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PETITIONER: ROMESH CHANDRA MEHTA

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT: 18/10/1968

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. MITTER, G.K. HEGDE, K.S. GROVER, A.N.

CITATION:  1970 AIR  940  CITATOR INFO :  R          1970 SC1065  (14)  R          1970 SC1310  (8)  F          1971 SC1087  (12,18)  R          1972 SC  62  (5)  R          1972 SC1224  (10)  R          1973 SC1196  (15,16,20)  F          1976 SC1167  (7)  R          1978 SC1025  (35)  RF         1981 SC 379  (16,50,68)  C          1991 SC  45  (15,16)  D          1992 SC1795  (4,6,7,8,12)

ACT: Sea  Customs  Act  (8  of 1878),  and  Customs  Act  (52  of 1962)--Customs Officer--If police officer within the meaning of s. 25 of the Evidence Act (1 of 1872).

HEADNOTE: The  accused were charged with some offenses under s.  120-B Indian  penal Code read with s. 167(81) of the  Sea  Customs Act, 1878, s. 5 of the Import and Export Control Act,  1947, for  specific  offences under the Sea Customs Act,  and  for offences  under  as 108 and 135 of the  Customs  Act,  1962. Statements  made by the accused to an officer of customs  in an  enquiry  under  s.  171-A of the  Sea  Customs  Act  and statements made were tendered in evidence. On  the  questions: (1) Whether the statement  made  by  the person accused of offences under the Sea Customs Act  should also be deemed to have been recorded under the Customs  Act, 1962. (2) Whether an officer of customs under the Sea Customs Act, 1878 is a police officer within the meaning of s. 25 of  the Evidence  Act and hence the confessional statements made  to him  were  inadmissible  in evidence. (3)  Whether  the statements were  inadmissible  under  Art. 20(3) of the Constitution; and (4) Whether an officer of customs, acting under the  Customs Act,  1962  is, in any event, a police  officer  within  the meaning of s. 25 of the Evidence Act and hence  confessional

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statements made to him were inadmissible in evidence. HELD:  (1)  Even after the repeal to the  Sea  Customs  Act, 1878, admissibility of a statement in a trial on a complaint made before a Magistrate for contravention of the provisions of  that Act, must  be judged in the light of the taint,  if any,  attaching  thereto when the statement  was  made;  the determination  of the question depends only on s. 25 of  the Evidence Act and Art. 20(3) of the Constitution. [466 B] (2)  A customs officer under the 1878 Act, had the power  to detain,  to arrest, obtain a search warrant to  produce  the person  arrested before a Magistrate and to obtain an  order for remand and to keep him in custody with a view to collect evidence.   He  may therefore have  opportunities,  which  a police  officer  has  of  extracting  a  confession  from  a suspect,  but  a customs officer is not on that  account.  a police officer. The test for determining whether an  officer of customs is to be deemed a police officer is whether he is invested  with  all  the  powers of  a  police  officer  qua investigation of an offence. including the power to submit a report  under  s. 173, Cr. P.C.  An officer of  customs  may exercise the various powers conferred on him for  preventing smuggling of goods dutiable or prohibited and for  adjudging confiscation  of those goods.  The enquiry made by him is  a judicial proceeding for the purpose of as. 193 462 and  228  I.P.C., and his orders are subject to  appeal  and revision.  He  does  not exercise,  when  enquiring  into  a suspected  infringement  of the Sea Customs Act,  powers  of investigation  which a police officer may, in  investigating the  commission  of  an  offence.   He  has  no  power    to investigate an offence triable by a Magistrate nor the power to  submit  a report under s. 173 Cr. P.C.  [467  C--D;  469 A--B] State  of Punjab v. Barkat Ram. [1962] 3 S.C.R.  338,   Raja Ram  Jaiswal v. State of Bihar, [1964] 2 S.C.R.  752,  Badku Joti  Savant v. State of Mysore, [1966] 3 S.C.R. 698 and  P. Shankar Lall v. ,Asstt. Collector of Customs, C.A. Nos. 52 & 104/65 dated 12-12-1967, referred to. (3)  The  statements  are not inadmissible  because  of  the protection grated by Art. 20(3) of the Constitution. In  order that the guarantee against testimonial  compulsion incorporated  in  Art. 20(3) may be claimed by a  person  it must be established that when he made the statements  sought to  be  tendered in  evidence against him, he was  a  person accused of an offence.  Section 171 of the Sea Customs  Act, refers  to  ’any  person’  and  includes  a  person  who  is suspected  or  believed W 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 tiring, a person accused of  an offence   within   the  meaning  of  Art.   20(3)   of   the Constitution.   The steps taken by the customs  officer  are for the purpose of holding an enquiry under the Sea  Customs Act  and  for adjudging confiscation of  goods  dutiable  or prohibited and imposing penalties.  These steps are taken to prevent  smuggling  and to recover duties of  customs.   The customs officer does not, ’at that stage, accuse the  person suspected  of infringing the provisions of the  Sea  Customs Act  or  with the  commission  of  an  offence, nor  is  the formally    accusing    the   person    of    any    offence punishable  at a trial before a Magistrate.  In the case  of an  offence  by  infringement of the  Sea  Customs  Act  and punishable  at the trial before   a Magistrate there  is  an

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accusation  when  a complaint is    lodged  by   an  officer competent in that behalf before the Magistrate.  This  Court in  State  of  Bombay v. Kathi Kalu Oghad  [1962]  3  S.C.R. 10  in  using the expression ’the person accused  must  have stood in the character of an accused person" did not set out a different test for determining the stage when a person may be said to be accused of an offence. [469 G  470 C; 471 G] Raj  Narayan Lal Bansilal v. Maneck, Phiroz Mistry [1961]  1 S.C.R. 417, followed. Maqbool Hussain v. State of Bombay. [1953] S.C.R.  730, M-P. Sharma  &  Ors.  v.  Satish  Chandra,  District  Magistrate, Delhi,  [1954] S.C.R. 1077 and Bhagwandas Goenka v. Union of India,  Cr.  A.  No.  131 & 132  of  1961  dated  20-9-1963, referred to. Collector of Customs, Madras v. Kotumal Bhirumal  Pihlajani, A.IR.  1967 Mad. 263 and Laxman Padma Bhagat v.  State,   67 B.L.R.  317, approved. Calcutta Motor & Cycle Co. v. Collector of Customs,.  A.I.R. 1956 Cal. 253 and Collector of Customs v. Calcutta Motor and Cycle  Co. A.I.R. 1958 Cal. 682, disapproved. (4)  In certain matters the 1962 Act differs from  the  1878 Act.  For instance, under the 2878 Act search of  any  place could not be made by a customs officer on his own accord: he had to apply for and obtain a 463 search warrant, but under s. 105 of the 1962 Act, it is open to  the  Assistant Collector of Customs himseft to  issue  a search waRrant.  A proper officer is also entitled under the 1962  Act to stop and search conveyances: he is entitled  to release a person on bail or otherwise. and for this  purpose has the same powers and is subject to the same provisions as the  officer  in charge of a police station is.   But  these additional  powers do not make him a police  officer  within the  meaning of .s. 25 of the Evidence Act.  Though  he  has all  the powers of an officer in charge of a police  station the expression ’otherwise’ does not confer on him the  power to lodge a report before a Magistrate under s. 173  Cr. P.C. and  it is implicit in the provisions of s. 137 of the  1962 Act  that  the proceedings before a Magistrate can  only  be commenced by way of a complaint and not on a report made  by a  customs  officer.   The powers  conferred  on  a  cUstoms officer and the proceedings taken by him are for the purpose of holding an enquiry into suspected cases of smuggling. His orders are appealable and  revisable.  Therefore, a  customs officer  under the 1’962 Act is not a police officer  within the meaning of s. 25 of the Evidence Act. [478 D--G; 479 A]     Under  s. 104(1), if the Customs Officer has  reason  to believe  that  a  person  has  been  guilty  of  an  offence punishable  under s. 135 he could arrest such  person.   But the  section  only prescribes the conditions  in  which  the power  of  arrest  may be exercised.  By  informing  such  a person  of the’ grounds of his arrest, the  customs  officer does  not  formally  accuse him with the  commission  of  an offence.   Arrest and detention are only for the purpose  of holding  effectively  an enquiry with a  view  to  adjudging confiscation  of dutiable or prohibited goods  and  imposing penalties.   At  that  stage there is  no  question  of  the offender being charged be.fore a Magistrate.  If he forms an opinion that the offender should be prosecuted he may prefer a complaint in the manner provided under s. 137 and until  a complaint is so filed the person against whom an enquiry  is commenced  under  the  Customs Act does not  Stand  in  the. character  of a person accused of an offence under  s.  135. [479 D---F]     Under  the Customs Act of 1962, the Customs  Officer  is

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authorised to confiscate  goods  improperly  imported   into India   and to  impose penalties.   But  on   that   account the   basic   scheme  of the  1878 Act   is   not   altered. The    customs   officer,   even   under   the   1962   Act, continues to remain a revenue  officer primarily   concerned with the detection of smuggling and enforcement and levy  of proper duties and prevention of entry into India of dutiable goods without payment of duty and of goods of which entry is prohibited.   He  does not on that account become  a  police officer,  for, even Under the 1962 Act, a formal  accusation is deemed to be made only when a complaint is made before  a competent  Magistrate  to  try  the  person  guilty  of  the infraction under any of the ss. 132 to 135 of the Act.  [479 G  480 B]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION,: Criminal Appeal No. 27 of 1967.     Appeal  by  special leave from the judgment  and  order, dated  September  8,  1966 of the  Calcutta  High  Court  in Criminal Revision No. 231 of 1965 and Criminal Appeal No. 45 of 1968.     Appeal  by  special leave from the judgment  and  order, dated November 14, 1967 of the Bombay High Court in Criminal Revision Application No. 682 of 1967 and CriMinal Appeal No. 46 of 1968. 464     Appeal  by  special leave from the judgment  and  order, dated November 9, 1967 of the Bombay High Court in  Criminal Revision Application No. 447 of 1967 and Criminal Appeal No. 47 of 1968.     Appeal  by  special leave from the judgment  and  order, dated November 9, 1967 of the Bombay High Court in  Criminal Revision Application No. 475 of 1967.     B.C.  Misra,  P.K. Ghosh for P.K. Chakravarty,  for  the appellant (in Cr. A. No. 27 of 1967).     C.K.   Daphtary,  Attorney-General,  B.  Sen  and   G.S. Chatterjee for the respondent (in Cr. A. No. 27 of 1967).     K. Rajendra Chaudhuri, for the appellant (in Cr. A.  No. 45 of 1968).     B. Sen and S., P. Nayar, for the respondents (in Cr.  A. No. 45 of 1968).     A.  K. Sen, Parus .4. Mehta, Janendra Lal,  J.R.  Gagrat and  B.R..,Agarwala, for the appellant (in Cr. A. No. 46  of 1968).     B. Sen, A. P. Gandhi, R.N. Sachthey, S.P. Nayar and B.D. Sharma, for the respondents (in Cr. A. No. 46 of 1968).     A.S.R.  Chari,  B.M. Patel and M.V. Goswami,   for   the appellant (in Cr. A. No. 47 of 1968).     B. Sen, .4. P. Gandhi, R.N. Sachthey and S.P. Nayar, for the respondents (in Cr. A. No. 47 of 1968).     The Judgment of the Court was delivered by     Shah,  J.   The Assistant Collector of Customs  filed  a complaint  against Romesh Chandra Mehta and four  others  in the   Court  of  the  Additional  District  Magistrate,   24 Parganas,  charging  them with offences  under  s.  120BI.P. Code read with s. 167(81) of the Sea Customs Act, 1878, s. 5 of  the Import & Export Control Act, 1947, and for  specific offences  committed in pursuance of the conspiracy.  It  was the case of the complainant that when Mehta was searched  on December  13,  1962,  at  the  Dum  Dum  Airport,  Calcutta, diamonds and jewellery worth Rs. 1,91,000 were found on  his person  and  currency notes of Rs. 27,000 were  found  in  a

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suit-case with him and that pursuant to a statement made  by Mehta  diamonds,  pearls and jewellery of the value  of  Rs. 2,61,800  and  correspondence telegrams and  cables  bearing upon  the conspiracy to smuggle gold, precious  stones  etc. into  India  from  foreign  countries  were  recovered  from different places. 465     The  complainant  tendered  in  evidence  at  the  trial certain  confessional statements which he claimed were  made before the Customs Authorities in an enquiry under s.  171-A of the Sea Customs Act, 1878, by Mehta and the other persons accused.   Counsel   for  the  accused   objected   to   the admissibility  of  that  evidence  but  the  objection   was overruled  by  the  Trial Magistrate.   The  High  Court  of Calcutta  rejected  a  petition  invoking  their  revisional jurisdiction  against  the order of  the  Trial  Magistrate. With special leave, Mehta has appealed to this Court.     Counsel for Mehta urged three contentions in.support  of the appeal:               (1)  that the statements tendered in  evidence               by  the  Customs  Officer must  be  deemed  by               virtue of s. 160 of the Customs Act 52 of 1962               to  be recorded under the provisions  of  that               Act and their admissibility may be adjudged in               the light of that Act alone;               (2)  that an Officer of Customs is  a  "police               officer"  within the meaning of s. 25  of  the               Indian     Evidence   Act,   1872,    and    a               confessional  statement  made  before  him  is               inadmissible  in evidence at the trial of  the               appellant and his co-accused;               (3)  that  the  statements  made  before   the               Customs  Officer were otherwise  inadmissible,               because Mehta and others being persons accused               of an offence were compelled by the  provision               of s. 171-A of the Sea Customs Act, 1878,,  to               be  witnesses  against themselves  within  the               meaning of Art. 20(3) of the Constitution. By s. 160(1) of Act 52 of 1962 read with the Schedule to that Act, the Sea Customs Act 8 of 1878 was repealed. By sub-s. (3) of s. 160 it is provided: "Notwithstanding  the  repeal  of  any  enactment  by   this section,-- (a)  any notification, rule, regulation,  order   or  notice issued  or  any  appointment  or  declaration  made  or  any licence,  permission or exemption granted or any  assessment made,  confiscation  adjudged  or any  duty  levied  or  any penalty  or fine imposed or any forfeiture, cancellation  or discharge of any bond ordered or any other thing done or any "other  action taken under any repealed enactment shall,  so far  as it is not inconsistent with the provisions  of  this Act,  be  deemed  to  have been  done  or  taken  under  the corresponding provision of this Act; (b) . . . . . . . . " 466 But  the admissibility of statements recorded by  a  Customs Officer under s. 171-A of the Sea Customs Act, 1878, depends upon   the  determination  of  the  question   whether   the statements  when made were inadmissible under s. 25  of  the Evidence  Act,  and Art. 20(3) of  the  Constitution.   Even after  the repeal of the Sea Customs Act,  admissibility  of the  statement made in a complaint made before a  Magistrate for  contravention  of  the provision of that  Act  must  be adjudged  in  the  light of the  taint,  if  any,  attaching thereto  when the statement was made.  The first  contention

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must, therefore, fail. Section  25 of the Indian Evidence Act,  1872,  enacts  that "No  confession made to a police  officer  shall  be  proved as  against  a person accused of any  offence".   The  broad ground  for declaring confessions made to  a  police-officer inadmissible  is  to  avoid the danger  of  admitting  false confessional  statements  obtained by coercion,  torture  Or iII-treatment.  But a Customs Officer is not a member of the police force.  He is not entrusted with the duty to maintain law   and  order.   He  is  entrusted  with   powers   which specifically relate to the collection of customs duties  and prevention  of  smuggling.   There is  no  warrant  for  the contention  raised  by  counsel for  Mehta  that  a  Customs Officer is invested in the enquiry under the Sea Customs Act with  all the powers which a police-officer in charge  of  a police  station  has under the Code of  Criminal  Procedure. Under  the Sea Customs Act, a Customs Officer is  authorised to  collect customs duty to prevent smuggling and  for  that purpose  he is invested with the power to search any  person on  reasonable  suspicion (s. 169); to screen or  X-ray  the body of a person for detecting secreted goods (s. 170A);  to arrest  a person against whom a reasonable suspicion  exists that  he  =has been guilty of an offence under the  Act  (s. 173); to obtain a search warrant from a Magistrate to search any  place  within the local limits of the  jurisdiction  of such   Magistrate  (s.  172);  to  collect  information   by summoning  persons  to give evidence and  produce  documents (s. 171-A); and to adjudge confiscation under s. 182. He may exercise  these  powers for preventing  smuggling  of  goods dutiable  or  prohibited and for adjudging  confiscation  of those goods.  For collecting evidence the Customs Officer is entitled  to serve a summons to produce a document or  other thing  or  to give evidence, and the person so  summoned  is bound to attend either in person or by an authorized  agent, as  such officer may direct, and the person so  summoned  is bound  to state the truth upon any subject respecting  which he  is  examined or makes a statement and  to  produce  such documents  and  other things as may be required.  The  power arrest, the power to detain, the power to search or obtain a 467 search warrant and the power to collect evidence are  vested in  the  Customs Officer for enforcing compliance  with  the provisions  of the Sea Customs Act.  For purpose of ss.  193 and  228  of  the Indian Penal Code the enquiry  made  by  a Customs  Officer is a judicial. proceeding.  An  order  made ’by him is appealable  to the Chief Customs-authority  under s. 188 and against that order revisional jurisdiction may be exercised  by  the Chief Customs authority and also  by  the Central  Government at the instance of any person  aggrieved by any decision or order passed under the Act.  The  Customs Officer does not exercise,  when enquiring into a  suspected infringement of the Sea Customs Act, powers of investigation which  a police-officer may in investigating the  commission of  an  offence.  He is invested with the power  to  enquire into  infringements of the Act primarily for the purpose  Of adjudicating  forfeiture  and penalty.  He has no  power  to investigate  an offence triable by a Magistrate, nor has  he the  power  to submit a report under s. 173 of the  Code  of Criminal Procedure. He can only make a complaint in  writing before a competent Magistrate.     In  The  State of Punjab v. Barkat Ram(1)   this   Court held  (Subba  Rao, J., dissenting) that  a  Customs  Officer under  the  Land Customs Act 19 of 1.924 or  under  the  Sea Customs  Act  8  of 1878 is not  a  police-officer  for  the purpose of s. 25 of the Indian Evidence Act, 1872, and  that

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conviction of the offender on the basis of his statements to the  Customs  Officer for offences under s.  167(8)  of  Sea Customs  Act,  1878, and s. 23(1) of  the  Foreign  Exchange Regulation  Act, 1947, is not illegal.  Raghubar Dayal,  J., who delivered the majority judgment of this Court observed: ".....that  the powers which the police officers  enjoy  are powers  for the effective prevention and detection of  crime in order to maintain law and order..               The powers of customs officers are really  not               for  such purpose.  Their powers are  for  the               purpose of checking the smuggling of goods and               the  due realisation of customs duties and  to               determine  the  action  to  be  taken  in  the               interests  of the revenues of the  country  by               way of confiscation of goods on which no  duty               had  been paid and by imposing  penalties  and               fines."     In  Raja Ram jaiswal v, State of Bihar(2)  the  decision in  Barkat  Rara’s  case(x) was  distinguished  and  it  was observed (1) [1962] 3 S.C.R. 338.    (2) [1964] 2 S.C.R. 752. 468 (Raghubar Dayal, J., dissenting) that the expression "police officer"  in  s.  25  of the Evidence  Act  was  not  to  be construed  narrowly  but in a wide and popular  sense.   The Court  in  that case held that an Excise Inspector  or  Sub- Inspector  under the Bihar and Orissa Excise Act 2  of  1915 upon   whom  .all   the  powers of  a  police  officer  were conferred  is entitled to investigate any offence under  the Excise Act and to submit a charge-sheet and on that  account he  must be regarded as a police officer within the  meaning of  s. 25 of the Evidence Act.  The Court observed that  the object  of  enacting  s.  25 of  the  Evidence  Act  was  to eliminate  from  consideration  confessions   made   to   an officer  who  by virtue of his position,  could  extract  by force,  toture  or inducement a confession,  and  an  Excise Officer acting’ under s. 78(3) of the Bihar & Orissa  Excise Act, 1915, was in the same position as an officer in  charge of a police station making an investigation under Ch. XIV of the   Code   of  Criminal  ProcedUre,  and  had   the   same opportunities of extracting a confession from a suspect.     In  Badku Joti Savant v. State of Mysore(1)  this  Court held that the officer empowered under the Central Excise and Salt Act 1 of 1944 and when making enquiries for purposes of that  Act invested with powers of an officer-in-charge of  a police station investigating a cognizable offence, is not  a police  officer  within the meaning of s. 25 of  the  Indian Evidence  Act,  and  the  statement  of  an  accused  person recorded  by him is not hit by that section.  The  Court  in that  case distinguished the decision in Raja Ram  Jaiswal’s Case.(2)  and  observed that a Central  Excise  Officer  was invested  with  powers of an officer-in-charge of  a  police station when investigating a cognizable offence, but he  had no  power  to submit a report under s. 173 of  the  Code  of Criminal Procedure, and on that account he was not a  police officer within the meaning of s. 25 of the Evidence Act.     In .P. Shanker Lall and Ors. v. The Assistant  Collector of Customs, Madras,(5) Sikri, J., delivering the judgment of the  Court  observed  that  a  confession  made  before  the Assistant Collector of Customs was not inadmissible under s. 25 of the Indian Evidence Act     Counsel  for Mehta contended that a Customs Officer  who has  power  to  detain, to arrest,  to  produce  the  person arrested  . before a Magistrate, and to obtain an order  for remand  and keep him in his custody with a view  to  examine

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the  person  so arrested and other persons with  a  view  to collect  evidence, has opportunities which a police  officer has of extracting confessions (1) [1966] 3 S.C.R. 698.   (2) [1964] 2 S.C.R. 752. (3) Cr.As.Nos.52 & 104 of 1965 decided on December 12, 1967. 469 from a suspect, and if the expression police officer be  not narrowly understood, a statement recorded by him of a person who’  is accused of an offence is inadmissible by virtue  of s.  25  of  the  Indian Evidence  Act.   But  the  test  for determining whether an officer of customs is to be deemed  a police officer is whether he is invested with all the powers of  a  police  officer  qua  investigation  of  an  offence, including  the power to submit a report under s. 173 of  the Code of Criminal Procedure. It is not claimed that a Customs Officer  exercising  power to make an enquiry may  submit  a report under s. 173 of the Code of Criminal Procedure.     The  remaining contention that a person against whom  an enquiry is made by the Customs Officer under the Sea Customs Act is a person accused of an offence and on that account he cannot  be compelled to be made a witness  against  himself, and the evidence if any collected by examining him under  s. 171-A  of the Sea Customs Act is inadmissible has,  also  no substance.   By Art. 20(3) of the Constitution a person  who is  accused  of  any offence may not be compelled  to  be  a witness against himself.  The guarantee is, it is true,  not restricted  to  statements made in the  witness  box.   This Court in The State of Bombay v. Kathi Kalu Oghad(1) observed at p. 37:                   "To   be   a  witness’   means   imparting               knowledge  in respect or relevant facts by  an               oral statement or a statement in writing, made               or given in Court or otherwise.                   ’To   be  a  witness’  in   its   ordinary               grammatical sense means giving oral  testimony               in  Court.   Case  law has  gone  beyond  this               strict    literal   interpretation   of    the               expression which may now bear a wider meaning,               namely,  bearing testimony in Court or out  of               Court  by  a  person accused  of  an  offence,               orally or in writing." But   in  order  that  the  guarantee  against   testimonial compulsion  incorporated in Art. 20(3) may be claimed  by  a person  it  has  to be established that  when  he  made  the statement sought to be tendered in evidence against him,  he was  a person accused of an offence.  Under s. 171-A of  the Sea  Customs Act, 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 el.  (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 470 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 offence   within   the  meaning  of  Art.   20(3)   of   the Constitution.   The steps taken by the Customs  Officer  are for the purpose of holding an enquiry under the Sea  Customs Act  and  for adjudging confiscation of  goods  dutiable  or

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prohibited and imposing penalties.  The Customs Officer does not at that stage accuse the person suspected of  infringing the provisions of the Sea Customs Act 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 Customs Act, he is  not accusing  the  person of any offence punishable at  a  trial before  a Magistrate.  In Maqbool Hussain  v.  The State  of Bombay(x),   the  Court held that a person against  whom  an order for confiscation of goods had been made in proceedings taken  by Customs Officers under s. 167 of the  Sea  Customs Act and was subsequently prosecuted before a Magistrate  for offences  under the Foreign Exchange Regulation Act,   1947, could’ not plead the protection of Art. 20(2), since he  was not  "prosecuted"  before the Customs authorities,  and  the order for confiscation was not a "punishment" inflicted by a Court or judicial tribunal within the meaning of Art.  20(2) of the Constitution and the prosecution was not barred.      In  M.P.  Sharma & Ors. v.  Satish  Chandra,   District Magistrate,  Delhi and Ors.(2) this Court  observed  that  a compelled production of incriminating documents by a  person against  whom a First Information Report under the  Code  of Criminal  Procedure has been made is testimonial  compulsion within the meaning of Art. 20(3) of the Constitution.  But a search and seizure of a document under the provisions of ss. 94 and 96 of the Code of Criminal Procedure do not amount to compelled  production  thereof within the  meaning  of  Art. 20(3).  It was observed by Jagannadhadas, J., at p. 1087:               "Broadly  stated in the guarantee  in  Article               20(3)       is      against       "testimonial               compulsion"  ........  the protection afforded               to  an accused in so far as it is  related  to               the phrase ’to be a witness’ is not merely  in               respect of testimonial compulsion in the court               room   but  may  well  extend   to   compelled               testimony previously obtained from (1) [1953] S.C.R. 730.    (2) [1954] S.C.R. 1077. 471               him.  It  is available therefore to  a  person               against  whom a formal accusation relating  to               the commission of an offence has been  leveled               which  in  the  normal course  may  result  in               prosecution."               . The  Court  further observed that the guarantee  under  Art. 20(3). is available to the petitioners against whom a  First Information Report had been recorded.     In Raja Narayanlal Bansilal v. Maneck Phiroz Mistry  and Anr.(1)   admissibility  of  a  statement  made  before   an Inspector  appointed  by the Government of India  under  the Indian Companies Act, 1913, to investigate the affairs  of a Company and to report thereon was canvassed. It was observed at p. 436:               ".  .  . one of the essential  conditions  for               invoking    the    constitutional    guarantee               enshrined  in  Art.  20(3) is  that  a  formal               accusation  relating to the commission  of  an               offence,  which  would normally  lead  to  his               prosecution,  must have been  leveled  against               the  party  who  is being  compelled  to  give               evidence against him." Sinha, C.J., speaking for the majority of the Court in Kathi Kalu Oghad’s Case(2) stated that:                   "To bring the statement in question within               the  prohibition  of Art.  20(3),  the  person

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             accused must have stood in the character of an               accused  person  at  the  time  he  made   the               statement.  It  is not enough that  he  should               become   an  accused,  any  time   after   the               statement has been made."     In the two earlier cases M.P. Sharma’s case(3) and  Raja Narayanlal  Bansilal’s  Case(1) this Court in  describing  a person  accused used the expression "against whom  a  formal accusation had been made", and in Kathi Kalu Oghad’s case(2) this Court used the expression "the person accused must have stood  in the character of an accused person".  Counsel  for Mehta urged that the earlier authorities were superseded  in Kathi  Kalu  Oghad’s  case(2)  and  it  was  ruled  that   a statement  made by a  person standing in the character of  a person  accused of an offence is inadmissible by  virtue  of Art. 20(3) of the Constitution.  But the Court in Kathi Kalu Oghad’s  case(2)  has  not set out  a   different  test  for determining  the  stage  when a person may  be  said  to  be accused  of an offence.  In Kathi Kalu Oghad’s  case(2)  the Court  merely  set out the principles in the  light  of  the effect  of  a formal accusation on a person, viz.,  that  he stands in the character of (1) [1961] 1 S.C.R. 417.     (2) [1962] 3 S.C.R. 10. (3) [1954] S.C.R. 1077. 472 an accused person at the time when he makes the  .statement. 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  Art. 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  decision of this Court in Bhagwandas Goenka v.  The Union  of India(1) lays down no principle inconsistent  with the view we have expressed.  In Bhagwandas Goenka’s  case(1) the appellant was charged with using a sum of 4,000  dollars borrowed by him when he was on a visit to the United  States of  America and with depositing cheques of the value of  500 dollars with a foreign bank in which he had an account,  and thereby  infringing ss. 4(1) and (3) read with s. 23 of  the Foreign  Exchange  Regulation Act 7 of 1947.  At  the  trial before  a  Magistrate  the  appellant  contended  that   the information demanded and obtained from him on September  19, 1952 and May 14, 1953 by the Reserve Bank of India under  s. 19  of the Foreign Exchange Regulation Act with  respect  to the  two sum. s was inadmissible.  This Court negatived  the contention observing that no information was collected  from the  accused after July 4, 1955, when he was asked  to  show cause  by the Reserve Bank why he should not  be  prosecuted for contravention of the various provisions of the Act  with respect to the two sums.  The Court observed:                  "The  information collected under s. 19  is               for   the   purpose  of   seeing   whether   a               prosecution  should  be launched or  not.   At               that stage when information is being collected

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             there is no accusation against the person from               whom information is being collected. It may be               that after the information has been  collected               to Central Government or the Reserve Bank  may               come  to the conclusion that there is no  case               for  prosecution and the person concerned  may               never  be  accused,.  It cannot  therefore  be               predicated that the person from whom in- (1) cr. As. Nos. 131 & 132 of 1961 dated September 20, 1963. 473               formation  is being collected under s.  19  is               necessarily  in  the position of  an  accused.               The  question  whether he should  be  made  an               accused   is  generally  decided   after   the               information is collected and it is when a show               cause  notice is issued, as was done  in  this               case on July 4, 1955, that it can be said that               a formal accusation has been made against  the               person  concerned.   We are therefore  of  the               opinion that the appellant is not entitled  to               the  protection of Art. 20(3) with respect  to               the information that might have been collected               from him under s. 19 before July 4, 1955." Under s. 19 of the Foreign Exchange Regulation Act, 1947, it is  open  to the Central Government or the Reserve  Bank  of India, if it considers necessary or expedient, to obtain and examine  any  information,  book or other  document  in  the possession  of  any person or which in the  opinion  of  the Central  Government or the Reserve Bank it is  possible  for such  person to obtain and furnish, by order in writing,  to require  any  such  person  to furnish,  or  to  obtain  and furnish,  to the Central Government or the Reserve  Bank  or any  person specified in the. order with  such  information, book or other document. The information which was asked  for and  obtained in Bhagwandas Goenkas case(1) under s.  19  of the  Foreign  Exchange  Regulation Act was not  held  to  be information  obtained  in  violation of Art.  20(3)  of  the Constitution,  for the accusation in view of the  Court  was made  against  the appellant for the first time on  July  4, 1955,  when  the  Reserve  Bank  of  India  called  for   an explanation of the appellant why he should not be prosecuted for  contravention of the various provisions of the  Foreign Exchange  Regulation Act.  Under the proviso to s. 23(3)  of that  Act it is enacted that "where any such offence is  the contravention  of any of the provisions of this Act  or  any rule, direction or order made thereunder which prohibits the doing of an act without permission, no such complaint  shall be  made unless the person accused of the offence  has  been given   an   opportunity  of  showing  that  he   had   such permission."  In the light of the proviso the Court  assumed that  when an authority which is statutorily authorised  and bound  to  call  for an explanation before  a  complaint  is filed,  serves  a formal notice calling for  explanation,  a formal accusation may be deemed to be made.  But that is not the position in the present case.     In  our  judgment the view expressed by  Sinha,  J.,  in Calcutta Motor and Cycle Company v. Collector of  Customs(2) that  a  proceeding under s. 171-A of the Sea  Customs  Act, 1878,  being preliminary to a criminal trial  any  statement procured would be (1) Cr. As. Nos. 13/& 132 of 1961 dated September 20, 1963. (2) A.I.R. [1956] Cal. 253. 3 Sup. C.I.[69--13] 474 inadmissible   under  Art.  20(3)  there  being   a   formal accusation  relating to the commission of an offence’  which

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in  the  normal  course may result in  prosecution,  is  not correct.  Opinion of the Court recorded in appeal from  that judgment  in Collector of Customs & Ors. v.  Calcutta  Motor and  Cycle Company(1) in which Chakravartti, C.J.,  observed that the protection of Art. 20(3) avails even where a person is not formally accused or charged is inconsistent with  the judgments  of  this Court already referred, cannot  also  be accepted as correct.    The views expressed by the Madras High Court in Collector of  Customs, Madras v. Kotumal Bhirumal Pihlajani(2)  at  p. 275 that:                  "  .....the  bar under Art.  20(3)  of  the               Constitution  will  not be  available  to  the               ’statements  in this case, since it is not  in               dispute  that  they have  been  recorded  only               during  an  investigation  undertaken  by  the               Customs Officer under sections 107 and 108  of               the Customs Act of 1952 and at a time when the               deponents  did  not stand in the  position  of               accused in the light of the principles  stated               in the decisions cited above,", and  by the Bombay High Court in Laxman Padma Bhagat v.  The State(3)  that a person examined under s. 171-A of  the  Sea Customs  Act,  1878, does not stand in the character  of  an accused  person  inasmuch as there is no  formal  accusation made  against  him by any person at that time  are,  in  our judgment, substantially correct.     We,  therefore,  agree  with the  High  Court  that  the statements  made by Mehta and other persons  accused  before the  Additional District Magistrate, 24 Parganas,  were  not inadmissible  in evidence because of the protection  granted under Art. 20(3) of the Constitution.           Criminal Appeal No. 45 of 1968     On  March 6, 1963, six parcels containing  watches  were seized  by  the Customs authorities at Santa  Cruz  Airport, Bombay.  The Customs authorities recorded statements of  the appellant  Chitnis and attached certain documents from  him. Thereafter the Customs authorities filed a complaint against Chitnis and thirteen  others for offences under s. 120B I.P. Code read with s. 167(81) of the Sea Customs Act, and s. 135 of   the   Customs  Act,   1962  read  with  s.   109   I.P. Code .alleging that between August 15, 1952 and January  28, 1963,.  and between February 5, 1963 and March 6, 1963,  the offenders had imported wat- (1) A.I.R. 1958 Cal. 682.      (2) A.I.R. 1967 Mad. 263. (3) 67 B.L.R. 317. 475 ches  and  had on that account committed offences  under  s. 120B  LP. Code read with s. 167(81) of the Sea Customs  Act, and  s. 120 I.P. Code read with s. 135 of the  Customs  Act, 1962, read with s. 109 I.P. Code respectively.  At the trial the prosecutor tendered in evidence certain statements  made before the Customs authorities by the accused.  The Advocate for  the  accused  objected to the  admissibility  of  those statements.   The Trial Magistrate rejected  the  contention and in a revision application filed before the High Court of Bombay  the  order passed by the Presidency  Magistrate  was confirmed.                 Criminal Appeal No. 46 of 1968     Dady  Adarji Fatakia was arrested on December 26,  1964. At  that time he was found in possession of 540 watches.  He was  served with a summons under s. 108 of the Customs  Act, 1962,  and  he made a statement before  a  Customs  Officer. Thereafter  a  complaint  Was filed  before  the  Presidency Magistrate,  Bombay, against Fatakia for offences  under  s.

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135(a)  and (b) of the Customs Act, 1962.  At the trial  the public  prosecutor  supplied to, the accused copies  of  the statements   made  by  Fatakia.  The  accused  Fatakia  then applied to the Magistrate. that the statement if tendered in evidence   would   be   inadmissible   because   they   were inadmissible under s. 25 of tile .Evidence Act or s. 162  of the  Code of Criminal Procedure or under Art. 20(3)  of  the Constitution.   The  contentions  were  negatived   by   the Magistrate  and in a revision application to the High  Court the order of the Presidency Magistrate was confirmed.              Criminal Appeal No. 47 of 1968     On  May  30, 1965, the Customs  Officers  seized  11,000 tolas of gold from a room in the occupation of the appellant Poonamchand  and then recorded his statement  after  serving him with a summons under s. 108 of the Customs Act, 1962.  A complaint was filed against the appellant and two others  in the  Court of Additional Chief Presidency  Magistrate,   8th Court,  Bombay,  under s. 120B I.P. Code and s. 135  of  the Customs  Act, and Rule 126P(2) (II) and (IV) of the  Defence of India Rules read with s. 109 I.P. Code and s. 135 of  the Customs Act, 1962 read with s. 109 I.P. Code.  At the  trial evidence  was given by the Superintendent,  Central  Excise, Marine and Preventive Division, that the persons accused had made certain oral statement in his presence admitting  their complicity in smuggling gold.  An application by Poonamchand raising the contention that the statements were inadmissible under s. 25 of the Indian Evidence Act and Art. 20(3) of the Constitution was rejected on the ground that the application was premature.  A revision application was 476 then filed in the High Court and it was heard with the other petitions and was rejected.     In  the  three appeals Nos. 45, 46 and 47  of  1968  the statements  were  made  to or recorded  before  the  Customs Officers in an enquiry made under the Customs Act, 1962.  It was  urged on behalf of the appellants that  the  statements made before the .Customs Officers exercising power under the Customs Act, 1962 are inadmissible at the trial of a person, accused of an offence under the Customs Act, 1962, became of s.   25  of  the  Evidence  Act  and  Art.  20(3)   of   the Constitution.     The  scheme  of  the  Customs  Act,  1962,  relating  to searches,  seizure and arrest and confiscation of goods  and conveyances  and  imposition  of penalties  may  be  briefly examined.  Under ss. 100 and 101 a Customs Officer has power to  search  any person to whom these sections apply  if  the officer has reason to believe that such person has  secreted about  his person, any goods liable to confiscation  or  any documents  relating  thereto. Section 104 confers  upon  the ’Customs Officer power to arrest if he has reason to believe that any person in India or within the Indian Customs waters has  been  guilty of an offence punishable  under  s.   135. Every person so arrested must be informed of the grounds for such arrest.  Section 105 authorises any Assistant Collector of  Customs  to  search any premises if  he  has  reason  to believe that goods. liable to confiscation, or any documents or  things  which  in ’his opinion will  be  useful  for  or relevant  to any proceeding under the Act, are  secreted  in any place, he may authorise any officer customs to search or may  himself  search for such goods,  documents  or  things. Under s. 104(3) where an officer of customs has arrested any person  under  sub.-s.  (1) he shall,  for  the  purpose  of realising  such person on bail or otherwise, have  the  same powers and be subject to the same provisions as the officer- in-charge  of a police station has and is subject  to  under

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the Code of Criminal Procedure, 1898. By s. 107 any  officer of  customs empowered in that behalf by general  or  special order of the Collector of the Customs may, during the course of  any  enquiry  in connection with the  smuggling  of  any goods--(a)  require  any person to produce  or  deliver  any document or thing. relevant to the enquiry; and (b)  examine any  person acquainted with the facts and  circumstances  of the  case.  Section 108 confers upon a gazetted  officer  of customs  the power to summon any person whose attendance  he considers  necessary  to  give  evidence  or  to  produce  a document or any other thing in an enquiry which such officer is  making in connection with the smuggling of  goods.   The person so summoned is bound to attend and to state the truth upon  any subject respecting which he is examined,  or  make statements and 477 produce such documents and other things as may be  required, and  every  such inquiry shall be deemed to  be  a  judicial proceeding  within  the meaning of ss. 193 and  228  of  the Indian  Penal  Code.   Section  110  authorises  the  proper officer to seize such goods as he has reason to believe  are liable  to confiscation under the Act.  Sections 111 to  127 deal  with  confiscation of goods and conveyances  and  with imposition of penalties.  An appeal lies to the  appropriate authority  at  the instance of a person  aggrieved  ’by  any decision  or  order  passed under the Act  within  the  time specified  under s. 128.  Under s. 130 the Central Board  of Revenue may exercise revisional powers in respect of  orders passed  by  the Subordinate Customs authorities and  s.  131 authorises the Central Government on the application of  any person  aggrieved  by certain orders  specified  therein  to exercise the power to annul or modify such orders.  Sections 132 to 139 deal with offences and prosecution.  Section  135 provides, insofar as it. is material:                  "Without  prejudice to any action that  may               be taken under this Act, if any person--                  (a) is in relation to any goods in any  way               knowingly concerned in any fraudulent  evasion               or  attempt at evasion of any duty  chargeable               thereon  or  of any prohibition for  the  time               being imposed under this Act or any other  law               for  the time being in force with  respect  to               such goods, or                  (b) 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 with               any  goods  which he knows or  has  reason  to               believe  are  liable  to  confiscation   under               section               111, he shall be punishable,(i)               (i) . . . . . . . . . .               (ii) . . . . . . . . . . Section 137, insofar as it is material, provides:                  "(1) No court shall take cognizance of  any               offence   under  section  132,  section   133,               section  134 or section 135, except  with  the               previous sanction of the Collector of Customs.                   (2) No court shall take cognizance of  any               offence under section 136,--                   (a)  where the offence is alleged to  have               been  committed by an officer of  customs  not               lower in rank than 478               Assistant  Collector of Customs,  except  with

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             the   previous   sanction   of   the   Central               Government; (b) . . . . . . . . ." The Customs Act 52 of 1962 invests the Customs Officer  with the  power to search a person and to arrest him,  to  search premises,  to  stop and search conveyances, and  to  examine persons,  and also with the power to summon persons to  give evidence  and  to produce documents and  seizure  of  goods, documents  and things which are liable to confiscation.   He is also invested with the power to release a person on bail. He  is entitled to order confiscation of smuggled goods  and impose penalty on persons proved to be guility of infringing the provisions of the Act.  It is implicit in the provisions of s. 137 that the proceedings before a Magistrate can  only be commenced by way of a complaint and not on a report  made by a Customs Officer.     In certain matters the Customs Act of 1962 differs  from the  Sea Customs Act of 1878.  For instance, under  the  Sea Customs  Act  search  of any place could not be  made  by  a Customs  Officer of his own accord: he had to apply for  and obtain  a search warrant from a Magistrate. Under s. 105  of the Customs Act, 1962, it is open to the Assistant Collector of  Customs  himself to issue a search  warrant.   A  proper officer  is also entitled under that Act to stop and  search conveyances: he is entitled to release a person on bail, and for  that purpose has the same powers and is subject to  the same provisions as the officer-in-charge of a police station is.   But  these additional powers with  which  the  Customs Officer  is  invested under the Act of 1962 do not,  in  our judgment, make him a police officer within the meaning of s. 25  of the Evidence Act.  He is, it is true,  invested  with the  powers of an officer-in-charge of a police station  for the  purpose of releasing any person on bail  or  otherwise. The  expression "or otherwise" does not confer upon him  the power to lodge a report before a Magistrate under s. 173  of the  Code of Criminal Procedure. Power to grant bail,  power to  collect  evidence,  and  power  to  search  premises  or conveyances  without recourse to a Magistrate, do  not  make him an officer-in-charge of a police station,     Proceedings taken by him are for the purpose of  holding an enquiry into suspected cases of smuggling. His orders are appealable   and   are  subject  also  to   the   revisional jurisdiction  of  the Central Board of Revenue  and  may  be carried  to  the Central Government.  Powers  are  conferred upon him primarily for collection of duty and prevention  of smuggling.   He  is  for  all purposes  an  officer  of  the revenue.     For  reasons set out in the judgment in Criminal  Appeal No.  27  of 1967 and the judgment of this   Court  in  Badku Joti 479 Savant’s case (1), we are of the view that a Customs Officer is  under  the Act of 1962 not a police officer  within  the meaning of s. 25 of the Evidence Act and the statements made before  him by a person who is arrested or against  whom  an inquiry  is  made  are not covered by s. 25  of  the  Indian Evidence Act.     It  was  strenuously  urged that under  s.  104  of  the Customs  Act, 1962, the Customs Officer may arrest a  person only if he has reason to believe that any person in India or within  the  Indian  Customs waters has been  guilty  of  an offence punishable under s. 135 and not otherwise and he  is bound  to inform such person of the grounds of  his  arrest. Arrest  of  the  person  who  is  guility  of  the   offence punishable  under s. 135 and information to be given to  him

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amount,  it  was  contended, to a formal  accusation  of  an offence and in any case the person who has been arrested and who  has  been  informed of the  nature  of  the  infraction committed  by  him  stands in the character  of  an  accused person.   We  are  unable to  agree  with  that  contention. Section  104(1) only prescribes the conditions in which  the power  of  arrest may be exercised.  The officer  must  have reason  to  believe  that a person has  been  guilty  of  an offence punishable under s. 135, otherwise he cannot  arrest such person.  But by informing such person of the grounds of his arrest the Customs Officer does not formally accuse  him with the commission of an offence. Arrest and detention  are only for the purpose of holding effectively an inquiry under ss.  107  and  108  of the Act  with  a  view  to  adjudging confiscation  of dutiable or prohibited goods  and  imposing penalties.  At  that  stage  there is  no  question  of  the offender  against  the Customs Act being  charged  before  a Magistrate.    Ordinarily   after  adjudging   penalty   and confiscation  of goods or without doing so, if  the  Customs Officer  forms  an  opinion  that  the  offender  should  be prosecuted he may prefer a complaint in the manner  provided under  s. 137 with the sanction of the Collector of  Customs and until a complaint is so filed the person against whom an inquiry is commenced under the Customs Act does not stand in the  character  of a person accused of an offence  under  s. 135.     Section  167 of the Sea Customs Act, 1878,  contained  a large  number of clauses which described different kinds  of infractions and different penalties or punishments liable to be  imposed  in  respect of those  infractions.   Under  the Customs  Act of 1962 ’the Customs Officer is  authorised  to confiscate  goods  improperly  imported into  India  and  to impose  penalties in cases contemplated by ss. 112 and  113. But on that account the basic scheme of the Sea Customs Act, 1878,  is not altered.  The Customs Officer even  under  the Act of 1962 continues to remain a revenue officer  primarily concerned  with the detection of smuggling  and  enforcement and levy of proper duties and prevention of entry into (1) [1966] 3 S.C.R. 698. 480 India of dutiable goods without payment of duty and of goods of  which  the  entry is prohibited.  He does  not  on  that account  become  either  a  police  officer,  nor  does  the information  conveyed by him, when the person guilty  of  an infraction  of the law is arrested, amount to making  of  an accusation  of  an offence against the person so  guilty  of infraction.   Even under the Act of 1962  formal  accusation can  only  be  deemed to be made when a  complaint  is  made before  a Magistrate competent to try the person’ guilty  of the infraction under ss. 132, 133, 134 and 135 of the.  Act. Any statement made under ss. 107 and 108 of the Customs  Act by  a person against whom an enquiry is made by ’a  Customs. Officer  is not a statement made by a person accused  of  an offence.     Before parting with the case, we must observe that  this Court has been invited in this group of appeals to  consider the  question of admissibility of evidence before the  trial was completed.  At various stages of argument counsel  asked us to make several assumptions on matters of evidence  which were  not  before this Court. In some cases  the  statements made by the accused before the Customs Officer were tendered in evidence and were objected to; in other cases even before the  statements were tendered in evidence,  objections  were raised.   We may also observe that we are not  concerned  in these  appeals to decide whether the statements relied  upon

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were  obtained from persons charged with infraction  of  the provisions  of the Customs Act by officers having  authority over them, by inducement, threat or promise having reference to  the  inquiry  made against them.   These  questions,  if raised,  have to be decided at the trial of the  appellants. The appeals fail and are dismissed. R.K.P.S.                                  Appeals dismissed. 481