Veera Ibrahim, appellant was accused No. 2 in the complaint filed by Assistant Collector of Customs, Bombay before the Chief Presidency Magistrate for his prosecution in respect of offences under Section 135 (a) and 135 (b) of the Customs Act, 1962. The trial Magistrate convicted both the accused on all the three charges.
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 Customs Act, 1962, 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 an 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.
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. 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 v. State of West Bengal [1970 SC], 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 Customs Act. 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.
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 of 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 22(1) of the Constitution] for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act 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 Customs Act 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 abovementioned 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 Customs Act, 1962. 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 135(a) and Section 135(6) of the Customs Act.
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 Customs Act.
Even in respect of that offence, the police did not register any case or enter any F.I.R. 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 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 Customs Act. Under the circumstances it was manifest that at the time when the customs 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 20(3) 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.
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;
(iii) that 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 Court be sufficient 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 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.
A perusal of the statement Ex. 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 Customs Act, in addition to the facts admitted in Ex. I, it had to be established further that these goods were dutiable or contraband goods.
For these reasons, it could be said beyond doubt, that the statement Ex. I 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.
While it may be conceded that a person summoned by an officer of customs to make a statement under Section 108 of the Customs Act, is under compulsion of law to state the truth, the compulsion thereunder, 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 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 Ex. I, was not barred under Section 24, Evidence Act. The statement Ex. P-1 was clearly admissible under Section 21, Evidence Act as an admission of incriminating facts.
Lastly, Mr Chaudhury tried to contend that the incriminating facts admitted in Ex. I taken along with the other facts appearing in the evidence of prosecution witnesses, were insufficient to establish an offence under Section 135, Customs Act against the appellant.
We are unable to accept this contention. In Ex. I 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 , in the presence of the appellant, and thereafter the first accused took the wheel, while the appellant sat by his side in the truck.
In the result, the appeal fails and is dismissed.
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