ILLIAS Vs. COLLECTOR OF CUSTOMS MADRAS

JUDGEMENT

(1.) The main point in this appeal, by special leave, is whether the statements of the appellant and other accused persons recorded by the customs authorities under the provisions of the Customs Act 1962 (Act 52 of 1962), hereinafter called the New Act, were admissible in evidence at their trial for the alleged offences under Section 120-B of the Indian Penal Code read with Section 135 of the New Act and Sections 23 (1A) and 23B of the Foreign Exchange Regulation Act, 1947 and under Rule 131-B of the Defence of India Rules.

(2.) The facts need not be stated in great detail. A complaint was laid by the Collector of Customs, Madras, against 10 persons for having committed the above offences. The complaint related to an occurrence which involved transport of 750 bars of gold each weighing 10 tolas valued at more than 7 lacs from Bombay to Madras. The statements of the accused persons were recorded by the Inspector of Customs and other customs authorities before the complaint was filed. After a preliminary enquiry the Second Presidency Magistrate, George Town, Madras committed 9 of the accused persons to stand their trial at the City Sessions Court, the charges being confined to the transaction connected with 700 bars of gold only. Seventeen charges were framed on October 29, 1965, by the learned Sessions Judge against the appellant and eight other accused persons for the various offences mentioned above. When the hearing before the Sessions Court commenced the prosecution sought to file the statements of the accused persons recorded by the customs authorities. Certain preliminary objections were raised on behalf of the accused to the admissibility of those statements. The first was that the officers of the customs department who had recorded the statements must be deemed to be police officers and the statements being of a confessional nature were not admissible in evidence by virtue of the provisions of Section 25 of the Indian Evidence Act. The second objection was that the investigation conducted by the Customs Officer must be deemed to be under Chapter XIV read with Section 5 (2) of the Criminal Procedure Code and the statements thus became inadmissible under Section 161 read with Section 162 of the Code. The third objection was based on Article 20 (3) of the Constitution involving testimonial compulsion. This objection was not mentioned in the order of the learned Sessions Judge but it was alleged to be raised before the High Court. The matter went up to the High Court on the Revisional Side because the learned Sessions Judge took the view that the statements given by the accused persons to the Customs Officers could not be received in evidence. The learned Single Judge who heard the revision petition, referred the following questions to a full bench owing to their importance:

(3.) Learned Counsel for the appellant has not pressed the second point. As regards the third point, it was conceded before the Full Bench of the High Court that when the statements were recorded the investigation had not reached the stage when the particular persons had been accused of an offence within the meaning of Article 20 (3) of the Constitution. In view of this concession learned counsel for the appellant has submitted that the matter be left undecided so that it may be open to the appellant to make whatever submissions he wishes to make before the Trial Court when any such statement is formally tendered for admission into evidence.