N Criminal Appeal No 234 of 1971
From the Judgment and order dated the 26 3 71 of the Bombay High Court at Bombay in Criminal Appeal No 1434 of 1970
K R Chaudhury and K Rajendra Chaudhury for the Appellant
H R Khanna and M N Shroff for Respondent
The Judgment of the Court was delivered by SARKARIA J
Veera Ibrahim appellant was accused No 2 in the complaint filed by Assistant Collector of Customs Preventive Department Bombay before the Chief Presidency Magistrate for his prosecution along with one Abdul Umrao Rauf accused No 1 in respect of offences under sections 135a and 135b of the and section S of the Imports and Exports Control Act 1947
The trial Magistrate convicted both the accused on all the three charges and sentenced them to two years rigorous imprisonment on each count with a direction that the sentences would run concurrently
Against that judgment two separate appeals were filed by the convicts in the Bombay High Court which acquitted both the accused of the offences under section 5 of the Imports and Exports Control Act 1947 and under section 135b of the  but maintained their conviction on the charge under section 135a of that Act reducing the sentence to one years rigorous imprisonment The High Court however granted a certificate under Article 1341 c of the Constitution on the basis of which this appeal has been filed
The main question with reference to which the certificate was granted by the High Court was whether section 108 of the is ultra vires the provisions of cl
3 of Article 20 of the Constitution  But Mr Chaudhry appearing for the appellant does not press this question now before us
The first contention canvassed by the Counsel is that on the facts and circumstances of the case the appellant s statement recorded under section 108 of the  on the foot of which the appellant has been convicted was hit by clause 3 of Article 20 because at the time of making that statement the appellant was accused of any offence under section 124 of the Bombay Police Act and the statement was obtained under compulsion of law
Stress has been placed on the fact that the appellant was in fact arrested by the police on a charge under section 124 of the Bombay Police Act and the goods were seized under a Panchnama prepared by them in the course of investigation
In this connection reference has been made to 674 M P Sharma and Ors
vs Satish Chandra District Magistrate Delhi and Ors1 On the other hand Mr H R Khanna appearing for the respondent submits that the words accused of any offence occurring in article 203 take in only that person against whom a formal accusation of an offence has been levelled
Two other conditions for the applicability of this Clause according to the Counsel are a that the testimony in question had been obtained under compulsion and b it relates to the offence of which he stands formally accused
These conditions it is maintained were not fulfilled in the present case
Clause 3 of Article 20 provides No person accused of any offence shall be compelled to be a witness against himself
From an analysis of this clause it is apparent that in order to claim the benefit of the guarantee against testimonial compulsion embodied in this clause it must be shown firstly that the person who made the statement was accused of any offence secondly that he made this statement under compulsion
The phrase accused of any offence has been the subject of several decisions of this Court so that by now it is well settled that only a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in his prosecution would fall within its ambit
In R C Mehta vs State of West Bengal this point came up for consideration in the context of a statement recorded by an officer of Customs in an enquiry under section 171 A of the Sea 
One of the contentions raised was that a person against whom such an enquiry is made is a person accused of an offence  and on that account he cannot be compelled to be a witness against himself and the statement obtained or evidence collected under the aforesaid provision by the officer of Customs is inadmissible
This contention was repelled
Shah J speaking for the Court made these apposite observations Under section 171 A of the Sea  a Customs officer has power in an enquiry in connection with the smuggling of goods to summon any person whose attendance he considers necessary to give evidence or to produce a document or any other thing and by cl
3 the person so summoned is bound to state the truth upon any subject respecting which he is examined or makes statements and to produce such documents and other things as may be required
The expression any person includes a person who is suspected or believed to be concerned in the smuggling of goods
But a person arrested by a Customs officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not when called upon by the Customs officer to make a statement or to produce a document or thing a person accused of an 675 offence within the meaning of article 203 of the Constitution
The steps taken by the Customs officer are for the purpose of holding an enquiry under the Sea and for adjudging confiscation of goods dutiable or prohibited and imposing penalties
The Customs officer does not at that stage accuse the person suspected of infringing the provisions of the Sea with the commission of any offence
His primary duty is to prevent smuggling and to recover duties of customs when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea he is not accusing the person of any offence punishable at a trial before a magistrate
After a survey of case law the Court pointed out the circumstances the existence of which is ordinarily necessary to clothe a person with the character of a person accused of an offence Normally a person stands in the character of an accused when a First Information Report is lodged
against him in respect of an offence before an officer competent to investigate it or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial the offence
Where a Customs officer arrests a person and informs that person of the grounds of his arrest which he is bound to do under article 221 of the Constitution for the purpose of holding an enquiry into the infringement of the provisions of the Sea which he has reason to believe has taken place there is no formal accusation of an offence
In the case of an offence by infringement of the Sea and punishable at the trial before a Magistrate there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate
The above quoted observations are a complete answer to the contention of the appellant
In the light of these principles it is clear that when the statement of the appellant was recorded by the Customs officer under section 108 the appellant was not a person accused of any offence under the 
An accusation which would stamp him with the character of such a person was levelled only when the complaint was filed against him by the Assistant Collector of Customs complaining of the commission of offences under section 135a and section 135b of the 
True that the appellant was arrested by the police on December 12 1967 on suspicion of having committed an offence under section 124 of the Bombay Police Act and a Panchnama of the packages in the truck was also prepared
But the factual ingredients of that offence are materially different from those of an offence under the 
This will be apparent from a bare reading of section 124 of the Bombay Police Act which provides  Whoever has in his possession or conveys in any manner or offers for sale or pawn anything which there is 676 reason to believe is stolen property or property fraudulently obtained shall if he fails to account for such possession or to act to the satisfaction of the Magistrate on conviction be punished with imprisonment for a term which may extend to one year but shall not except for reasons to be recorded in writing be less taken one month and shall also be liable to the fine which may extend to five hundred rupees
Even in respect of that offence the police did not register any case or enter any FIR which normally furnishes a foundation for commencing a police investigation
The police did not open the packages or prepare inventories of the goods packed therein
Indeed the police appear to have dropped further proceedings
They did not take any steps for prosecuting the appellant even for an offence under the Bombay Police Act 1951
They informed the customs authorities who opened the packages inspected the goods and on finding them contraband goods seized them under a Panchnama
The Customs authorities called the appellant and his companion to the Customs House took them into custody and after due compliance with the requirements of law the Inspector of Customs questioned the appellant and recorded his statement under section 108 of the 
Under the circumstances it was manifest that at the time when the Custom officer recorded the statement of the appellant the latter was not formally accused of any offence
 The High Court was therefore right in holding that the statement recorded by the Inspector of Customs was not hit by Article 203 of the Constitution
The next question to be considered is whether this statement was hit by section 24 of the Evidence Act
The contention is that this statement was obtained under compulsion of law inasmuch as he was required to state the truth under threat of prosecution for perjury
For reasons that follow we are unable to sustain this contention
To attract the prohibition enacted in section 24 Evidence Act these facts must be established i that the statement in question is a confession ii that such confession has been made by an accused person iiithat it has been made to a person in authority iv that the confession has been obtained by reason of any inducement threat or promise proceeding from a person in authority v such inducement threat or promise must have reference to the charge against the accused person vi the inducement threat or promise must in the opinion of the Court be sufficient to give the accused person grounds which would appear to him reasonable for 677 supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him
In the present case facts i iv and vi have not been established
Firstly the statement in question is not a confession  within the contemplation of section 24
It is now well settled that a statement in order to amount to a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence
An admission of an incriminating fact howsoever grave is not by itself a confession
A statement which contains an exculpatory assertion of some fact which if true would negative the offence alleged cannot amount to a confession see Pakala Narayana vs R Plavinder Kaur vs State of Punjab Om Prakash vs State
A perusal of the statement exhibit I made by the appellant before the Inspector of Customs would show that it contained exculpatory matter
Therein the deponent claimed that he was not aware that the packages which were loaded in the truck were contraband goods and alleged that the goods were not loaded under his instructions
The deponent claimed to be an innocent traveller in the truck when he said I did not ask Mullaji driver what goods were being loaded in his lorry
Mullaji was only my friend and I was not aware of any of his mala fide activities
Moreover the incriminating facts admitted in this statement do not even if taken cumulatively amount to admission of all the facts which constitute any offence
To bring home an offence under section 135 of the  in addition to the facts admitted in exhibit I it had to be established further that these goods were contraband goods
For these reasons it could be said beyond doubt that the statement exhibit 1 was not a confession within the meaning of section 24 Evidence Act
Secondly it has not been shown that the Customs officer though a person in authority had offered any inducement or held out any threat or promise to the appellant
Christopher Soares the Inspector of Customs P W 4 testified that no threats coercion or inducements were used and that the statement exhibit 1 was made by the appellant voluntarily
While it may be conceded that a person summoned by an officer of Customs to make a statement under section 108 of the  is under compulsion of law to state the truth the compulsion there under assuming it amounts to a threat does not proceed from a person in authority within the contemplation of section 24 but emanates from law
Thirdly the mere fact that the Inspector of Customs had before recording the statement warned the deponent of the possibility of his 678 prosecution for perjury in case he did not make the statement truthfully cannot be construed as a threat held out by the officer which could have reasonably caused the person making the statement to suppose that he would by making that statement gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him for smuggling
In view of what has been said above we have no hesitation in holding that the statement exhibit 1 was not barred under section 24 Evidence Act
The statement exhibit P 1 was clearly admissible under section 21 Evidence Act as an admission of incriminating facts
Lastly Mr Chaudhry tried to contend that the incriminating facts admitted in exhibit 1 taken along with the other facts appearing in the evidence of prosecution witnesses were insufficient to establish an offence under section 135 against the appellant because no notification under sub section
2 of section 123 of the had been issued in respect of the import of the goods of the kind seized and the aid of the statutory presumption under that section was not available to the prosecution
We are unable to accept this contention
While it is true that in the absence of the requisite notification the statutory presumption under section 123 could not be invoked by the prosecution the circumstances established unerringly raise an inference with regard to all the factual ingredients of an offence under section 135b read with section 135ii of the 
In exhibit 1 which was proved by PW 4 it is admitted that these packages which were later found to contain contraband goods by the Customs authorities were surreptitiously loaded in the truck under cover of darkness at Reti Bunder sea shore from the side of sea side wall in the presence of the appellant and thereafter the first accused took the wheel while the appellant sat by his side in the truck and drove towards Sandhurst Station
It is further admitted that some Bania paid Rs 2000 to the appellant which was meant to be given to the driver of the truck
Unfortunately the truck skidded near the Dongri Police Station and came to a stop
On hearing the impact of the accident the police came out took both the accused into the Police Station and seized the truck and the goods
In short the
appellant had clearly admitted that these packages containing the contraband goods were imported surreptitiously from Reti Bunder under cover of darkness
It was further established de hors the statement of the appellant that these packages on opening by the Customs officer were found to contain contraband goods of foreign make
They were brand new articles packed
The circumstances of the arrest of the appellant while escaping 679 from the truck the seizure of the truck and the goods the contraband nature of the goods the fact that at the time of the seizure the goods were in the charge of the appellant the fact that no duty on these goods had been paid the seizure of Rs 2000 as cash from the appellant etc were proved by evidence aliunde rendered by P Ws 1 and 2
To some extent the hostile witness PW 5 also supported the prosecution
The circumstances established unmistakably and irresistibly pointed to the conclusion that the appellant was knowingly concerned in a fraudulent attempt at evasion if not fraudulent evasion of duty chargeable on those contraband goods
In the result the appeal fails and is dismissed
MR Appeal dismissed


Summary:
A truck was seized with its content of contraband goods for foreign make on which no duty had been paid
The appellant who was in charge of the goods was arrested while escaping from the truck and Rs 2000 were seized from him
His statement was recorded under section 108 
The appellant and the driver of the truck
were convicted by the Trial Court under Ss 135 a and 135 b of the  and section 5 of the Imports  Exports Control Act 1947
The High Court upheld their conviction under section 135 a of the  and acquitted them of the other charges
In appeal by leave granted under article 1341 c of the Constitution the appellant contended before this Court that his statement taken under section 108  could not be used against him firstly as it was hit by article 203 of the Constitution on account of its having been taken while he was already an accused  under section 124 Bombay Police Act and secondly
it was barred under section 24 Evidence Act the same being a confession obtained under compulsion of law
It was also contended that in the absence of the requisite notification under section 1232  the statutory presumption under section 123 could not be invoked by the prosecution and without the same the facts of the case were insufficient to establish an offence against the appellant under section 135 
Dismissing the appeal the Court  HELD 1 To claim the benefit of the guarantee against testimonial compulsion embodied in clause 3 of article 20 it must be shown firstly that the person who made the statement was accused of any offence  secondly that he made this statement under compulsion
Only a person against whom a formal accusation relating to the commission of an offence has been levelled would fall within its ambit
674C D RC Mehta vs State of West Bengal 1969 2 SCR 461 applied
2 To attract the prohibition enacted in section 24 Evidence Act these facts must be established
i that the statement in question is a confession ii that such confession has been made by an accused person iiithat it has been made to a person in authority iv that the confession has been obtained by reason of any inducement threat or promise proceeding from a person in authority
v Such inducement threat or promise must have reference to the charge against the accused person vi The inducement threat or promise must in the opinion of the Court be sufficient to give the accused person ground which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him
676F H 677A 673 3 A statement in order to amount to a confession  must either admit in terms the offence or at any rate substantially all the facts which constitute the offence
An admission of an incriminating fact however grave is not by itself a confession
A statement which contains an exculpatory assertion of some fact which if true would negative the offence alleged cannot amount to a confession 
677A C Pakala Narayana vs R 66 I A 66 Palvinder kaur vs State of Punjab  Om Prakash vs State AIR 1960 SC 409 referred to