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PETITIONER: VEERA IBRAHIM

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT18/03/1976

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH UNTWALIA, N.L.

CITATION:  1976 AIR 1167            1976 SCR  (3) 672  1976 SCC  (2) 302

ACT:      Constitution  of   India,  Art  20(3),  conditions  for applicability of, whether enquiry is ‘accusation’ within the meaning of-Evidence  Act, S  24, when attracted-What amounts to ‘confession’ under S. 24.

HEADNOTE:      A truck was seized with its content of contraband goods for foreign  make, on  which no  duty  had  been  paid.  The appellant who was in charge of the goods, was arrested while escaping from the truck and Rs. 2000/- were seized from him. His statement  was recorded under S. 108, Customs Act, 1962. The appellant and the driver of the truck. were convicted by the Trial Court under Ss. 135 (a) and 135 (b) of the Customs Act. 1962,  and S. 5 of the Imports & Exports (Control) Act, 1947. The  High Court  upheld their  conviction under S. 135 (a) of  the Customs  Act, and  acquitted them  of the  other charges.      In appeal by leave granted under Art. 134(1) (c) of the Constitution, the appellant contended before this Court that his statement  taken under S. 108, Customs Act, could not be used against  him; firstly,  as it  was hit by Art. 20(3) of the Constitution  on account  of its having been taken while he was already an ‘accused’ under S. 124, Bombay Police Act, and secondly.  it was  barred under S. 24, Evidence Act, the same being a confession obtained under compulsion of law. It was also  contended that  in the  absence of  the  requisite notification under  S. 123(2),  Customs Act,  the  statutory presumption under  S.  123  could  not  be  invoked  by  the prosecution, and  without the  same, the  facts of  the case were  insufficient  to  establish  an  offence  against  the appellant under S. 135, Customs Act.      Dismissing the appeal, the Court, ^      HELD: (1) To claim the benefit of the guarantee against testimonial compulsion embodied in clause (3) of Art. 20, 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. Only a person against whom a  formal accusation  relating to  the commission of an offence has  been levelled  would  fall  within  its  ambit. [674C-D]

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    R.C. Mehta  v. State  of West  Bengal, [1969]  2 S.C.R. 461, applied.      (2)  To  attract  the  prohibition  enacted  in  S.  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  the Court  be sufficient  to give                the accused person ground, which would appear                to him  reasonable,  for  supposing  that  by                making it  he would  gain  any  advantage  or                avoid  any   evil  of   temporal  nature   in                reference to  the  proceedings  against  him.                [676F-H, 677A] 673      (3) 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, however 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’. [677A-C]      Pakala Narayana  v. R.  66 I.  A. 66  Palvinder kaur v. State of  Punjab [1953]  S.C.R. 94,  Om  Prakash  v.  State, A.I.R. 1960 S.C. 409, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 234 of 1971.      From the  Judgment and  order dated  the 26-3-71 of the Bombay High  Court at  Bombay in Criminal Appeal No. 1434 of 1970.      K. R.  Chaudhury and  K.  Rajendra  Chaudhury  for  the Appellant.      H. R. Khanna and M. N. Shroff for Respondent.      The Judgment of the Court was delivered by      SARKARIA, J.-Veera Ibrahim, appellant was accused No. 2 in the  complaint filed  by Assistant  Collector of Customs, Preventive Department,  Bombay before  the Chief  Presidency Magistrate for  his prosecution  along with  one Abdul Umrao Rauf, accused No. 1, in respect of offences under ss. 135(a) and 135(b)  of the Customs Act, 1962 and s. S of the Imports and  Exports   (Control)  Act  1947.  The  trial  Magistrate convicted both  the accused  on all  the three  charges  and sentenced them  to two  years rigorous  imprisonment on each count  with   a  direction  that  the  sentences  would  run concurrently. Against  that judgment,  two separate  appeals were filed  by the  convicts in  the Bombay High Court which acquitted both the accused of the offences under s. 5 of the Imports and  Exports (Control) Act, 1947 and under s. 135(b) of the  Customs Act,  but maintained their conviction on the charge under  s. 135(a) of that Act reducing the sentence to

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one years  rigorous imprisonment,  The High  Court, however, granted a  certificate  under  Article  134(1)  (c)  of  the Constitution, on  the basis  of which,  this appeal has been filed.      The  main   question  with   reference  to   which  the certificate was  granted by  the High Court, was: whether s. 108 of  the Customs  Act, 1962 is ultra vires the provisions of cl.  (3) of  Article 20  of the  Constitution ?  But  Mr. Chaudhry, appearing  for the  appellant, does not press this question now before us.      The first  contention canvassed  by the Counsel is that on the  facts and circumstances of the case, the appellant’s statement recorded  under s. 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 any offence" under s. 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 s. 124 of the Bombay Police Act and the goods were seized under a Panchnama, prepared by them in the course  of investigation.  In this connection, reference has been made to 674 M.  P.   Sharma  and   Ors.  v.   Satish  Chandra,  District Magistrate, Delhi and Ors.(1)      On the  other hand, Mr. H. R. Khanna, appearing for the respondent submits  that the  words "accused of any offence" occurring in  Art. 20(3)  take in  only that  person against whom a  formal accusation  of an  offence has been levelled. Two other  conditions for  the applicability of this Clause, according to  the Counsel,  are: (a)  that the  testimony in question had  been obtained  under compulsion,  and  (b)  it relates to  the offence of which he stands formally accused. These conditions,  it is  maintained, were  not fulfilled in the present case.      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.  The  phrase  "accused  of  any offence" has  been the  subject of several decisions of this Court so  that 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, this point came up for  consideration in the context of a statement recorded by an officer of Customs in an enquiry under s. 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. This contention was repelled.  Shah J.,  speaking for  the Court, made these apposite observations:           "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

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    to produce  a document  or any  other thing, and by cl.      (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  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 675      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.  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".      After a  survey of  case law, 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  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. 221)  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 above-quoted  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 s. 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 s. 135(a) and s. 135(b) 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  s. 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.

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This will  be apparent  from a bare reading of s. 124 of the Bombay Police Act, which provides :           "Whoever has  in his  possession or conveys in any      manner, or  offers for  sale or  pawn,  anything  which      there is 676      reason  to  believe  is  stolen  property  or  property      fraudulently obtained shall, if he fails to account for      such possession  or to  act to  the satisfaction of the      Magistrate,   on    conviction,   be    punished   with      imprisonment for  a term  (which may extend to one year      but shall  not, except  for reasons  to be  recorded in      writing, be  less taken  one month  and shall  also  be      liable to  the fine  which may  extend to  five hundred      rupees).      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 did not take any steps for prosecuting the appellant even for an offence under the Bombay Police Act, 1951. 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 s. 108 of the Customs Act. Under the  circumstances it  was manifest  that at  the time when the  Custom  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  s.  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.      For reasons  that follow, we are unable to sustain this contention.      To attract  the prohibition  enacted in s. 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  the Court  be sufficient  to give                the  accused   person  grounds,  which  would                appear to him reasonable, for 677                supposing that by making it he would gain any                advantage or  avoid any  evil of  a  temporal                nature  in   reference  to   the  proceedings

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              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 s. 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 (see  Pakala Narayana  v. R.;  Plavinder Kaur  v. State of Punjab;  Om Prakash v. State.      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 s.  135 of the Customs Act, in addition to  the facts  admitted in  Ex. I,  it  had  to  be established further that these goods were contraband goods.      For these  reasons, it could be said beyond doubt, that the statement  Ex. 1  was  not  a  "confession"  within  the meaning of s. 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.      Christopher Soares, the Inspector of (Customs (P. W. 4) testified that no threats, coercion or inducements were used and that  the statement  Ex. 1  was made  by the  appellant, voluntarily.      While it  may be  conceded that a person summoned by an officer of  Customs to  make a statement under s. 108 of the Customs Act,  is under compulsion of law to state the truth, the compulsion there under, assuming it amounts to a threat, does not  proceed "from  a person  in authority"  within the contemplation of s. 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 678 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. 1,  was  not barred under  s. 24, Evidence Act. The statement Ex. P-1 was clearly admissible under s. 21, Evidence Act as an admission of incriminating facts.      Lastly,  Mr.   Chaudhry  tried   to  contend  that  the incriminating facts  admitted in  Ex. 1 taken along with the other  facts   appearing  in  the  evidence  of  prosecution

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witnesses, were  insufficient to  establish an offence under s.  135,  Customs  Act  against  the  appellant  because  no notification under  sub-s. (2) of s. 123, of the Customs Act had been issued in respect of the import of the goods of the kind seized,  and the aid of the statutory presumption under that section was not available to the prosecution.      We are  unable to  accept this  contention. While it is true that  in the absence of the requisite notification, the statutory presumption  under s.  123 could not be invoked by the prosecution,  the circumstances  established  unerringly raise  an   inference  with   regard  to   all  the  factual ingredients of  an offence  under s.  135(b)  read  with  s. 135(ii) of  the Customs  Act. In  Ex. 1  which was proved by P.W. 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 at  Reti Bunder (sea shore) from the side of sea-side  wall, in  the presence  of the  appellant,  and thereafter the  first accused  took  the  wheel,  while  the appellant sat  by his  side in  the truck, and drove towards Sandhurst Station.  It is  further admitted  that some Bania paid Rs.  2,000/- to  the appellant  which was  meant to  be given to  the driver  of the truck. Unfortunately, the truck skidded near  the Dongri  Police Station and came to a stop. On hearing  the impact of the accident, the police came out, took both the accused into the Police Station and seized the truck and  the goods.  In short,  the. appellant had clearly admitted that these packages containing the contraband goods were imported  surreptitiously from  Reti Bunder under cover of  darkness.   It  was   further  established  de-hors  the statement of  the appellant, that these packages, on opening by the  Customs officer,  were found  to contain  contraband goods of  foreign make. They were brand new articles packed. The circumstances  of the  arrest  of  the  appellant  while escaping 679 from the  truck, the seizure of the truck and the goods, the contraband nature of the goods, the fact that at the time of the seizure, the goods, were in the charge of the appellant, the fact  that no  duty on  these goods  had been  paid, the seizure of  Rs. 2,000/- as cash from the appellant etc. were proved by  evidence aliunde  rendered by  P. Ws. 1 and 2. To some extent,  the hostile  witness, P.W.  5, also, supported the prosecution.  The circumstances established unmistakably and  irresistibly   pointed  to   the  conclusion  that  the appellant was knowingly concerned in a fraudulent attempt at evasion, if  not, fraudulent  evasion, of duty chargeable on those contraband goods.      In the result, the appeal fails and is dismissed. M.R.                                       Appeal dismissed. 680