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PETITIONER: TUKARAM G.GAOKAR

       Vs.

RESPONDENT: R. N. SHUKLA & ORS.

DATE OF JUDGMENT: 08/03/1968

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. HIDAYATULLAH, M. (CJ) VAIDYIALINGAM, C.A. HEGDE, K.S. GROVER, A.N.

CITATION:  1968 AIR 1050            1968 SCR  (3) 422  CITATOR INFO :  R          1969 SC  30  (4)  R          1970 SC 720  (5)  R          1974 SC 642  (6)

ACT: The  Sea Customs Act, 1962, ss. 111,  112,  135--Prosecution before Magistrate for smuggling gold under s. 135--Collector of  Custotm  also issuing notice under ss.  111 and  112  to show cause why contraband gold should not be confiscated and penalty   imposed--issue  of  notice   whether   constitutes contempt  of criminal court--whether contravenes Art.  20(3) Constitution of India, 1950.

HEADNOTE: In  September  1966 the Customs authorities  seized  certain contraband  .-gold  from the possession  of  the  appellant. Thereafter  the appellant along with certain  other  persons was charged before. a Magistrate for offences in  connection 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-B of  the  Defence  of India Rules 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 -bow cause why the gold  -should  not  be confiscated  under s. III of the Sea Customs Act and  why  a penalty  -should not be imposed on him under s. 112  of  the same  Act.   Thereupon the appellant under Art. 226  of  the Constitution asked the High Court for a writ of  prohibition restraining proceedings for imposition of penalty on him  in pursuance of the aforesaid notice.  The contention was  that -the threatened proceedings (i) amounted to contempt of  the Magistrate before whom the trial was imminent and (ii)  were in violation of Art. 20(3) inasmuch as he would be compelled to  go  into  the witness box to rebut the  evidence  of  an accomplice   witness.    The  High  Court   rejected   these contentions,  but  granted a certificate to appeal  to  this Court. HELD  :  (i)  Identical  issues  arise  in  proceedings  for imposition  of  penalty under s. 112(b) of the  Sea  Customs

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Act, 1962 and in a trial for an offence punishable under  s. 135(b)  of  the same - Act.  If a  person  incurs  liability under  s. 1 1 1 he may be proceeded against under s.  112(b) -and  also  under s. 135(b).  Similar issues  arise  in  the trial  for contravention of r. 131B of the Defence of  India Rules and s. 8 of the Foreign Exchange Regulation Act.   The customs  officers  will have to enquire  into  these  issues though  the same issues will later be tried by the  criminal court.   Section 127 expressly provides that the award of  a penalty  under  s.  112 is not 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. [424 E-H] The  Customs Officers were acting bona fide and  discharging their 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  adjudication.  The issue of the show-cause notice  and proceedings  thereunder were authorised by the Act and  were not  calculated  to obstruct the course of  justice  in  any Court.   There  was no justification for  holding  that  the proceedings amounted to contempt of Court. [425 C] 423 Reg v. Gray, [1900] 2 Q.B. 36, Arthur Reginald Perera v. the King,  [1951]  A.C. 482-, Saibal Kumar Gupta v. B.  K.  Sen, [1961] 3 S.C.R. 460 and S. S. Roy v. State of Orissa, A.I.R. 1960 S.C. 190, referred to. (ii)  The  customs officers have a discretion  to  stay  the proceedings under ss. III and 112 during the pendency of the trial  in  the  criminal court.  In the  exercise  of  their discretion they had refused to stay the proceedings.  It was not shown that their action was mala fide or arbitrary.  The Court would not issue a mandamus to control this exercise of their discretion. [425 H] (iii)  The  proceedings under ss. 111 and 112 could  not  be said  to be in Violation of Art. 20(3) of ;he  Constitution. The possibility of having to enter the witness-box to  rebut the  evidence of an accomplice was not such a compulsion  as would  attract  the Provisions of proceedings  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  observed  that different  considerations might arise if the  appellant  was summoned  by  the customs authorities under s. 108  to  give evidence in the proceedings under ss.  III and 112.1 [426 D- F]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1597 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.  Hingorani and  K.  Hingorani,  for  the appellant. K.  G. Khandalawala, H. R. Khanna and S. P. Nayar,  for  the respondents. The Judgment of the Court was delivered by Bachawat,  J.  This is an appeal by certificate  against  an order  of  the Bombay High Court on  Letters  Patent  appeal confirming an order of dismissal of a writ petition by which the  appellant  Tukaram  G.  Gaokar  asked  for  a  writ  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

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under s. 112 of the Sea Customs Act, 1962.  The  appellant’s contention  is  that the threatened  proceedings  amount  to contempt  of  the  magistrate before whom  hi.-,  trial  for offences  in  connection  with  the  smuggling  of  gold  is imminent   are  and  in  violation  of  the   constitutional protection  of  Art. 20(3) of the- Constitution.   The  High Court rejected these contentions. The  main facts may be stated briefly.  On September 14  and 17,  1966, the customs officers raided a number of  premises in  the  city of Bombay and seized 65,860 tolas  of  foreign gold and some cold bangles worth about Rs. 1,14,20,270.   On September 14. 1966, the appellant was arrested on charges of complicity  in  the smuggling of (,old and  other  articles. After several remands. 424 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. 1 3 5 of the Sea Customs Act, r.  1 3 1 -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   he confiscated  under S. 111 of the Sea 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  and  was  concerned in  carrying  removing,  depositing, harbouring, keeping, concealing and dealing ’with gold which he knew or had reason to believe was liable to  confiscation under  S.  III  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 statement  of John D’Sa.  The appellant disclaims any interest in the gold seized  by the customs officers.  He resists the  imposition of penalty -on him for alleged complicity in the smuggling. It is quite clear that identical issues arise in proceedings for imposition of penalty under s. 112(b) of the Sea Customs Act. 1962 and in a trial for an offence punishable 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 with any  goods which  he  knows  or has reason to  believe  are  liable  to confiscation  under  s. 1 1 1, he may be  proceeded  against under S. 1 1 2 ( b) and also, under s. 135(b).  On the  same set of facts, a penalty may be imposed on the offender under s. II 2 (b) and he maybe punished with imprisonment and fine under  S.  135(b).   Similar issues arise in  the  trial  of offences  for  contravention 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 into these issues, though  the same issues will later be tried by the  criminal court.    The   Sea  Customs   Act   contemplates   parallel proceedings  of  this 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

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imposition of the 425 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 "calculated 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 did nothing of this kind.  They are  acting bone., fide and discharging their statutory duties under ss. III  and  112.   The  power  of  adjudicating  penalty   and confiscation  under those sections is vested in them  alone, The  criminal  court cannot make  this  adjudication.   The, issue  of the show-cause notice and  proceedings  thereunder are authorised by the Act and are not calculated to obstruct the course of justice in any court.  We see no justifycation 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 (3), it was held that  an enquiry by a special committee appointed by the  Corporation of Calcutta to enquire in to 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  that there was no express provision in the Calcutta Municipal Act authorising a special committee to hold an enquiry into  any matter  in issue before a Court.  In S. S. Roy v.  State  of Orissa  (4) , 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 Criminal 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,  the 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  discretion  to  stay   the proceedings  under ss.  111 and 112 during the  pendency  Of the trial in the (1) [1900] 2Q.B.36.         (2) [1951] A.C. 482,488. (3) [1961] 3S.C.R.460.      (4) A.I.R. 1960 S.C. 190, 426 criminal  court.  In the exercise of their  discretion  they have refused to stay the proceedings.  It is not shown  that their action is mala fide or arbitrary.  The court will  not issue   a  mandamus  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  be compelled to enter the witness-box to rebut the evidence  of John  D’Sa and will be forced in cross-examination  to  give answers  incriminating himself.  Article 20(3) affirms  that "no person, accused of any offence shall be compelled to  be a witness against himself. first information report has been lodged and formal accusation has been made in it against the

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appellant charging him with offences in connection with  the smuggling  of  gold.  The appellant 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 the witness-box.   He may,  if  he  chooses,  not appear  as)  a  witness  in  the proceedings  under  ss.  I I I and 1 12.  The  necessity  to enter the witness-box for 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 witness for the defence under s. 342- A  of the Criminal Procedure Code and may give  evidence  on oath in disproof of the charges made against him. n 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 context of Art. 20(3) must  proceed  from another person or authority.  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 authorities under s i 108 to  give evidence in the proceedings under ss.  I I 1 and 1 1 2.  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  his being summoned  he  can  -claim  the protection under Art. 20(3) and whether in the event Of  his being,  then compelled to give incriminating answers he  can invoke the protection of the proviso to s. 132 of the Indian Evidence  Act  against  the  use of  those  answers  in  the criminal -proceedings.  It may be noted that counsel for the customs  authorities gave an undertaking in the  High  Court that  they  would not use in any  criminal  proceedings  the statement,  if  any,  that might be made  by  the  appellant during the course of the adjudication proceedings. Before the High Court, the appellant took the further  point that  the  proceedings  under  ss.   Ill  and  112  were  in violation of 427 Art.  14 of the Constitution.  The High Court repelled  this contention.   That  point  has now  been  abandoned  by  the appellant and does not survive. In  the result, the appeal is dismissed.  There will  be  no order as to costs. G.C.                        Appeal dismissed. 7 Sup.C.I/68-3 428