TUKARAM G. GAOKAR

R. N. SHUKLA & ORS.

March 8, 1968

[M. HIDAYATULLAH, C.J., R. S. BACHAWAT,

C. A. VAIDIALINGAM, K, S. HEGDE

AND A. N. GR.OVER, JJ.)

The Sea Customs A.ct, 1962, ... Ill, 112, 135-PrDHCutlon Hfo11 Magistrate for smuggling gold under •· 135-Colkctor of Custonv also iJsuing notice under ss. 111and112 to sholv cause why contrdband gn/d should not he confiscated and penlllly iniposed-Jssue of notice whether constitutes co11te11ipt of cri111inal court-1vhe1her contravenes Art, 20(3) Constitution of India, 1950.

Jn Septcml>r 1966 the Customs authorities seized certain contrabanJ gol<l from the possession of the appellant. Thereafter the appellant along with certain other persons was charged befor~ a Magistrate for oJfcnccs

in cQnncction with the smuggling of gold under s. 120 B of the Indian Penal Code read with s. 135 of the Sea Customs Act, r. 131-11 of the Defence of India Ruros and s. 8 of the Foreign Exchange Regulation Act.

Before the commencement of the trial the Assistant Collector of Customs issued a notice to the appellant to show cause why the gold should not he confiscated under s. J 11 of the Sea Customs Act and why a penahv .,.hould not be imposed on him under s. 112 of the same Act. Thereupon

tbe appellant under Art. 226 of the Constitution a<ked the High Court for a writ of prohibition restraining proceedings for imposition of P'naJty .on him in pursuance of the aforesaid notice.

The contention as tht 1hc thrcatenc<l proceedings (i) amounled to contempt ot the MagistnH..:

hcforc whom the trial was imminent and (ii) were in violation of Ar:.

20(3) inasmuch as he \•louJd be compelled to go into the witness ho\: to rebut the evidence of an accomplice witness. The High Court rejccll!<l 1hcsc contentions, but granted a certificate to appeal to this Court.

HELD: (i) Identical issues arise in proceedin~ for impMition of penalty under s. I 12(b) of the Sea Customs Act, 1962 and in a !, rial for an offence punishable under s. 135(b) of the sam~ Act.

Jf a pCrson incurs liability under s. 111 he may be proceeded against under s. 112lhl and also under s. 135(b). Similar issues arise in the trial for contraven

tion of r. 131 B of the Defence of India Rules and s. 8 of the Foreign Exchange Regulation Act. The customs officers will have to enquire inlo these issues though the same issues will later be tried by the criminal court.

Seclion 127 expressly provides that the award of a penalty under s. J 12 is not bar to th-~ infliction of punishment under s. 135.

Th~ offender may be punished under s. 135 without prejudice to any othr action that may he taken under the Act, [424 E--HJ

The Customs Officers were acting hona fide and discharging thir statutory duties under ss. 111and112:. The power of adjudicating penahr and confiscation under those sections is vested in them alone. The criminal court cannot make this adjudication. The issue of the show..cal1s~

notice and proceedings theundcr were authorised by the Act and v; cre 110t calculated to obstruct the cou'rsc of justice in any Court. There "'as

no justification for holding that the proceedings amounted lo contempt of Court. 1425 Cl

Reg v. Gmy, [19j)O] 2 Q.B. 36, Arthur Reginald Perera v. 7"/ie King, [1951) A.C. 482, Saihnl K11m.ar Gupta v. B. K. Sen, [1961] 3 S.C.R. 460 :mJ S. S. Rny v. Stcl, le of Omsa, A.l.R. 1960 S.C. 190, referred to.

' (ii) The customs officers have a discretion to stay the ptocecdio~ under ss. 111 and 112 during the pendency of the trial in the criminal court.

In 1he exercise of their disc'rction they had refused to stay the proceedings, It was not shown that thir action Was 111ala fide or arbitrary.

The Court would not issue a 11uiudanuu to control this' exercise of their di, crction, [425 Hl ~

dii) The proceedings unde'r ss. 111 and 112 could not be said to be in violation of Art. 20(3) 06' he Constitution, The possibility of h:.aving to en1cr tho witness-box to rebut the evidence of an accomplice y; as no! such a compulsion as would attract the, provisions of proceeding_, from another person or authority. If an accused voluntarily gives evidence. in his defence he is not being compelled to be a witness against himself. [The Court however obs~-ed that~ different considerations might arise if the 01ppellant was summoned by the clistoms authorities under s. 108 to give evidence in tile proceedinK-'! under ss. 111 and 112.) [4,26 D-F)

C1v1L APPELLATE JURISDICTIO!'f : Civil Appeal No. (591 of 1967. •

Appeal from' the judgment and order dated March 31,-1967 - of the Bombay High Court in Appeal No. 11 of 1967.

Jethmalani, N. H. Hingora11i and K. Hingora'ni, for the appellant ·

K. G. Khandalawa/a, H. R. Khanna and S. P. Nayar, for the respondents.

The Judgment of the Court was delivered by Bacha"fl'.at, J. This is an appeal by certificate against an order of the Bombay High Court on Letters Patent appeal confinning an order of dismissal of a writ petition by which the appellant Tukaram G. Gaol}; lr asked for a wi:it of prohibition restraining proceedings for imposition of a penalty on him for alleged complicity in the smuggling of gold in pursuance of a notice dated November 16, 1966 issued under s. 112 of the sea Customs Ac\,

l 962.

The appellant's contention is that the threatened proceedings amount fo contempt of the magistriite before whom his trial for offences in connection with the smuggling 9f gold is imininent are and in vioJation of the constitutional protection of Ari.'20(3) of the Constitution. The High Court rejected these

cOntentions~ The main facts may be stated briefly. On septembef 14 and 17, 1966, "the customs officers tii1ded a number of premises in the cit}i of Bombay" and seized 65,860" tofas of foreign gold and some gold bangles worth aboilt Rs. 1, 14,20,270. On September

14, 1966, "the appellant was arrested on charges of complicity in the .. smuggling of gold and other articles. After several remands,

'"$,)

he was released on bail. On October 6, 1966, the customs officers lodged a first information report charging the appellant, .one John D'Sa and other persons with offences in connection with the smuggling of gold under s. 120B of the Indian Penal Code read with s. J 35 of the Sea Customs Act, r. 131-B of the Defence of India Rules and s. 8 of the Foreign Exchange Regulation Act.

The trial of the appellant on these charges before a magistrate is imminent. On November 16, 1966, the Assistant Collector of Customs, Preventive Department, Bombay issued a notice to the appellant to show cause why the gold should not be confiscated under s. 111 of the1Sea Customs Act and why a penalty should not be imposed on him under s. 112 of. the same Act. The notice alleged that he acquired possession of an<fwas concerned in carrying, removing, depesiting, harbouring, keeping, concealing and dealing With gold which he knew or had reason to believe was liable to confiscation under s. 111 and that in relation to such gold he was knowingly concerned in fraudulent evasion of customs duties and of the prohibitions imposed under the laws in force.

The notice relied on several. documents and the statenu:nt of John D'Sa.

The appellant disclaims any interes! in the gold seized by the customs officers. He resisis the imposition of penalty on him for alleged complicity in the smuggling.

It is quite clear that iden'.ical issues arise in proceedings for imposition of penalty under s. 112(b) of the Sea Customs Act, 1962 and in a trial for an offj'nce punishab1e under s. 135 (b) of the same Act. If any person acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing wih any goods which he knows or. has reason to believe are liable to confiscation under s. 111, he may be proceeded against under s. 1 l2(b) and also under s. 135(b). On the same set of facts, a penalty may be imposed on the offender under s. 112(b) and he may be punished with imprisonment and fine under s. 135 (b). Similar issues arise in !he trial of offences for contravention of r. 131-B of the Defence of India Rules ands. 8 of the Foreign Exchange Regulation Act.

The customs officers will have to enquire :into these issue-, though the same issues will

later be tried by the criminal court. The Sea Customs Act contemplates parallel proceedings of.- thi& kind. Section 127 expressly provides that the award of a penalty under s. 112 is not a bar to the infliction of punishment under s. 135. The offender may be punished under s. 135 without prejudice to any other action that may be taken under the Act. The customs officers are empowered to confiscate smuggled goods and to levy penalties on persons concerned with the smuggling. They may initiate proceedings for confiscation of the goods and for imposition of the

penalty though the trial of those persons in a criminal. court for connected offences is imminent. The initiation and continuance of those proceedings in good faith cannot amount to contempt of the criminal court. To constitute contempt of court, there must be involved some "act done or writing published calculated to bring

a court or a judge of the court into contempt or to lower his authority" or something "cakulated to obstruct or interfere with the due course of justice or the lawful' process of the courts", see Reg v. Gray('), Arthur Reginald Perera v. The King( 2 ). The customs officers dld nothing of this kind. They are acting bona fide and di; charging lheir statutory duties under ss. 111 and 112.

The power of adjudicating penalty and confiscation under those sections is vested in them alone. The criminal court cannot make this adjudicatiop. The issue or the show-cause notice and proceedings thereunder are authorised by the Act and are not calculated to obs'.ruct the course of justice in any court. We see no justiftcation for holding that the proceedings amount to contempt of court.

The decided cases do not support -the appellant's contention.

In Saibal Kumar Gupta v. B. K. Sen('), it was held that an enquiry by a special committee .. appointed by the Corpora ii on of Calcutta to enquire in'.o the conduct of the Commissioner in the matter of appointment of municipal officers pending_ criminal proceedings against him in respect of certain offences did not amount to contempt of court. The special committee could not be said to hold a parallel enquiry on matters pending before the court, though the enquiry might extend to those matters incidentally. It may be noted tha'. there was no express provision in the Calcutta Municipal Act authoris:ng a special committee to hold an enquiry into

any matter in issue before a CQurt. In S. S. Roy v. Statt of Orissa('), a magistrate issued an order restraining the execution of a warrant of arrest issued by a civil court. The order was in excess of his jurisdiction and was not warranted by s. 144 of the Code of Crim 'nal Procedure. The court held that he could not be punished for contempt of court in the absence of wilful error proceeding from improper or corrupt motives. In the present case also, 1the customs officers are not actuated by any oblique motive.

Moreover, their action is authorised by ss. 111 and 112 and is not in excess of their jurisdiction.

The customs officers have a discre'.ion to stay the proceedings under ss. 111 and 112 during the pendency of the trial in the

(I) (1900j2 Q.B. 36.

(3) [1%1) 3 S.C.R. 460.

(2) (19511A.C.482, 488.

(4) A.T.R.1960S.C. 190.

criminal court. In the .exercise of their discretion they have refused to stay the proceedings. It is not shown that their action is ma/a fide or arbitrary. The court will not issue a mandan11t.1 to control this exercise of their discretion.

The appellant then claims that the proceedings under ss. 111 and 112 are in violation of Art. 20(3) of the Constitution. He says that unless the proceedings are stayed he will he compelled to enter the witness-box to rebut the evidence of John D'Sa and will be forced in cross-examination to give answers incriminatinn himself.

Article 20(3) affirms that "no person accused of any offence shall be compelled to be a witness against himself." The first information report has been lodged and formal accusation has been made in it against the appellant charging him with offences in connection with the smuggling of gold. The appellani is, therefore a person accused of an offence. But it is not possible at this stage to say that he is compelled to be a witness against himself. There is no compulsion on him to enter ther witness-box.

He may, if he chooses, not appear a$ a witness in the proceeding.< under ss. 111 and 112. The necessity to enter the witness-box fl?r

substantiating his defence is not such a compulsion as would attract the protection of Art. 20(3). Even in a criminal trial. any person accused of an offence is a competent wifuess for the defence under s. 342-A of the Criminal Procedure Code and mav give evidence on oath in disproof of the charges made against him.

It may be very necessary for the accused person to enter the witness-box for substantiating his defence. But this is no reason for saying that the criminal trial compels him to be a witness against himself and is in violation of Art. 20(3). Compulsion in the coniext of Art. 20(3) must proceed from another person or :rnthority. The appellant is not compelled to be a witness if he voluntarily gives evidence in his defence. Different considerations may arise if he is summoned by the customs authoriti~~ unde1 s. 108 fo give evidence in the proceedings under ss. 111 and 112.

But he has not yet been summoned to give evidence in those proceedings.

We express no opinion on the question whether in the event of fiis being summoned he can claim the protection under Art. 20(3) and whether in the event of his being then com pelled to give incriminating answers he can invoke the protection of the proviso to s .. 132 of the Indian Evidence Ai:t against the use of those answers in the criminal oroceedings. It may be noted that counsel for the customs authorities gave an undertaking in the High Court that they would not use h1 any criminal proceed ings the statement, if any, that might be made by the ap1>ellant during the course of the adjudication proceedings.

Before the High Court, , the appellant took the further point that the proceeding-; under ss. 111 and 112 were in violation of

A Art. 14 of the Consiitution. The High Court repelled this contention. That point has now been abandoned by the appellant and does not survive.

ln the result, the appeal is dismissed. There will be no order as to costs.

G.C.

Appeal dismissed.

L7 Sup.C.I/68~3