
submitted by both Mr. Salve and Mr. Lalit that the present
issue should be resolved only by applying the ‘just, fair
and reasonable test’, and Mr. Lalit further added that the
point has to be decided in the light of the facts and
circumstances obtaining in a particular case and a general
rule should not be laid down one way or the other. Mr. Salve
urged that when a person is called by the customs
authorities to their office or to any place away from his
house, and is subjected to intensive interrogation without
the presence of somebody who can aid and advise him, he is
bound to get upset, which by itself amounts to loss of
liberty. Reference was made by the learned counsel to the
minority view in Re Groban : 352 US 330, 1 L de 2d 376,
declaring that it violates the the protection
255
guaranteed by the constitution for the State to compel a
person to appear alone before any law enforcement officer
and give testimony in secret against his will.
10. We are afraid the judgment of the United States
Supreme Court in Re Grabon’s case : 352 US 330, 1 Lawyer
Edition 2d 376; is of no assistance to the appellant. The
matter related to an investigation into the cause of a fire
where the right to assistance of counsel to the witness was
denied, on the basis of a state statue. In this situation
the witnesses refused to depose without the presence of
their counsel, and their refusal was treated as a violation
of the provisions of the statue, and they were sent to
prison. They filed an application for writ of habeas corpus
which on dismissal came before the United States Supreme
Court. The question which was realised and considered by
the Court was whether the witnesses had a constitutional
right to the assistance of counsel during their
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interrogation as witness in the enquiry. Reed, J., speaking
for three members of the Court, rejected the contention that
the witnesses had such a right. It was pointed out that the
persons concerned were not accused and they could not claim
the right available to an accused of being heard through his
own counsel. Two other Judges concurred in this view and
thus the majority judgment went against the plea of such a
claim. It was observed that prosecution of an individual
differs widely from investigation of incidents damaging to
the economy or dangerous to the public. The enquiry under
consideration was a proceeding to elicit facts on the basis
of which it could be determined whether the fire was the
result of carelessness or design, and although it could lead
to arrest of any person against whom there was sufficient
evidence on which a charge of arson could be based, it was
held that the fact that the testimony of the witnesses might
provide basis of criminal charges against them did not mean
that they were entitled to insist on the presence of their
counsel. The majority decision in the case supports the
stand of the respondent, Union of India. We have gone
through the minority view in the judgment of Black, J. and
are not impressed by the same. Mr. Salve has relied upon
the following observations from the judgment :-
"Secret inquisitions are dangerous things justly
feared by free men everywhere. They are the
breeding place for arbitrary misuse of offical
power. They are often the beginning of tyranny as
well as indispensable instruments for its survival.
256
Modern as well as ancient history bears witness
that both innocent and guilty have been seized by
officers of the state and whisked away for secret
interrogation or worse until the groundwork has
been secretly laid for their inevitable conviction.
While the labels applied to this practice have
frequently changed, the central idea wherever and
whenever carried out remains unchanging-extraction
of "statements" by one means or another from an
individual by officers of the state while he is
held incommunicado."
The learned judge, accordingly expressed his dissent
observing that to compel a person to answer questions at a
secret interrogation when he is denied legal assistance and
where he is subject to the uncontrolled and invisible
exercise of power by government officials, would be
unconstitutional. We do not share the apprehension as
expressed above in the minority judgment in connection with
enquiry and investigation under the Customs Act ad other
similar statutes of our country. There is no question of
whisking away the persons concerned in the cases before us
for secret interrogation, and there is no reason for us to
impute the motive of preparing the groundwork of false cases
for securing conviction of innocent persons, to the officers
of the state duly engaged in performing their duty of
prevention and detection of economic crimes and recovering
misappropriate money justly belonging to the public.
Reference was also made to the observation in the judgment
in Carlos Garza De Luna, Appt., v. United States : 1
American Law Reports 3d 969; setting out the historical
background of the right of silence of an accused in a
criminal case. Mr. Salve has relied upon the opinion of
Wisdom, Circuit Judge, that the history of the development
of the right of silence is a history of aceretions, not of
an avulsion and the line of growth in the course of time
discloses the expanding conception of the right than is
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restricted application. The Judge was fair enough to
discuss the other point of view espoused by the great
jurists of both sides of Atlantic before expressing his
opinion. In any event we are not concerned with the right
of an accused in a criminal case and the decision is,
therefore, not relevant at all. The facts as emerging from
the judgment indicate that narcotics were thrown from a car
carrying the two persons accused in the case. One of the
accused persons testified at the trial and his counsel in
argument to the jury made adverse comments on the failure of
the other accused to go to the witness box. The first
accused was acquitted and the second accused was convicted.
The question
257
of the right of silence of the accused came up for
consideration in this set up. In the cases before us the
persons concerned are not accused and we do not find any
justification for "expanding" the right reserved by the
constitution of India in favour of accused persons to be
enjoyed by others.
11. We do not find any force in the arguments of Mr.
Salve and Mr. Lalit that if a person is called away from his
own house and questioned in the atmosphere of the customs
office without the assistance of his lawyer or his friends
his constitutional right under Article 21 is violated. The
argument proceeds thus : if the person who is used to
certain comforts and convenience is asked to come by himself
to the Department for answering question it amounts to
mental torture. We are unable to agree. It is true that
large majority of persons connected with illegal trade and
evasion of taxes and duties are in a position to afford
luxuries on lavish scale of which an honest ordinary citizen
of this country cannot dream of and they are surrounded by
persons similarly involved either directly or indirectly in
such pursuits. But that cannot be a ground for holding that
he has a constitutional right to claim similar luxuries and
company of his choice. Mr. Salve was fair enough not to
pursue his arguement with reference to the comfort part, but
continued to maintain that the appellant is entitled to the
company of his choice during the questioning. The purpose
of the enquiry under the Customs Act and the other similar
statutes will be completely frustrated if the whims of the
persons in possession of useful information for the
departments are allowed to prevail. For achieving the
object of such an enquiry if the appropriate authorities be
of the view that such persons should be dissociated from the
atmosphere and the company of persons who provide
encouragement to them in adopting a non-cooperative attitude
to the machineries of law, there cannot be any legitimate
objection in depriving them of such company. The relevant
provisions of the Constitution in this regard have to be
construed in the spirit they were made and the benefits
thereunder should not be "expanded" to favour exploiters
engaged in tax evasion at the cost of public exchequer.
Applying the ‘just, fair and reasonable test’ we hold that
there in no merit in the stand of appellant before us.
1.2. Both Mr. Lalit, the learned counsel in Writ
Petition (Crl.) No 717 of 1991 and the learned counsel for
the respondent in Criminal Appeal No. 476 of 1986 (arising
out of a FERA case) reiterated the stand that the parties
represented by them respectively should be treated to be in
identi-
258
cal position as an accused and consequently should be
allowed the protection under clause (3) of Article 20. In
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view of the judgments of this Court and the discussion as
mentioned earlier, the argument cannot be accepted. Mr.
Tulsi, the learned Additional Solicitor General, was right
in pointing out the distinction between an accused in a
criminal case and a person called for interrogation under
the present Acts as discussed at page 466 in Romesh Chandra
Mehta’s case (supra).
1.3. The judgment under challenge in Criminal Appeal
No. 476 of 1986 deals with several questions raised by the
respondent, and the appeal has been pressed by Mr. Tulsi as
against that part which allows the presence of a lawyer
when the respondent is interrogated. It has been rightly
contended on behalf of the appellant that the relevant
provisions, in this regard, of the FERA and the Customs Act
are in pari materia and the object of the two Acts is also
similar. As pointed out earlier the case of Ramanlal
Bhogilal (supra) was one arising under FERA. Consequently
Criminal Appeal No. 476 of 1986 has to be allowed against
that part of the judgment of the Delhi High Court which
dealt with the right of the respondents to have their lawyer
during their interrogation.
1.4. In the result Criminal Appeal No. 476 of 1986 is
allowed, but without costs in the terms indicated above and
the other cases are dismissed with costs to the Union of
India .
1.5. The learned counsel for the Union of India has
drawn our attention to the period of limitation fixed under
the statutes for the purpose of taking certain steps and has
rightly contended that in view of the pendency of the
present cases in Courts the period has to be extended.
During the litigation, orders of stay have been passed from
time to time and the matters have remained pending for no
fault on the part of the concerned Departments of the Union
of India and we, therefore, direct that the entire period
for which the cases have remained pending either in this
Court or in the High Court shall be excluded while computing
the period under section 110 of the Customs Act and the
other relevant provisions.
R.P. Cr. A. 476/86 allowed and others dismissed.
259