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Judgment
M. Jaichandren
The petitioner has stated that he is carrying on business in purchase of Red Sander Wood in the auctions conducted by the various Departments
of the State Governments. The Red Sander Wood purchased by the petitioner had been sold to various persons, who purchase the same, process
it for its utilisation within the country or for the purpose of export. While so, on 26.11.2011, when the petitioner was waiting at the Chennai Airport
to board a flight to Pune, he had been apprehended by the officers of the Directorate of Revenue Intelligence, Chennai Unit. Thereafter, he had
been taken to Delhi and handed over to the respondent herein. On 27.11.2011, a statement had been recorded by the respondent, as if the
petitioner had stated that he had supplied Red Sander Wood to one Chellathambiand Anil Garodia @ Tinu, operating from Delhi. It had also been
recorded, as though the petitioner was aware that one C.Sekar was an employee of Chellathambi and that he had also bought Red Sander Wood,
from them, for the purpose of export. It had also been recorded as though the petitioner was involved in the export of Red Sander Wood to Dubai
and other countries. In the statement recorded by the respondent, it had also been mentioned that the petitioner was involved in the export of Red
Sander Wood, through his business friend Shahul Hameed, a citizen of Singapore, settled in Dubai and that one Sanath Kumar, is an associate of
Shahul Hammed, who used to arrange clearance of Red Sander Wood, on behalf of the various export concerns. Such statements had been
recorded by the respondent under undue influence, coercion and threat. Therefore, the petitioner had retracted the said statements. The petitioner
had further stated that he had been illegally detained for about 3 days. He had been produced before the Additional Chief Metropolitan
Magistrate, New Delhi, on 30.11.2011, along with N.C. Chellathambi and Sekar, who were the other accused persons. As the offences alleged
against the petitioner were non-bail able in nature, he had been granted bail by the said Magistrate.
The petitioner has further stated that, on30.11.2011, he had received summons issued by the respondent, in a printed format, u/s 108 of the
Customs Act, 1962. In the said summons, it had been stated that the petitioner was connected with the act of smuggling of Red Sander Wood to
Dubai and other places, and that the respondent considered the attendance of the petitioner as necessary, to give evidence and to produce
documents or things related to the said acts. As the petitioner was not in a position to appear before the respondent, on2.12.2011, he had sent a
representation to the respondent, on 1.12.2011, expressing his difficulty in attending the enquiry. Thereafter, the petitioner had received another
summons, dated 9.12.2011, calling upon the petitioner to appear before the respondent, on 22.12.2011. In such circumstances, the petitioner has
preferred the present writ petition, before this Court, under Article 226 of the Constitution of India.
The learned counsel appearing for the petitioner had submitted that the respondent does not have the authority or power to issue a summons, u/s
108 of the Customs Act, 1962. The summons issued by the respondent is arbitrary, illegal and void and therefore, it is liable to be set aside.
The learned counsel had further submitted that the respondent had registered a criminal case against the petitioner, under the provisions of the
Customs Act, 1962,based on the allegation that he had been involved in smuggling of Red Sander Wood to Dubai and other places. The petitioner
had also been arrested and produced before the Additional Chief Metropolitan Magistrate, New Delhi, on 30.11.2011. The petitioner had been
granted bail in the said criminal case. Since, the petitioner has been arrayed as an accused in the criminal case, he cannot be compelled to give
evidence in connection with the said case. As such, the summons, calling upon the petitioner to give evidence or produce the documents and things
relating to the alleged smuggling of Red Sander Wood to Dubai and other places, is violative of Article 20(3) of the Constitution of India.
The learned counsel had also submitted that the summons issued by the respondent, u/s 108 of the Customs Act, 1962, is liable to be quashed,
as it is vague. Under the guise of an enquiry, u/s 108 of the Customs Act, 1962, the respondent cannot conduct a roving enquiry, by adopting
coercive steps, to obtain material particulars, to prosecute the petitioner. The summons issued, u/s 108(1) of the Customs Act, 1962,should
specify the particular act of smuggling, in connection with which certain particulars could be asked for. However, it cannot be couched in vague
terms, as in the present case. The description of the documents summoned to be produced should be clear and specific. The respondent is not
entitled to call for all the documents and other evidence, from the petitioner, relating to the alleged smuggling of Red Sander Wood to Dubai and
other places. As such, the impugned summons, is in violation of the principles of natural justice. Further, it is an attempt to harass the petitioner
under the guise of enquiry.
The learned counsel appearing for the petitioner had submitted that, as per clause 3 of Article 20 of the Constitution of India, no person,
accused of any offence, shall be compelled to be a witness against himself. Therefore, the petitioner, who has been accused of smuggling Red
Sander Wood to Dubai and other places, along with the other accused persons, against whom the proceedings had been initiated, cannot be
asked, by way of a summons, issued u/s 108 of the Customs Act,1962, to give evidence in connection with the said case. As such, the
fundamental right of the petitioner, against self
The learned counsel appearing for the petitioner had placed reliance on the following decisions of the Supreme Court:
8.1. In Smt. Selvi and Others Vs. State of Karnataka, ,the Supreme Court had held that the right against self-incrimination is an essential safeguard
in the criminal procedure, in order to ensure that the statements made by the accused are reliable and that they had been made voluntarily.
Exclusion of compelled testimony is important as it serves as a check on the prosecution from obtaining compelled testimony from the accused
persons. During the trial stage, the onus is on the prosecution to prove the charges levelled against the defendant, and the right against self-
incrimination is a vital protection to ensure that the prosecution discharges the said onus.
In M.P. Sharma and Others v. Satish Chandra, District Magistrate, Delhi and Others CDJ 1954 SC 137,the Supreme Court had dealt with the
question of search and seizure of documents.
Per contra, the learned Senior Central Government Standing Counsel appearing for the respondent had submitted that the respondent is
empowered, u/s 108 of the Customs Act, 1962, to summon any person, whose attendance he considers as necessary, either to give evidence or to
produce a document, or any other thing, in any enquiry, which such officer is making under this Act. All persons so summoned shall be bound to
attend, either in person or by an authorised agent, as such, officer may direct, and all persons so summoned shall also be bound to state the truth
upon any subject, in respect of which they are examined, or to make statements and to produce the documents and other things, as may be
required. Therefore, the petitioner cannot claim that the summons issued, u/s 108 of the Customs Act, 1962, is contrary to law.
The learned counsel had also submitted that the summon issued, u/s 108 of the Customs Act, 1962,cannot be said to be infringing clause 3 of
Article 20 of the Constitution of India, as there is no compulsion on the part of the petitioner, to produce the documents and other evidence, which
would amount to infringement of the right against self-incrimination. Therefore, the allegation on the part of the petitioner that the summons issued
by the respondent is arbitrary, illegal and void cannot be sustained.
The learned counsel appearing for the respondents had relied on the following decisions in support of his contentions:
11.1. In Romesh Chandra Mehta Vs. State of West Bengal, the Supreme Court had held that any statement made, under Sections 107 and 108 of
the Customs Act, 1962, by a person, against whom an enquiry is made, by a customs officer, is not a statement by a person accused of an
offence.
11.2. In Union of India (UOI) Vs. Padam Narain Aggarwal etc., the Supreme Court had held that Section108 of the Customs Act, 1962, does
not contemplate magisterial intervention. The statements recorded, u/s 108 of the Act, are distinct and different from the statements recorded by
the police officers during the course of investigation, under the Criminal Procedure Code. A person called upon to make a statement before the
Customs Authorities cannot be said to be a person accused of an offence. It is, therefore, clear that, if a person is called upon to make a statement,
u/s 108 of the Customs Act, 1962, and summons is issued for the said purpose, he is bound to comply with such direction.
11.3. In Syed Mnueer Ahmed Vs. Directorate of Revenue Intelligence, Senior Intelligence Officer, this Court had held that the summons issued,
u/s 108 of the Customs Act, 1962, cannot be assailed, unless and otherwise the summonsissued is totally non est in the eye of law, or without any
jurisdiction of authority to even investigate the matter.
11.4. In K.I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, , the Supreme Court had held that the person suspected
by a customs officer, for having committed an offence, under the Customs Act, 1962, cannot be held to be an accused at that stage. He becomes
an accused only when summons are issued by the competent court/Magistrate, pursuant to a complaint lodged by the competent customs officer.
Hence, the statement recorded during an enquiry, u/s 108 of the Customs Act, 1962, or during the confiscation proceedings is not that of an
accused, within the meaning of Section 24 of the Indian Evidence Act, 1872.
11.5. In Bhanabhai Khalpabhai Vs. Collector of Customs and Another, the Supreme Court had held that statement made by an accused, recorded
u/s 108 of the Customs Act, 1962, can be used against the person making such a statement before any complaint or first information report is
lodged against him.
11.6. In the said decision, the decision of the Supreme Court in Veera Ibrahim Vs. The State of Maharashtra, was also quoted, wherein, it has
been held that, at the time the statement had been made by the customs officer, the person making such statement had not been formally accused
of any offence and therefore, the
In view of the submissions made by the learned counsels appearing for the parties concerned and on aperusal of the records available and in
view of the decisions cited supra, this Court is of the considered view that Section 108 of the Customs Act, 1962, empowers the respondent to
issue the summons asking the petitioner to produce the necessary documents and other evidences, in relation to the case on hand. However, there
is no doubt that clause 3 of Article 20 of the Constitution of India guarantees the right against self incrimination. It is clear that such a right can be
claimed by a person only if he is accused of an offence, and if he is compelled to give evidence against himself. From the above decisions it is also
evident that the protection, under clause 3 of Article20 of the Constitution of India, would be available only when a person is formally accused of
having committed an offence, either by way of a complaint or on the basis of a first information report.
It is not in doubt that the officer concerned has the power, u/s 108 of the Customs Act, 1962, to summon any person to appear before him,
for an enquiry. It is the duty of the person so summoned to state the truth before the officer concerned. However, the statements made by the
person concerned ought to be voluntary in nature. However, if the person summoned by the customs officer is an accused and if the statements
had been obtained from him under compulsion, threat, duress or by other similar means, such statements made by the person concerned cannot be
used as evidence against him, as provided under Article 20(3) of the Constitution of India. However, if the statements are made by the person
concerned, voluntarily, there is no prohibition to use such statements against him.
It is also not in dispute that the petitioner has been formally accused of an offence of smuggling Red Sander Wood to Dubai and to other
places, along with certain other accused persons. In such circumstances, it would not be open to the respondent to compel the petitioner to give
any evidence, which would be self incriminatory in nature. However, it is made clear that the respondent would have the power and authority, u/s
108 of the Customs Act, 1962, to summon the petitioner to produce the necessary documents and other evidence, in relation to the alleged
smuggling activities of the other accused persons. It is also made clear that it would be open to the respondent to issue a summons against the
petitioner, invoking his power, u/s 108 of the Customs Act,1962, and to conduct an enquiry, without infringing clause3 of Article 20 of the
Constitution of India.
It is relevant to cite the following decisions in respect of the issue in question.
15.1. In Sudhir Gulati Vs. Union of India, the Supreme Court had held that the petitioner is accused of an offence, in respect of the FIR noticed
hereinbefore, within the meaning of Article 20(3)and cannot be compelled to be a witness against himself. But the scope of offence under the
aforesaid FIR and scope of enquiry under Customs Act, 1962, are different. An enquiry under the Customs Act, 1962, primarily relates to the
smuggling of goods. Section 108 confers upon a Gazette Officer of the 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 any 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 in respect of which he is examined, or to
make statements and produce such documents and other things, as may be required. Therefore, the impugned summons cannot be set aside. The
petitioner is required to appear and answer such questions and give such information regarding himself, which do not tend to incriminate him. In our
view the petitioner is also not entitled to assistance of a lawyer at the time of the recording of his statement, u/s 108 of the Customs Act, 1962.
15.2. In THE Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd & Others, the Supreme Court had held that the
statement recorded by the customs officers, u/s 108 of the Customs Act, is admissible in evidence. The Court concerned has to test whether the
inculpating portions were made voluntarily or whether it is vitiated on account of any of the premises envisaged in section 24 of the Indian Evidence
Act, 1872.
15.3. In the decision, in K.I. Pavunny v. Assistant collector (Head Quarter), Central Excise Collector, the Supreme Court had held that if the
confession is retracted, it must be tested as to whether the confession had been made voluntarily and truthfully inculpating the accused in the
commission of the crime concerned. It is an admission against the maker of it, unless its admissibility is excluded by the relevant provisions of the
Indian Evidence Act, 1872, and the code of criminal procedure. However, it is stated that the statements were obtained by threat, duress or
promise, the burden is on the accused to prove that it was obtained in such a manner, as held in Bhagwan Singh Vs. The State of Punjab, . If the
accused is able to prove the facts creating a reasonable doubt that the confession was not voluntary or that it was obtained by threat, coercion or
inducement, the burden would be on the prosecution to prove that the confession was made by the accused, voluntarily.
15.4. In Romesh Chandra Mehta v. State of West Bengal, 1970 AIR 940, the Supreme Court had held that, under the Customs Act, 1962, the
customs officer is authorised to confiscate the goods improperly imported into India and to impose penalties in cases contemplated by Sections
112 and 113 of the Act. 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. 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 lawis arrested,
amount to making of an accusation of an offence against the person so guilty of infraction. Evenunder 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 Sections 132,
133, 134 and 135 of the Act. Any statement made under Sections 107 and 108 of the Customs Act, 1962, 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.
In such circumstances, it is made clear that the petitioner shall not be compelled by the respondent to give evidence against himself, as he is an
accused person in the alleged smuggling activities of Red Sander Wood to Dubai and to other places. However, the evidence obtained by the
respondent, from the accused, during the process of enquiry conducted by him, under the relevant provisions of the Customs Act, 1962, which
had not been obtained by compulsion, could be made use of in the subsequent proceedings, if any, initiated against the petitioner, other persons, in
the manner prescribed by law. The writ petition is ordered accordingly. No costs. Connected M.P. No. 1 of 2011 is closed.