COLLECTOR OF CUSTOMS MADRAS Vs. KOTUMAL BHIRUMAL PIHLAJANI

JUDGEMENT

(1.) IN view of the ultimate order which I propose to pass in this case, namely, for reference to an appropriately constituted Bench, I shall refer to the facts of this revision case as well as the arguments advanced, therein briefly.

(2.) A compliant was laid by the Collector of Customs, Madras against ten persons for offences under Section 120-B I. P. C. (conspiracy) read with Section 135 of the customs Act 1962 (Central) Act 52 of 1962 (concerning smuggling of prohibited goods including possession knowing or having reason to believe them to be smuggled and therefore liable to confiscation), under Section 23 (1) (A) and 23 (B)of the Foreign Exchange Regulation Act and under rule 131-B of the Defence of india Rules (illegal possession of gold ). The complaint arose out of an incident which involved transport from Bombay to Madras of 750 bars of gold each weighing ten tolas, whose value would exceed Rs. seven lacks. It was alleged that out of those, 700 bars were brought in a car from Bombay to Bangalore in the first instance where the car broke down and then another car was engaged. Ultimately the gold was brought to Hotel Woodlands, Roypettah, Madras and stored in room no. 32. The Customs Officers on receiving information, kept a watch on the aforesaid room, which was found locked. Accused 3 and 4 were traced in a room in hotel Desaprakash Madras and were questioned at that hotel by the Customs officers. Nothing incriminating was found in the room in the latter hotel. But on a search of the room in the Woodlands Hotel, 700 bars of gold were recovered from under a mattress on a cot. Statements were recorded from accused 3 to 9, by p. W. 1, Inspector of Customs, and also by some other customs Authorities, A compliant was filed by the Collector of Customs, After a preliminary enquiry, the second Presidency Magistrate, George, Town, committed the accused to take their trial at the City Sessions Court, Madras, after discharging accused 4. In the committal order, the Magistrate confined the charges to the transaction connected with the 700 bars of gold, as in his opinion the transaction in regard to the 50 bars was a distinct one.

(3.) THEREAFTER 17 charges were framed on 29-10-1965 by the learned Sessions judge against 9 accused persons for the various offences mentioned above. A special Public Prosecutor was engaged to appear for the Collector of Customs, and the accused were represented by a number of counsel. When the hearing before the Sessions Court Commenced, the prosecution wanted to file the statements recorded by the Customs Officer, P. W. 1, from the several accused persons, certain preliminary objections were raised by the accused's counsel, to the admissibility of these statements in evidence. It was argued firstly that the officer of the Customs Department, who recorded the statements, must be deemed to be a police officer and that since the statements were of a confessional nature, they could not be admitted in evidence under Section 25 of the Indian Evidence Act. The second objection was that the investigation conduct by the Customs officer must be deemed to be under Ch. XIV read with Section 5 (2) of the Cri. P. C. and therefore the statements would be inadmissible under Section 161 read with section 162 Crl. P. C. The third objection was based on Art. 20 (3) of the constitution of India, that no person accused of any offence shall be compelled to be a witness against himself. In regard to this last mentioned preliminary objection, I find no reference to it in the order of the learned Sessions Judge. But it was urged before me by learned counsel Sri. S. Govind Swaminathan appearing for some of the respondents in this revision, that this ground was also urged in the lower court, but that no finding was given by the lower court on that objection. But since it was a substantial point of law, I permitted him to urge that objection also before this court, for supporting the lower court's order.