minal Appeals Nos86 to 90 of 1968
Appeals from the judgment and order dated January 13 1968 of the Bombay High Court in Criminal Appeals Nos
497 to 499 516 and 500 of 1965 respectively
R Jethmalani KN Mirchandani and UP Singh for the appellant in Cr A No 86 of 1968
Nur ud din Ahmed KN Mirchandani and UP Singh for the appellant in Cr A No 87 of 1968
ASR Chari JM Mirchandani and K Hingorani for the appellant in Cr
A No 88 of 1968
K Hingorani for the appellant in Cr A No 89 of 1968
NH Hingorani for K Hingorani for the appellant in CrA 90 of 1968
LM Singhvi BD Sharma and SP Nayar for the respondent in all the appeals
The Judgment of the Court was delivered by Mitter J
After stating the facts His Lordship proceeded  The High Court dealt generally with the charge of conspiracy against all the accused and individually with respect to the charges raised against each accused and considered the explanations given by them with regard to the circumstances tending to criminal them
Mr Jethmalani who argued the case of the first appellant at some length raised various questions of law with regard to the admissibility of the evidence afforded by statements before the Customs Officers under section 171 A the conclusion of the High Court that his client had custody or possession of all the exhibits found as a result of the search of the premises of HB Advani Brothers on 21st July 1950 the correctness of the finding of the High Court that exhibit F 2 contained a complete account with regard to the consignment per ss
Canton the finding of the High Court that the CIF value of the goods exceeded the invoice value many times over by relying on the evidence of an appraiser of the Customs department and the absence of any 824 overt act on the part of his client after the search on 21st July 1959
The argument with regard to the admissibility of evidence of the statements was adopted by counsel for all the other accused and need not be dealt with separately
Mr Jethmalani virtually conceded that if his contentions on the above heads were not accepted by this Court it would be futile for him to argue that the High Court had gone wrong in coming to the conclusion as to the
guilt of his client on the strength of the evidence before it and the inference which could legitimately be drawn therefrom
We propose to deal with the other points before examining the contention with regard to the admissibility of the statements made in pursuance of powers exercised by the customs officers under section 171 A With regard to the finding of the High Court in agreement with that of the Magistrate that accused I had the custody or possession of exhibits Exs
B to F 2 counsel argued that except those seized from his wallet the others were found in the drawer of the table of the premises searched there was no evidence to show that the said table was the table of his client and as there was no proof that his client had any financial proprietary interest in the firm of HB Advani Brothers there was nothing to warrant the conclusion that the exhibits other than  those in the wallet were in his custody
The High Court dealt elaborately with this point and we do not think it necessary to reexamine the same except to note the comment made before the High Court as well as before us that the evidence of Mr Dame the panch witness who had said that at the time of the search accused 1 was sitting at the table in a drawer of which the incriminating exhibits were found was
unbelievable
It was argued that inasmuch as the panchnama did not record this fact Dame who gave evidence in 1962 should not have been believed when he claimed
to have remembered the
fact of accused 1 sitting at the table mentioned
Both the courts accepted Dame s statement and we see no good reason to take a different view
After all it would not be extraordinary for any person to recollect even after a considerable lapse of time that when he entered the room which was going to be searched he found a particular person seated at a certain table inasmuch as this would be the very first thing which would attract any_body s attention
With regard to exhibit F 2 which according to the prosecution case accepted by the courts below contained an account with regard to the consignment per ss
Canton the prosecution case was that the figures on the left hand side indicated the rates and the figures on the right hand side indicated the total CIF value of the goods of each type in that consignment
Before us exception was taken to the two figures 8080 and 1102 appearing on the right hand side
According to the prosecution the figure 1102 was
the amount of insurance premium in dollars paid in 825 respect of the consignment on ss Canton
As the original which should have been with accused 2 was not produced a copy of the insurance policy was put in and marked as exhibit Z 301
exhibit
Z 259 F 1 was a copy of the same produced by accused 2 before the customs officers on 24th July 1959 as was borne out by the statement of accused 2
The contents of the two exhibits were found to be the same by both the courts
The Claim Superintendent of the insurance company in Bombay produced the copy of the marine premium note in respect of the said policy showing the amount of premium as 1102 and said to have been received by the Bombay office of the insurance company
Objection was raised to the admissibility of evidence of one Martin Assistant Manager of New Zealand Insurance Company Hong Kong Branch who had joined that branch in 1963 ie long after the issue of the policy in 1959 although he had been an employee of the said company since 1952 and claimed to be familiar with the procedure of insurance of export cargo followed by the company
According to this witness the company used to prepare as many copies of the policy as were required by the insurer
A carbon copy of the original was always kept in the office record
Martin produced an office copy of the policy in respect of the consignment on ss
Canton to which was attached a marine premium debit note and it was his evidence that in the usual course of business of the company such a debit note
was always prepared at the time when the policy was issued and a copy thereof was attached to the copy of the policy kept in the records
Counsel objected to the reception of the copy of the premium note on the ground that there was no proof of its making or its correctness
The High Court accepted the evidence of Martin that the copy of the premium debit note had been attached to the policy kept in the office record relying on the presumption afforded by illustration f to section 114 of the Evidence Act that the practice of the insurance company of attaching such a note to the policy had been followed in this particular case
In our view the High Court was entitled to do
so and no objection can be allowed to be raised on the ground that there was No proof of the preparation of that original premium note
With regard to
the figure
8080 counsel argued that there was no proof that this was the amount of the freight in dollars charged in respect of the consignment per ss
Canton
Counsel argued that the freight paid was not shown in the bill of lading in this case exhibit Z 259 G and the production of the copies of the bill of lading exhibit M 3 and Z 142W on which somebody had written the figure 8080 did not establish the prosecution case
exhibit
M 2 was the Manifest of Cargo per ss
Canton and entry No 5 therein showed that in respect of the consignment 8080 dollars had been paid as freight
The prosecution adduced evidence of PW 45 Yeshwant Shankar Keluskar of Mackjnon 826 Mackenzie  Co who produced the Import General Manifest dated 20th July 1959 as also the Freight Manifest
According to this witness on the consignment on ss
Canton 8080 Hong Kong dollars had been paid as freight
He had No personal knowledge but made
his statement on the basis of the record produced from his office
The prosecution also relied on exhibit M 3 the shipper s copy of the bill of lading produced before the customs officers on 24th July 1959 by accused 2 containing the rate at which the freight was charged and also the actual amount of freight charged viz 8080 Hong Kong dollars
Objection was taken to this inasmuch as the amount of the freight did not appear in the bill of lading exhibit Z 259 E
The prosecution case was that freight was paid after the preparation of the Bill of lading and just before the goods were actually put on board and the reasonable explanation was that the amount of freight had been calculated subsequent to the preparation of the bill of lading and endorsed thereon as on exhibit M 3 subsequently
According to the High Court it could be said to be a subsequent original endorsement on a copy and the High Court relied on exhibit Z 148 W a carbon copy of the bill of lading bearing a similar endorsement and also on the fact that on both exhibit M 3 and exhibit Z 148 W the words freight paid appeared impressed by a rubber stamp in addition to the calculation of freight and the actual amount of freight
In our opinion the High Court rightly held that all this established the prosecution case that the figure 8080 in exhibit F 2 indicated the freight that was actually paid for the consignment on ss
Canton
As exhibit M 3 was produced by accused 2 the consignee before the customs officer on 24th July 1959 and contained the said endorsement the High Court was entitled to draw the necessary inference therefrom supported as it was by exhibit Z 148 W the Captain s copy of the bill of lading which bore a similar endorsement
Counsel contended that the evidence of PW 90 the appraiser of customs with regard to the CIF value and the market value of the goods was at best hearsay and should have been rejected by both the courts below
The entries relied on in this connection appear on Ex D found in the possession of accused No 1
There was no evidence to show that it was written by him
PW 90 JM Jamedar s evidence was that he had been acting as an appraiser of customs doing valuation work for 11 years and had experience in the valuation of Japanese rayon goods fountain pen refills Roamer watches plastic buttons_ playing cards etc
He had taken samples from the consignments and noted the particulars thereof and had made the valuation of the goods of the consignments in question after making enquiries from the market and on the basis thereof had stated the CIF value at the relevant time
827 This witness had been subjected to prolonged cross examination but nothing came out therein which would enable the court to hold that his testimony was unreliable
The witness had stated that the goods had been valued by him after making necessary enquiries from the importers dealing in the same or similar goods supplied from foreign countries as well as by referring to prices offered or quotations whenever available and where it was not possible to obtain the CIF value from the market he had assessed the value of such items to the best of his judgment and experience
It was argued by counsel that as the witness was not himself a party to whom offers and acceptances had been made or communicated by others and as he did not claim to have been present when such offers and acceptances had been made his evidence as regards the value was hearsay
It was said that at best he was a mere conduit pipe of enquiries from others and was not in the position of an expert
We find ourselves unable to accept this submission
Jamedar according to his unshaken testimony had been working as an appraiser of customs
for 11 years out of his 16 year  service and was engaged in the valuation of goods and ascertaining their CF value
He had occasion to value goods which formed the subject matter of con signments of ss
Canton
He claimed to have made enquiries in the market with regard thereto
Apart from his own experience and knowledge the record shows that the witness gave evidence as to the CIF value of a very large number of articles and it should have been quite easy for the defence who cross examined him at great length to discredit his testimony by offering evidence from the market that the witness s estimate as to the CIF value of any particular item was unreliable
After all what the court had to do in this case was to form an opinion as to
whether the CIF value greatly exceeded the invoice value as put forward by the prosecution and Jamedar s evidence certainly went to show that the CIF value and the market value of the contraband goods imported was far in excess of the value thereof mentioned in the invoices
It may be mentioned here that the document exhibit D mentioned the consignments inter alia of all the three ships and the High Court held that the document related to imports in which accused 2 was interested and possession of the document by accused 1 went to show that he too was concerned in such imports
We now come to the question as to the admissibility of the statements made to the customs officers under section 171 A of the Sea Customs Act
At the outset it has to be noted that this section came into the Statute Book in the year 1955 and there was nothing similar to it in the Act before such inclusion
The section  reads  1  Any officer of Customs duly employed in the prevention of smuggling shall have power to summon 828 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 made 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
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 to produce such documents an other things as may be required Provided that the exemption under section 132 of the Code of Civil Procedure 1908 shall be applicable to any requisition for attendance under this sections
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
 In Maqbool Hussain vs The State of Bombay 1 where provisions of the Sea Customs Act were considered at some length by this Court before the amendment of 1955 by insertion of section 171 A it was said at p 742 All this is for the enforcement of the levy of and safeguarding the recovery of the sea customs duties
There is no procedure prescribed to
be followed by the Customs Officer in the matter of such adjudication and the proceedings
before the Customs Officers are not assimilated in any manner whatever to proceedings in courts of law according to the provisions of the Civil or the Criminal Procedure Code
The Customs Officer are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness
All these
provisions go to
show that far from being authorities bound by any rules of evidence or procedure established by law and invested with power to enforce their own judgments or orders the Sea Customs Authorities are merely constituted administrative machinery for the purpose of adjudging confiscation increased rates of duty and penalty prescribed in the Act
1  829 We are
of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the
purpose of supporting a plea of double jeopardy
 The Court in that case was dealing with the question as to whether an order of confiscation was a punishment inflicted by a court or a judicial tribunal within the meaning of article 20 2 of the Constitution
In Thomas Dana vs The State of Punjab1 the provisions of the Sea Customs Act were examined again and referring to section 187 A it was said This section makes it clear that the Chief Customs Officer or any other officer lower in rank than him in the Customs department is not a court and that the offence punishable under item 81 of the Schedule to section 167 cannot be taken cognizance of by any court except upon a complaint in writing made
as prescribed in that section
 With regard to the use of the word offence  indiscriminately all over the Act it was said All criminal offences are offences but all offences
in the sense of infringement of a law are not criminal offences but when a trial on a charge of a criminal offence in intended under any one of the entries of the Schedule aforesaid it is
only the Magistrate having jurisdiction who is empowered to impose a sentence of imprisonment or fine or both
 It was argued before us that the position became entirely different as a result of the inclusion of section 171 A as sub section
4 of the section went to show that an enquiry by customs authorities wherein statements of persons were recorded was to be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code
 Counsel argued that such proceeding was a judicial proceeding also for the other purposes thus attracting the operation of section 132 of the Evidence Act
Apart from the point as to non exercise of claim of privilege about which we express no opinion there can be no question that if the said section of the Evidence Act is to be attracted to such a proceeding statements made by him in any such inquiry could not be proved against him in the criminal proceedings launched
It was 1 1959 Supp 1 SCR 274 at 286
830 argued that sub section
3 of section 171 A made it obligatory on the persons summoned to state the truth upon any subject respecting which he was examined and if the proceeding was judicial proceeding there was nothing to
exclude the applicability of section 132
Our attention was drawn to s1 of the Indian Evidence Act which made the Statute applicable to all judicial proceedings in or before any court in the whole of India
As court  in section 3 included all Judges and Magistrates and all persons except arbitrators legally authorised to
take evidence it was contended that the customs officers being authorised by section 171
A of the Sea Customs Act were courts  within the meaning of the definition of section 3
Reference may also be made to the definition of evidence  in the said section which shows that the word means and includes inter alia all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry
Reference
also made to section 41 of the Code of Criminal Procedure 1898 under which investigation  for purposes of the Code includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorised by a Magistrate tiffs behalf and cl
m which defines judicial proceeding as including any proceeding in the course of which evidence is or may be legally taken on oath
Counsel relied strongly on the judgment of this Court in Lalji Haridas vs State of Maharashtra1 where this Court had to consider whether an Income tax Officer exercising powers under section 37 of the Income tax Act 1922 was a  court  within the meaning of section 195 1 b of the Code of Criminal Procedure making the sanction thereunder obligatory for the filing of a complaint in respect of an offence alleged to have been committed under section 193 of the Penal Code
Sub sections
1 to 3 of section 37 of the Income tax Act were worded somewhat differently from those of sub sections 1 to 3 of section 171 A of the Sea Customs Act
The words in sub section
4 of section 37 are for all practical purposes identical with those
used in section 171 A 4
There this Court by a majority of three to two were of opinion that the proceedings before the Income tax Officer were judicial proceedings not only under section 193 of the Indian Penal Code but were also
be treated as proceedings
in any court for the purpose of section 195 1 b of the Code of Criminal Procedure
The majority Judges referred to the sections in the Indian Penal Code and the Criminal Procedure Code mentioned above and to provisions in various other Acts wherein the legislature had expressly mentioned that section 195 Cr
PC would apply to proceedings before diverse authorities and accepted the argument that reading section 193 IPC and section 195 1 b Cr
PC together it would be reason 1  831 able to hold that proceedings which are judicial under the former should be taken to be proceedings under the latter
According to the minority Judges although the word judicial proceeding  was wide enough to
include not only proceedings before a court  but proceedings before certain tribunals it was clear from a decision of this Court in Indo China Steam Navigation Co Ltd vs The Additional Collector of Customs1 that a Customs Officer was not a court or Tribunal and section 374 of the Income tax Act should not be given a meaning different to that given in section 171 A4 of  the Sea Customs Act
 In our view if the Legislature intended that the inquiry under section 171 A was to be considered a judicial proceeding not within the narrow limits therein specified but generally it could have used suitable words
to express its intention
Although this Court gave a wider meaning to the expression judicial proceeding  in Lalji Haridas s case2 there is nothing in that judgment to warrant a still wider interpretation of that definition
Mr Jethmalani referred to the provisions in the Indian Oaths Act X of 1873 and on the basis of his argument that the statements under section 171 A 4 were made on oath contended that the proceeding became a judicial proceeding in the wider sense of the word
In our view the Oaths Act has no application here
The preamble to the Act shows that it was an Act to consolidate the law relating to judicial oaths affirmations and declarations and was enacted because the Legislature thought that it expedient to consolidate the law relating to judicial oaths affirmations and declarations and to repeal the law relating to official oaths affirmations and declarations
 Section 4 of the Act provided that The following Courts and persons are authorised to administer by themselves or by an officer empowered by them in this behalf oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law a all Courts and persons having by law or consent of parties authority to receive evidence  The relevant portion of section 5 runs Oaths or affirmations shall be made by the following persons  a all witnesses that is to say all persons who may lawfully be examined or give or be required to give evidence by or before any Court or person having by law or consent of parties authority to examine such persons and to receive evidence  1  2  SupCI69 9 832 Counsel argued that a Customs Officer was a person who had authority by law to receive evidence within the meaning of section 4 of the Oaths Act and anybody who could be lawfully examined before such a person would be a witness within the meaning of section 5 and as such it would be
necessary to administer oath to them
in our view the argument proceeds on a complete misconception of the provisions of the Act
The preamble to the Act shows that the oaths referred to are only judicial oaths and section 7 shows that all such oaths had to be administered according to such forms as the High Court might prescribe
The Customs Officers have nothing to do with such farms and nothing has been shown to us that any such formality was ever complied with
Neither do the records show that any oath was administered to any person making a statement under section 171 A In Maqbool Hussain s case1 this Court stated expressly that the Customs Officers were not authorised to administer oath and the position according to us is not altered by the insertion of section 171 A in 1955
Mr Jethmalani referred us to the decision in Queen Empress vs Tulja2 and to certain observations of West J in that case
There it was held that a Sub Registrar under the Registration Act 111 of 1877 was not a Judge and therefore was not a Court  within the meaning of section 195 of the Code of Criminal Procedure and as such his sanction was not necessary for a prosecution for forgery in respect of a forged document presented for registration in his office
West J had however observed that An inquiry is judicial if the object of it is to determine a jural relation between one person and another or a group of persons between him and the community generally but even a judge acting without such an object in view is not acting judicially
 Relying on this observation counsel argued that the object of an inquiry under section 171 A was to find out and establish the jural liability of the persons making the statement viz whether he had committed an offence or not and as such the inquiry was a judicial proceeding
In our view the argument is not worthy of acceptance
At the stage envisaged by section 171 A a Customs Officer is given the power to interrogate any person in connection with the smuggling of any goods which it is his duty to prevent
Such a person may have nothing to do with the smuggling of any goods although he may know where such goods are or who has or had them
Sub section
3 of section 171 A does not compel any person to make a statement but if he makes a statement he has to state the truth so as to avoid punishment under section 193 IPC
At that stage nothing may be known as 1 1  2 12 Bombay 36 at 42
833 0 whether an offence has been committed or who has committed t and the person interrogated at that stage certainly is not a person accused of or charged with an offence
He is merely called upon to give evidence to facilitate the inquiry
He is not a witness giving evidence in a court and his testimony will make him liable under section 193 IPC only because of the express provision of law in sub
section
4 of section 171 A Counsel also argued that as a Customs Officer according to all the decisions of this Court already mentioned is to act judicially a proceeding for recording evidence before him was a judicial proceeding
This wholly without any force because even administrative officers have to act judicially
Counsel further argued that a deeming provision in a statute was not necessarily designed to give an artificial construction to a word or a phrase but it might be used for other purposes also
He referred to the case of St Aubyn vs Attorney General1 where it was said The word deemed is used a great deal in modern legislation
Sometimes it is used to impose for the purpose of a statute an artificial construction for a word or phrase that would not otherwise prevail
Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain
Sometimes it is used to give a comprehensive description that includes what is obvious what is uncertain and what is in the ordinary sense impossible
 It was argued that the Legislature might well have used the word deemed in sub section
4 of section 171 not in the first of the above senses but in the second if not the third
In our view the meaning to be attached to the word deemed must depend upon the context in which it is used
In Lalji Haridas s case2 this Court went elaborately into the question as to the extent of this deeming provision which would have been wholly redundant if the word deemed  in section 171 A4 was used in any sense other than to give an artificial construction
The second branch of Mr Jethmalani s argument under this head was that the principle underlying section 132 of the Evidence Act was a principle of Common Law well known to criminal jurisprudence and as such was applicable even if section 132 in terms was not attracted
In this connection he referred us to certain observations of Subbarao J as he then was in Amba Lal vs The Union of India and Others3 where in his dissenting judgment on the interpretation of sections 168 and 171 A of the Act his Lordship had observed that To such a situation though the provisions of the Code of Criminal Procedure or the Evidence Act may 1  at 498
2  3  834 apply except in so far as they are statutorily made applicable the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply
 Counsel also referred us to the decision in Regina vs Benjamin Scott1
The question before the court in that case was whether the answers to the questions put to the defendant before the court of bankruptcy relating to his trade dealings and estate tending disclose a fraud of concealment of his property was admissible evidence against him on indictment charging him with altering mutilating and falsifying his books with intent to defraud his creditors
The examination was taken in conformity with section 117 of the Bankrupt Law Consolidation Act 12 and 13 Vict c 106 which enacted that a bankrupt may be examined by the court touching all matters relating to his trade dealings or estate or which may tend to disclose any secret grant conveyance or concernment of his lands etc
 There was no dispute that the questions put were relevant as touching matters relating to his trade etc
Delivering judgment in which three other Judges concurred Lord Campbell CJ held that the defendant was bound to answer the questions although by his answers he might criminal himself
According to the learned Chief Justice   and we think it would be contravention of the expressed intentions of the legislature to permit the bankrupt to refuse to answer such questions for even since the reign of Elizabeth successive statutes have been passed purporting to guard against frauds in bankruptcy and the bankrupt when called upon to answer questions respecting his estate and effects should not be allowed to avail himself of the common law maxim nomo tenetur se ipsum accusare
 With regard to the maxim relied on by the defendant s counsel he said But Parliament may take away this privilege and enact that a party may be bound to accuse himself that is that he must answer questions by answering which he may be criminated He further held that the maxim could not be treated as an implied proviso to be subjoined to the 117th section
Mr Jethmalani however relied on certain observations of Coleridge 1
in his dissenting judgment
In our view the maxim of the English Common Law can have no application here
Our law of evidence which is a complete Code does not permit the importation of any principle of English Common Law relating 1 169 English Reports page 909
835 evidence in criminal cases to the contrary
Section 2 of the Indian Evidence Act before its repeal by the Repealing Act 1 of 1938 provided as follows 2
On and from that day 1st September 1872 the following laws shall be repealed 1  All rules of evidence not contained in any statute Act or Regulation in force in any part of British India 2 All such rules laws and regulations as have acquired the force of law under the 25th section of the Indian Councils Act 1861  in so far as they relate to any matter herein provided for and 3  The enactments mentioned in the schedule hereto to the extent specified in the third column in the said schedule
But nothing herein contained shall be deemed to affect any provision of any Statute Act or Regulation in force in any part of British India and not hereby expressly repealed
 We may usefully refer to the judgment of the Privy Council in Sris Chandra Nandi vs Rakhalananda deceased1 where the Judicial Committee approved of the statement of the law contained in the judgment of the High Court reading It is to be noticed in this connection that section 2 1  of the Indian Evidence Act repeals the whole of the English common law on evidence so far as it was in force in British India before the passing of the Indian Evidence Act and that provision of the law in effect prohibits the employment of any kind of evidence not specifically authorised by the Act itself Lord Atkin who delivered the judgment of the Judicial Committee pointed out that evidence which was not admissible under the Indian Evidence Act could not be let in for the purpose of bringing out the truth and said What matters should be given in evidence as essential for the ascertainment of truth it is the purpose of the law of evidence whether at common law or by statute to define
Once a statute is passed which purports to contain the whole law it is imperative
It is not open to any Judge to exercise a dispensing power and admit evidence not admissible by statute because to him it appears that the irregular evidence would throw light 1 ILR 1941 1 Calcutta 468 836 upon the issue
The rules of evidence whether contained in a statute or not are the result of long experience choosing no doubt to confine evidence to particular forms and therefore eliminating others which it is conceivable might assist in arriving at truth
 The question there related to the admissibility of evidence which according to the Judicial Committee should not have been adduced
The question before us is somewhat different but if the Indian Evidence Act is a complete Code repealing all rules of evidence not to be found therein there is in our opinion no scope for introduction of a rule of evidence in criminal cases unless it is within the four corners of section 132 or some other provision of the Evidence Act
As the Act does not apply to interrogations by a Customs Officer exercising powers under section 171 A of the Sea Customs Act section 132 of the Evidence Act cannot be attracted
Lastly it was contended that section 171 A did not authorise interrogation of a subject to extract admissions from him which could be used against him on a future occasion
In aid of this proposition reliance was placed on a decision of the House of Lords in Commissioners of Customs and Excise vs Harz1
The main question there was whether the answers given by the respondents in the course of interrogation by Customs Officer were admissible in evidence
The power to
interrogate was said to be derived from the Finance Act 1946 section 20 3  which provided in substance that every person concerned with the purchase or importation of goods etc
shah furnish to the commissioners within such time and in such form as they may require information relating to the goods or to the purchase or importation thereof etc and shall upon demand made by any officer or other persons authorised in that behalf by the commissioners produce any
books or accounts or other documents of whatever nature relating thereto for inspection by that officer or person
On a construction of that provision Lord Reid was of the view that there was
nothing therein to require the trader to give answers which might incriminate him
His Lordship also observed that the section gave the officer no right to submit the respondents to prolonged interrogation they had to
undergo and the respondents could not have been prosecuted if they had refused to answer
His Lordship observed that the right of the CommiSsioners to require information was quite different and said If a demand for information is made in the proper manner the trader is bound to answer the demand within the time and in the form required whether or not the answer may tend to incriminate him and if he fails to comply with the demand he can be prosecuted
If he 1 837 answers falsely he can be prosecuted for that and if he answers in such a manner as to incriminate himself I can see no reason why his answer should not be used against him
Some statutes expressly provide that incriminating answers may be used against the person who gives them and some statutes expressly provide that they may not
Where as here there is no such express provision the question whether such answers are admissible evidence must depend on the proper construction of the particular statute
Although 1 need not decide the point it seems to me to be reasonably clear that incriminating answers to a proper demand under this section must be admissible if the statutory provision is to achieve its obvious purpose
 Prima facie these provisionsare against the contention of the appellant
In that case the House of Lords in effect held that the provision of law did not entitle the Commissioners to send a representative to confront the trader put questions to him orally and demand oral answers on the spot and that it does not entitle them to send their representative to subject the trader to a prolonged interrogation in the nature of a cross examination
 The provisions of section 171 A are in sharp contrast to the provision of law before the House of Lords
Here the statute expressly authorises officers of customs to secure the attendance of persons to give evidence or produce documents or things relevant in any enquiry in connection with the smuggling of goods
A limit is set to the right to obtain production in sub section 2 of the section and subsections 3 and 4 lay down that if a person summoned does not state the truth in such an examination he may be proceeded against under section 193 IPC for giving false evidence
Counsel also drew our attention to the new sections 107 and 108 of the where the power to examine persons has been given to all officers of customs by the first of the above mentioned sections and the power to summon persons to give evidence and produce documents as in section 171 A is given to a gazetted officer of customs under section 108 of the new Act
In our view this difference is immaterial for the purpose of this case and there is nothing in section 171 A which limits the right of interrogation to questions the answers whereto may not incriminate the person interrogated
The High Court considered at some length the question as to whether the statement of the accused under section 171 A4 should be considered as a whole or whether reliance could be placed upon portions thereof rejecting the rest
It was argued before the High Court that inasmuch as the statements were sought to be relied 838 upon as a confession the court was bound to take into account not only the portions containing admissions but also the explanations which followed
The High Court held that a statement under section 171 A did not stand at par with a confession so that it had to be taken as a whole or rejected as a whole
Even with regard to the statements portions of which are inculpatory against the maker and other portions which are not it has been held in a recent decision of this Court that the inculpatory portion can be accepted if the exculpatory portion is found to be inherently improbable vide Nishi Kant vs State of Bihar1
In this case the explanations contained in the statements were considered by the courts below and for reasons given they thought fit to reject the same and we see no reason to come to a different view
The Court then considered the case of the other accused and held  The net result is that all the appeals excepting that of accused No 3 Meghraj Gopaldas Jham fail and are hereby dismissed
Meghraj Gopaldas Jham s appeal is allowed and he is set at liberty
His bail bond will be cancelled


Summary:
The appellants and two others were prosecuted on a complaint by the Assistant Collector of Customs Bombay for the offence of conspiracy and substantive offences punishable under section 16781 of the Sea Customs Act and section 5 of the Imports and Exports Control Act 1947
The complaint was that all the accused knowingly and with intent to defraud the Government of India of duty payable on the import of goods andor to evade the prohibitions and restrictions for the time being in force under or by virtue
of the Sea Customs Act and of the Imports  Exports Control Act 1947 relating to the said import entered into a conspiracy in Bombay and other places during the period commencing from August 1958 and August 1959 to
acquire possession of and to be concerned in carrying removing and concealing and otherwise dealing with prohibited and restricted goods in very large quantities of high CIF value
The Presidency Magistrate held in regard to the appellants that they were parties to a conspiracy as alleged by the prosecution and convicted them under s20 B Indian Penal Code read with section 16781 of the Sea Customs Act and section 5 of the Imports and Exports Control Act 1947
The accused were also convicted of certain other charges individually framed against them
The High Court dismissed the appeal against the order of the Presidency Magistrate
The appellants were however granted a certificate under article 1341c of the Constitution
The main legal question that fell for consideration by this Court was whether the statements made by the accused appellants before the Customs Officer were inadmissible in evidence in view of the provisions cf section 171 A of the Sea Customs Act section 132 of the Evidence Act and article 203 of the Constitution
Questions raised on behalf of the appellants in their individual cases regarding the admissibility of certain items of evidence and circumstances against them also arose for consideration
HELD 1 A Customs Officer is not a court and therefore statements made before him do not attract the provisions of section 132 of the Evidence Act or article 203 oil the Constitution
a If the Legislature intended that the inquiry under section 171 A was to be considered a judicial proceeding not within the narrow limits therein specified but generally it could have used suitable words to express its intention
Although this Court gave a wider meaning to the expression judicial proceeding in Lalji Haridas  ease there is nothing in that judgment to warrant a still wider interpretation of that definition
83C 822 Maqbool Hussain vs State of Bombay   Thomas Dana vs State of Punjab 1959 Supp 1 SCR 274 286 Indo China Steam Navigation Co Ltd vs Additional Collector of Customs   referred to
Lalji Haridas vs State of Maharashtra   considered
b The Oaths Act had no application to
the present case
The preamble to the Act shows that it was an Act to consolidate the law relating to judicial oaths affirmations and declarations
The argument that a customs officer received evidence within the meaning of section 4 of the Act and therefore a person appearing before him was a witness under section 5 could not be accepted
Section 7 of the Act shows that oaths under the Act had to be administered according to such forms as the High Court might prescribe
The Customs Officer have nothing to
do with such forms and there was nothing on record to show that in the present case any oath was administered to the person making the statement
In Maqbool Hussain s case this Court stated expressly that the Customs Officers were not authorised to administer oath and the position was not altered by the insertion of section 171 A in 1955
832 D E 833 A C Observations in Queen Empress vs Tulla 12 Bombay 36
42 and St Alubvn vs Attorney General  498 discussed
c Our law of evidence which is a complete code does not permit the importation of any principle of English common law relating to evidence in criminal cases to the contrary
There is No scope for introduction of a rule of evidence in criminal cases unless it is within the four corners of section 132 or some other provision of the Evidence Act
834 H 836 B C Amba Lal vs Union of India  Ors
 and Ragina vs Benjamin Scott   referred to
Sris Chandra Nandi vs Rakhalananda deceased ILR 1941 Calcutta 468 applied
d The decision of the House of Lords in Harz s case does not support the proposition that under section 171 A the right of interrogation was limited to questions the answers where to may not incriminate the person interrogated
The section expressly authorises officers off customs to secure the attendance of persons to give evidence or produce documents or things relevant in any enquiry in connection with smuggling of goods
A limit is set to the right to obtain production in sub section
2 of the section and subss
3 and 4 lay down that  if a person summoned does not state the truth in such an examination he may be proceeded against under 8 193 IPC for giving false evidence
837 D E Commissioners of Customs and Excise vs Harz  explained
e In view of the decision of this Court in Nishi Kant vs State Bihar  the argument that statements of the accused under section 171 A4 should be considered only as a whole could not be accepted
The inculpatory position of a statement can be accepted if the exculpatory portion is found to be inherently improbable
In the present case the explanations contained in the statement were rejected by the courts below for reasons
given
There was No reason for this Court to take a different view
838 A B ii The High Court rightly held that an office copy of a premium debit note maintained by an insurance company in the usual course of its 823 business and attached to the office copy of the insurance policy was admissible in evidence under section 114 Illustration f of the Evidence Act
No objection could be allowed to
be raised on the ground that there was no proof of the preparation of the original premium note
825 H iii The evidence of an appraiser of customs off long experience regarding the CIF value of goods could not be rejected merely on the ground that his opinion was arrived at after making enquiries in the market and was therefore only hearsay
His testimony as to the valuation based on his knowledge of the market and experience had remained unshaken in cross examination and was rightly relied on by the High Court
827 D F