Case Summary
| Citation | Veera Ibrahim v. State of Maharashtra (1976) 2 SCC 302 : AIR 1976 SC 1167 |
| Keywords | Sec. 27, 24 of IEA, discovery of facts, confession |
| Facts | Abdul Umrao Rauf and Veera Ibrahim were prosecuted for attempt to supply of contraband goods by truck. These goods were loaded in the truck from the seaside, in the presence of the appellant, and thereafter the first accused took the wheel, while the appellant sat by his side in the truck. A truck met with an accident and both the driver and the person next to him were taken to police station but the police didn’t file a case but directly informed to custom authorities. Then custom officer checked goods and found them illegal and it was seized by them. The appellant, the person next to driver , was questioned by custom officer and claimed to be unaware of illegal goods and denied giving any instructions to driver. The appellant said he was just a passenger and didn’t know about the driver’s illegal activities. |
| Issues | Whether Sec.24 IEA apply to statement recorded in this case. |
| Contentions | Veera Ibrahim claimed to be an innocent traveler 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”. |
| Law Points | Appellant argued that his statement was obtained under pressure because he was threatened with prosecution for perjury if he didn’t tell the truth.. Court rejected this argument and said in sec. 24 these following things must me there- -statement in question is a confession -that confession made by accused person -to be made to person in authority -confession has been obtained by any inducement, threat or promise -must have reference to the charge against accused. Court examined the statement and find that it was not a confession because there was lack of knowledge about contraband goods. Custom officer was person in authority , so there was no evidence of Inducement, threat or promise . Court said that custom officer didn’t threat the accused, so Sec.24 will not apply here. |
| Judgement | Court held that statement was not barred u/s 24 IEA and it was considered admissible as an admission of incriminating facts u/s 21 IEA. The circumstances strongly indicated the accused’s involvement in an attempt to evade duty on the contraband goods. Appeal was dismissed and accused’s involvement was confirmed. |
| Ratio Decidendi & Case Authority |
Full Case Details
R.S. 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 Section 135 (a) and 135 (b) of the Customs Act, 1962 and
Section 5 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 Section 5 of the Imports and Exports
(Control) Act, 1947 and under Section 135 (b) of the Customs Act, but maintained their
conviction on the charge under Section 135 (a) of that Act reducing the sentence to one year’s
rigorous imprisonment. The High Court, however, granted a certificate under Article 134(l)(c)
of the Constitution, on the basis of which, this appeal has been filed.
2. The main question with reference to which the certificate was granted by the High
Court, was: whether Section 108 of the Customs Act, 1962 is ultra vires the provisions of
clause (3) of Article 20 of the Constitution? But Mr Chaudhury, appearing for the appellant,
does not press this question now before us.
3. The first contention canvassed by the Counsel is that on the facts and circumstances of
the case, the appellant’s statement recorded under Section 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 an offence” under Section
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 Section 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 M.P. Sharma v. Satish Chandra, District Magistrate, Delhi [AIR 1954 SC
300].
4. On the other hand, Mr H.R. Khanna, appearing for the respondent submits that the
words “accused of an offence” occurring in Article 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.
5. Clause (3) of Article 20 provides:
“No person accused of any offence shall be compelled to be a witness against
himself.”
6. 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
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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.
7. In R.C. Mehta v. State of West Bengal [AIR 1970 SC 940], this point came up for
consideration in the context of a statement recorded by an officer of customs in an enquiry
under Section 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 Section 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 clause (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
offence within the meaning of Article 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.”
8. 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 of 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
Article 22(1) of the Constitution] for the purpose of holding an enquiry into the
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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.”
9. The abovementioned 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 Section 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 Section 135(a) and Section 135(6) of the Customs Act.
10. True, that the appellant was arrested by the police on December 12, 1967 on suspicion
of having committed an offence under Section 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. This will be
apparent from a bare reading of Section 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 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 than one month and shall also be liable to the fine which may extend
to five hundred rupees.”
11. 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 Section 108 of the Customs Act. Under the circumstances it was manifest
that at the time when the customs 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.
12. The next question to be considered is, whether this statement was hit by Section 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.
13. For reasons that follow, we are unable to sustain this contention.
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14. To attract the prohibition enacted in Section 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 supposing that by making it he would gain any advantage
or avoid any evil of a temporal nature in reference to the proceedings
against him.
15. 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 Section 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
16. 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.
17. 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 Section 135 of the Customs Act, in addition to the facts admitted in
Ex. I, it had to be established further that these goods were dutiable or contraband goods.
18. For these reasons, it could be said beyond doubt, that the statement Ex. I was not a
“confession” within the meaning of Section 24, Evidence Act.
19. 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.
20. Christophen Scares, the Inspector of Customs (PW 4) testified that no threats,
coercion or inducements were used and that the statement Ex. I was made by the appellant,
voluntarily.
21. While it may be conceded that a person summoned by an officer of customs to make a
statement under Section 108 of the Customs Act, is under compulsion of law to state the truth,
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the compulsion thereunder, assuming it amounts to a threat, does not proceed “from a person
in authority” within the contemplation of Section 24 but emanates from law.
22. Thirdly, the mere fact that the Inspector of Customs had before recording the
statement, warned the deponent of the possibility of his 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.
23. In view of what has been said above, we have no hesitation in holding that the
statement Ex. I, was not barred under Section 24, Evidence Act. The statement Ex. P-1 was
clearly admissible under Section 21, Evidence Act as an admission of incriminating facts.
24. Lastly, Mr Chaudhury tried to contend that the incriminating facts admitted in Ex. I
taken along with the other facts appearing in the evidence of prosecution witnesses, were
insufficient to establish an offence under Section 135, Customs Act against the appellant
because no notification under sub-section (2) of Section 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.
25. We are unable to accept this contention. While it is true that in the absence of the
requisite notification, the statutory presumption under Section 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 Section 135(6) read with Section 135 (ii) of the
Customs Act. In Ex. I which was proved by PW 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 (seashore) from the side of seaside
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 railway station. It is
further admitted that some bania paid Rs2,000 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 in
bulk. The circumstances of the arrest of the appellant while escaping 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 PWs 1 and 2. To some extent, the hostile witness, PW 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.
26. In the result, the appeal fails and is dismissed.
