minal Appeal No 267 of 1968
Appeal from the judgment and order dated September 26 1968 of the Bombay High Court in Criminal Appeal No 244 of 1967
36 ASR Chari R Nagaratnam Janendra Lal and B R Agarwal for the appellant
H R Khanna and B D Sharma for the respondent
The Judgment of the Court was delivered by Vaidialingam J
This appeal by the first accused on certi ficate is directed against the judgment of the Bombay High Court dated September 26 1968 in Criminal Appeal No 244 of 1967 confirming his conviction and sentence passed against him by the Presidency Magistrate Mazgaon Bombay for offences under section 120B IPC read with section 135 of the Customs Act 1962 Act 52 of 1962 hereinafter to be referred as the Act and also under section 135 of the in respect of the articles claimed to have been recovered from his possession
The short point that arises for consideration in this appeal is whether section 24 of the Evidence Act is a bar to the admissibility in evidence of the statement exhibit T given by the appellant to the Customs Officers on a summons issued to him under section 108 of the Act
The appellant along with six others was charged under the sections mentioned above and after being found guilty was sentenced to undergo one year s rigorous imprisonment and to pay a fine of Rs 2000 for the charges under section 120B IPC read with section 135 of the Act
He was also sentenced to undergo one year s rigorous imprisonment and to pay a fine of Rs 2000 for the charge under section 135 of the Act
The sentences were directed to run concurrently
In default of payment of fine he was also sentenced to undergo further rigorous imprisonment for the period mentioned in the judgment of the Presidency Magistrate
The case against the appellant was that he and several other persons entered into a conspiracy during the period from June 1963 to the end of December 1963 to smuggle wrist watches and other luxury goods such as Nylon Textiles toilet requisites plying cards cigarette lighters saffron etc
from Dubai to India through Mechanized sailing vessel and land the said imported and smuggled goods surreptitiously at any coast near Bombay and then to bring the smuggled goods to Bombay by Motor vehicles
It was further alleged that in pursuance to the said conspiracy such articles were actually smuggled in the month of December 1963
The various parts played by the appellant along with the other accused had been given in the evidence of the prosecution witnesses
P W 19 Inspector in the Rummaging Division Town Intelligence in the Bombay Customs on receipt of information in or about December 21 1963 about the smuggling of the goods conducted searches in various places and seized several smuggled articles
37 During the pendency of the trial the third and the fifth accused died and the second accused who was present for some time later absconded necessitating separation of his trial
Some other accused could not be traced at all
Therefore the trial proceeded against the appellant and accused Nos 4 6 and 7
It is not necessary to refer to the pleas of accused Nos 4 6 and 7 as they have been acquitted of all the charges by the Presidency Magistrate
The appellant had filed a lengthy written statement on October 24 1966 denying the
charges levelled against him
He had stated that he was not in any manner concerned with any conspiracy
He also denied that any articles had been recovered by the Customs Officers from the houses mentioned by them and stated that in any event he had nothing to do with any of those articles
He pleaded that his brother Cama was inimical towards him and that the latter in connivance with the Customs authorities had foisted this criminal case against him making false allegations
The appellant alleged that he had left Bombay for Ajmer to pay his respects to the Darga on December 21 1963 and returned to Bombay on January 2 1964 when he was apprehended by the Customs authorities and kept in detention in the first instance till January 7 1964
During this period of detention he was conti nuously harassed and interrogated by P Ws 5 and 19 and forced to put his signature on January 7 1964 to a statement already got written and prepared by P W 5
He was threatened that if he did not put his signature on the said statement his mother and another brother will be prosecuted
He further alleged that it was represented to him that the statement to which he was being asked to put his signature was intended only to be used against the second accused and no part of it was meant to be used against him
It may be stated at this stage that the statement recorded from the appellant by P Ws 5 and 19 on January 7 1964 is exhibit T
The statement referes to various matters concerning his relationship with the other accused as well as his connection with several articles which had been seized and which were the subject of the charges
We do not think it necessary to refer to exhibit T in any great detail nor to the various seizures of articles made by the Customs authorities
It is enough to state that the conviction of the appellant has been substantially based on the confessional statement exhibit T after finding independent corroboration furnished by other evidence on record in respect of the statements contained in exhibit T Objections were taken to the admissibility in evidence of exhibit
T on the ground that it is hit by article 203 and sections 24 and 25 of the Evidence Act
All these objections were overruled both by the Presidency Magistrate as well as the High Court
The findings of the Presidency Magistrate and accepted by the High Court are 38 that exhibit T is a voluntary statement and it was a true disclosure made by the appellant
The allegation of the appellant that he was forced to Put his signature to exhibit T which had already been prepared by P Ws 5 and 19 and that he was induced to put his signature on the representation that it will be used only against
the second accused and not against the appellant was rejected
The further findings are that exhibit T was a voluntary statement made by the appellant and that his plea that he was kept under illegal detention from January 2 1964 to January 7 1964 was false
It has also been found that exhibit T is not hit either by article 203 or by sections 24 and 25 of the Evidence Act
The only contention that has been raised before us by Mr
AS R Chari learned counsel for the appellant is that in view of section 24 of the Evidence Act exhibit T the statement of the appellant recorded by the Customs authorities under the Act is not admissible in evidence at the trial for the offences in respect of which the appellant was charged and tried
His further contention is that as the conviction has been based substantially on the state ments contained in exhibit T the conviction is illegal
The other contentions based on article 203 and section 25 of the Evidence Act which were taken in the High Court have not been taken before us
In fact those contentions are no longer available to the appellant in view of the decisions of this Court
According to Mr Chari when the statement exhibit T was recorded by the Customs officials the appellant was in the position of an accused
It is in evidence that P W 5 who recorded the statement warned the appellant that he was bound to state the truth as the officer was conducting a judicial proceeding to which the provisions of sections 193 and 228 1
P C apply
This according to the learned counsel amounts to a threat and as the statement exhibit T has been procured on the basis of such a threat it is inadmissible in evidence
On the other hand Mr H R Khanna learned counsel for the State has referred us to the findings recorded by the Presidency Magistrate and accepted by the High Court regarding voluntary nature of exhibit T
The counsel also pointed out that the fact that P W 5 who recorded the statement exhibit T from the appellant informed him that he was bound to speak the truth as it was a judicial proceeding to which section 1931
P C applies does not amount to any threat in law so as to attract section 24 of the Evidence Act
We will now reter to the circumstances under which exhibit T was recorded as found by both the Courts
Consequent on in formation received by the Customs authorities several raids were conducted from December 21 1963
The appellant went to the Customs House at about 8 AM on January 7 1964
By about 39 830 AM summons under section 108 of the Act was served on him
From 1130 AM onwards to about 830 PM the process of recording of the statement exhibit T from the appellant continued excepting for a short break of about 21 hours for lunch tea and other requirements
The appellant was arrested immediately after his statement exhibit T was completed
The seizures of the entire contraband goods were completed by about December 25 1963
Though the attention of the appellant was drawn to sub section 4 of section 108 of the Act he was not informed or warned that his statement was likely to be used in the event of any prosecution against him for the said offence
Undoubtedly exhibit T contained various incriminating facts regarding the complicity of the appellant with the offences alleged against him
The Inspector of Customs P W 5 who recorded the statement exhibit T and P W 19 have both admitted that they questioned the appellant till the statement exhibit T was finally completed at 830 PM on January 7 1964
Both of them have also asserted that they had not given any threat or offered any inducement to the appellant before the statement exhibit T was made
P W 5 has deposed that he drew the attention of the appellant to the last paragraph of the summons issued under section 108 of the Act
In fact in exhibit T the appellant states that he had received summons No 3 of 1964 dated January 7 1964 issued to him under section 108 of the Act
He has further stated that he had read the summons and that he had further understood that giving false evidence is an offence punishable under section 193 of the Indian Penal Code
P W 5 has further deposed that he had explained to the appellant the provisions of section 1931
P C and that the statement was being recorded as if he was in court and that the appellant was bound to speak the truth and that if he made a false statement he would be prosecuted
Based upon these answers of P W 5 Mr Chari urged that it is clear that P W 5 has administered a threat to the appellant and it was in consequence of such a threat that the appellant gave the statement exhibit T and thereby has placed himself in a grave jeopardy of action being taken against him under the Act
Before we refer to section 24 of the Evidence Act it is desirable to advert to the relevant provisions of the 
Sections 107 and 108 are as follows  section 107 Power to examine persons Any officer of customs empowered in this behalf by general or special order of the Collector of Customs may during the course of any enquiry in connection with the smuggling of any goods a require any person to produce or deliver any document or thing relevant to the enquiry 40 b examine any person acquainted with the facts and circumstances of the case
section 108
Power to summon persons to give evidence and produce documents 1 Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods
2 A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned
3 All persons so summoned shall be bound to attend either in person or by an authorized 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 pro duce such documents and 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 section
4 Every such enquiry a aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code
 Section 122 of the Act deals with confiscation of goods and levy of penalty
Section 124 deals with the procedure to be adopted before ordering the confiscation of any goods or imposing any penalty on any person
Section 135 deals with prosecution before a criminal court in the circumstances mentioned in cls a and b and that prosecution is without prejudice to any action taken under the Act
This Court had to consider in Romesh Chandra Mehta vs State of West Bengal1 whether an officer of customs under the was a police officer and whether the statements made to him were hit by article 203 of the Constitution and inadmissible in evidence under section 25 of the Evidence Act
A further question also arose whether an officer of customs acting 1 41 under the Act is in any event a police officer within the meaning of section 25 of the Evidence Act and hence the confessional statements made to him were inadmissible in evidence
After a consideration of the scheme of the  this Court held that a Customs Officer does not exercise when inquiring into a suspected infringement of the  powers of investigation which a police officer may in investigating the commission of an offence and that he is invested with the power to enquire into infringements of the Act primarily for the purpose of adjudicating about forfeiture and penalty
Further it was held that the said officer has no power to investigate an offence triable by a Magistrate and that he can only make a complaint in writing before a competent Magistrate and hence section 25 of the Evidence Act has no application
It was further held that the steps taken by the Customs Officer are for the purpose of holding an enquiry under the and for adjudging confiscation of goods dutiable or prohibited and imposing penalties and that the Customs Officer does not at that stage accuse the person suspected of infringing the provisions of the with the cornmission of any offence
Finally it was held that a person examined under section 17 1 A of the does not stand in the character of an accused person inasmuch as there is no formal accusation made against him by any person at that time and hence any statement made by such a person to a Customs Officer is not hit by article 203 of the Constitution
The scheme of the Act was also considered in the said deci sion and some points of difference between the Act and the were noted
But notwithstanding the slight difference in the powers exercised by a Customs Officer under the Act it was held that the Customs Officer under the Act is not a police officer within the meaning of section 25 of the Evidence Act
It was emphasized that the proceedings taken by him are for the purpose of holding an enquiry into suspected cases of smugly and that the Customs Officer is for all purposes an officer of the Revenue
It was laid down that as the Customs Officer under the Act is not a police officer the statement made before him by a person who is arrested or against whom an enquiry is made are not covered by section 25 of the Evidence Act
It was further laid down that until a complaint is filed before a Magistrate the person against whom an enquiry is commenced under the does not stand in the character of a person accused of an offence under section 135
The discussion on this aspect is wound up by this Court as follows   
The Customs Officer even under the Act of 1962 continues to remain a revenue officer primarily concerned with the detection of smuggling and enforcement and levy of proper duties and prevention of entry 42 of proper duties and prevention of entry into India of dutiable goods without payment of duty and of goods of which the entry is prohibited
He does not on that account become either a police officer nor does the information conveyed by him when the person guilty of an infraction of the law is arrested amount to making of an accusation of an offence against the person so guilty of infraction
Even under the Act of 1962 a formal accusation can only be deemed to be made when a complaint is made before a Magistrate competent to try the person guilty of the infraction under sections 132 133 134 and 135 of the Act
Any statement made under sections 107 and 108 of the by a person against whom an enquiry is made by a Customs Officer is not a statement made by a person accused of an offence
 From this decision it follows that a Customs Officer conduc ting an enquiry under sections 107 or 108 of the Act is not a police officer and the person against whom the inquiry is made is not an accused and the statement made by such a person in that inquiry is not a statement made by a person accused of an offence
The same position has been reiterated in the latter case of Illias vs Collector of Customs Madras1 Now coming to section 24 of the Evidence Act it runs as follows Section 24  Confession caused by inducement threat or promise when irrelevant in criminal proceeding  A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement threat or promise having reference to the charge against the accused person proceeding from a person in authority and sufficient in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him
 To attract the provisions of this section the following facts have to be established  a that the confession has been made by an accused person to a person in authority b that it must appear to the Court that the confession
has been obtained by reason of any inducement threat or promise proceeding from a person in authority 1 1969 2 section C R 613
43 c that the inducement threat or promise must have reference to the charge against the accused person and d the inducement threat or promise must in the opinion of the Court be such that the accused in making the confession believed or supposed that by making it he would pin any advantage or avoid any evil of temporal nature in reference to the proceedings against him
We have already pointed out that when the appellant ap peared before the Customs Officers on the morning of January 7 1964 he was served with a summons under section 108 of the Act and that it was after the receipt of the summons the appellant gave the statement exhibit T From the decision in Ramesh Chandra Mehta vs State of West Bengal1 it is clear that when an inquiry is being conducted under section 108 of the Act and a statement is given by a person against whom the inquiry is being held it is not a statement made by a person accused of an offence and the person who gives the statement does not stand in the character of an accused person Therefore the first essential fact to be established to attract section 24 referred to above is lacking in this case as the appellant was not an accused person
We have already stated that it has been found by both the Courts that the statement exhibit T is a voluntary statement made by the appellant
Mr Chari attempted to bring the statement exhibit T under section 24 of the Evidence Act because of P W 5 having informed the appellant that the statement was being recorded as if he was a court and that the appellant was bound to speak the truth and that if any false statement is made he would be prosecuted
P W 5 has also stated that he explained section 193 1
P C to the appellant
According to the learned counsel this conduct of P W 5 clearly amounts to a threat being administered to the appellant
It is not in dispute that P W 5 who recorded the confes sion is a person in authority within the meaning of section 24 of the Evidence Act
But the question is whether when P W 5 drew the attention of the appellant to the fact that the inquiry is a judicial proceeding to which section 1931
P C applies and that the appellant must speak the truth it can be considered to be a threat  proceeding from a person in authority under the section
We are not inclined to accept the contention of Mr Chari that in the circumstances mentioned above any threat has proceeded from a person in authority to the appellant in consequence 1 44 of which the statement exhibit T was given
Section 108 of the Act gives power to a Customs Officer of a gazetted rank to summon any person to give evidence in any inquiry in connection with the smuggling of any goods
The inquiry made under this section is by virtue of sub section 4 deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code
A person summoned under section 108 of the Act is bound to appear and state the truth when giving evidence
If he does not answer he would render himself liable to be prosecuted under section 228 1
If on the other hand he answers and gives false evidence he would be liable to be prosecuted under section 193 I P C for giving false evidence in a judicial proceeding
In short a person summoned under section 108 of the Act is told by the statute itself that under threat of criminal prosecution he is bound to speak what he knows and state it truthfully
But it must be noted that a compulsion to speak the truth even though it may amount to a threat emanates in this case not from the officer who recorded the statement but from the provisions of the statute itself
What is necessary to constitute a threat under section 24 of the Evidence Act is that it must emanate from the person in authority
In the case before us there was no such threat emanating from P W 5 who recorded the statement of P W 19 who was guiding the proceedings
On the contrary the officers recording the statement were only doing their duty in bringing to the notice of the appellant the provisions of the statute
Even if P W 5 had not drawn the attention of the appellant to the fact that the inquiry conducted by him is deemed to be a judicial proceeding to which section 193 I P C applies the appellant was bound to speak the truth when summoned under section 108 of the Act with the added risk of being prosecuted if he gave false evidence
Further it is to be seen that it is not every threat inducement or promise even emanating from the person in authority that is hit by section 24 of the Evidence Act
In order to attract the bar it has to be such an inducement threat or promise which should lead the accused to suppose that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him
In the case before us what is it that the appellant has been told  He has been told that the law requires him to tell the truth and if be does not tell the truth lie may be prosecuted under section 193 I P C for giving false evidence
we have held does not constitute a threat under section 24 of the Evidence Act
The plea of the appellant was that he was compelled to make the statement under the threat that otherwise his mother and another brother will be prosecuted
He has further stated that he was induced to make the statement on the belief that it will be used only against the second accused and not against him
These pleas of the appellant have been disbelieved by both the 45 trial court and the High Court
 Therefore it follows that even assuming that there was an inducement or threat the appellant had no basis for supposing that by making the statement he would gain any advantage or avoid any evil with reference to the proceedings in respect of which an inquiry was being conducted by the Customs Officers
Therefore even on this ground also section 24 of the Evidence Act has no application
For all the above resons we hold that by the mere fact that the Customs Officer P W 5 who recorded the statement exhibit T explained the provisions of section 193 1
P C and informed the appellant that he was bound to tell the truth and that he is liable to be prosecuted if he made a false statement there was no threat given to the appellant
We accordingly hold that section 24 of the Evidence Act has no application and the statement exhibit T was properly admitted in evidence in the trial of the appellant
Both the Courts have found that there is also independent evidence to corroborate the truth of the statements in exhibit T
The question of admissibility of exhibit T in evidence having been decided against the appellant no other point has been argued before us
In the result the appeal fails and is dismissed
KBN Appeal dismissed


Summary:
The appellant was convicted for offences under the 
He challenged the legality of his conviction on the ground that his statement to the customs authorities made on a summons issued under s 108 of the Act and on which the conviction was substantially based was not admissible in evidence in view of section 24 of the Evidence Act
It was contended that the statement was procured by threat in as much as the officer who recorded the statement warned the appellant that he was bound to state the truth as the officer was conducting a judicial proceeding to which sections 193 and 228 of the Penal Code applied
Dismissing the appeal HELD i A statement by a person against whom an inquiry is being held under section 108 is not a statement made by a person accused of an offence
Therefore the essential ingredient to attract section 24 namely that the confession must be made by an accused person is lacking in this case143 D Romesh Chandra Mehta vs State of West Bengal and Illias vs Collector of Customs Madras   relied on
ii A compulsion to speak the truth emanates in this case riot from the officers who recorded the statement but from the provisions of the statute itself
What is necessary to constitute a threat under section 24 of the Evidence Act is that it must emanate I e from  the person in authority
The officers recording the statement were only doing their duty in bringing to the notice of the appellant the provisions of the statute
44 C E iii To be told that the law required him to tell the truth and if he did not tell the truth he was liable to be prosecuted under section 193 Penal Code for giving false evidence did not constitute a threat under section 24 of the Evidence Act
iv Even assuming that there was an inducement or threat the appellant bad no basis for supposing that by making the statement he would gain any advantage or avoid any evil with reference to the proceedings in respect of which an inquiry was being conducted by the customs officers
Therefore even on this ground section 24 of the Evidence Act has no application
44 G H