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1965 DIGILAW 258 (MAD)

Collector of Customs, Madras v. Rotumal Bherumal

1965-08-19

M.NATESAN, P.RAMAKRISHNAN, R.SADASIVAM

body1965
Judgment :- The circumstances which led to this reference to a Full Bench of this Court have been set down in some detail, in the order of reference made by one of us, and it is not necessary to recapitulate them. The point referred to our decision is: "Are statements recorded by enquiring officers of the Customs Department under Sections 107 & 108 of the Customs Act, 1962 inadmissible in evidence in a criminal trial by reason of the bar under (1) Section 25 of the Indian Evidence Act; (2) Section 162 of the Criminal Procedure Code; and (3) Article 20(3) of the Constitution." * 2.We will take up first for consideration, the question as to how far statements recorded by officers of the Customs Department under Section 107 and the Section 108 of the Customs Act, 1962, (Act 52 of 1962) would be hit, for the purpose of admissibility in evidence in a criminal trial by reason of Section 25 of the Indian Evidence Act; in other words, whether the officers of the Customs Department, investigating into smuggling offence, can be considered to be police officers, within the meaning of Section 25 of the Indian Evidence Act, Section 107 of Act 52 of 1962 reads thus : "Power to examine persons. - Any officer of Customs empowered in this behalf by general or special order of the Collector of 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; (b) examine any person acquainted with the facts and circumstances of the case." Section 108 reads thus : " Power to summon persons to give evidence and produce documents (1) Any Gazetted Officer of Customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or anything in any inquiry which such officer is making in connection with the smuggling of any goods.(2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) 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 bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required; Provided that the exemption under Section 132 of the Code of Civil Procedure, 1908, shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code" * We propose to go into the scope and extent of the powers of investigation, conferred by the Customs Act of 1962, in some detail a little later in the judgment. But in the meantime it will be useful to set down the gist of the decisions bearing on the subjects, to enable a proper appreciation to be made, of the provisions for investigation by Customs Officers contained in Act 52 of 1962. 3.In State of Punjab v. Barkat Ram the Supreme Court had to consider the effect of Section 25 of the Evidence Act, on statements recorded by a Customs Officer either under the Land Customs Act, 1924 (Act XIX of 1924) or under the Sea Customs Act, 1878 (Act VIII of 1878), and whether the Customs Officer, under the two provisions last cited, is a Police Officer within the meaning of that expression in Section 25 of the Indian Evidence Act. The relevant provisions for inquiry in the Sea Customs Act, 1878, was contained in Section 171A whose terms were more or less analogous to those Section 108 of the Act of 1962 with the difference that of 108 of Act 1962, refers to a gazetted officer. Section 107 of the Act of 1962 gives the power of investigation to be conducted in a less formal manner, to an officer of the Customs Department specially empowered in that behalf, with the qualification that such an enquiry will not have the advantage of being considered to be a judicial proceeding as in the case of the inquiry under Section 108. The majority of the Supreme Court comprising of Kapur and Raghubir Dayar, JJ., after making an analysis of the relevant provisions of the Sea Customs Act held that the Customs Officer under the old Sea Customs Act, could not be considered to be a police officer for the purpose of Section 25 of the Indian Evidence Act. They relied inter alia on the following special provisions in that Act: (l) The Act conferred on them powers to make search, powers to arrest and powers to record evidence, but these powers would not suffice to make them police officers as contemplated in Section 25 of the Indian Evidence Act, even if one were to assume, as held by certain High Courts, that officers on whom the powers of an officer incharge of a police station under Chapter XIV Cr. P. C. have been conferred, were police officers for the purpose of Section 25 of the Evidence Act. (2) The powers which the police officers enjoy, are powers for the effective prevention and detection of crimes in order to maintain law and order; but the powers conferred on customs officers are intended for the purpose of checking the smuggling of goods, the due realisation of customs duties and to determine to action to be taken by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines in the interest of the revenues of the country. This could be clear from the preamble to the Sea Customs Act, which states, "whereas it is expedient to consolidate and amend the law relating to the levy of Sea Customs duties." * The duties of customs officers are very much different from those of the police officers, though certain powers which they possess may have similarity with those of police powers but these were intended for the purpose of detecting the smuggling of goods and the persons responsible for it, and they would not make the customs officers, police officers. (3) There are provisions in the Sea Customs Act which refer to a police officer in contradistinction to a Customs Officer. The said sections are Section 118 and Section 184. This circumstance also leaves no room for doubt that a customs officer is not an officer of the police. (3) There are provisions in the Sea Customs Act which refer to a police officer in contradistinction to a Customs Officer. The said sections are Section 118 and Section 184. This circumstance also leaves no room for doubt that a customs officer is not an officer of the police. (4) A reference to the Scope of the inquiry under Section 171-A of the Act, and the powers conferred therein, and in particular the provision for treating the inquiry as a judicial proceeding, would show that did not contemplate the treating of the legislature statements recorded by such officers on as per the legislature with the statement recorded by police officer during investigation under the Criminal Procedure Code; because no proceeding before a police officer is taken to be a judicial proceeding for the purpose of Section 193 and Section 228 I.P.C. or for any purpose. 4.However, learned counsel who appeared the respondents herein, who are these caused in S.C. No. 13 of 1965, urged that the revised Customs Act, 1962 (Act 52 of 1962) contains so many new provisions which confer extensive powers of investigation on customs officers, that the view laid down by the Supreme Court in State of Punjab v. Barkat Ram in regard to the old Sea Customs Act, will cease to apply in the case of an investigation under new Act. For this purpose the learned counsel supplied us with a competitive statement of the different provisions of the two enactments, and he also gave extracts of the relevant provisions from the Opium Act (Act 1 of 1878), the Bihar & Orissa Excise Act (Act 2 of 1915) and the Central Excises and Salt Act, (Act 1 of 1944). We will confine our attention to the parallel provisions of the old Sea Customs Act and the revised Act (Act 52 of 1962), and refer to the other enactments in the particular contexts where such reference is necessary. First of all, the preamble to Act 52 of 1962 states that it was an act "to consolidate and amend the law relating to customs." The preamble to the old Customs Act has already been referred to earlier in this Judgment. But the modification in the preamble of the new Act has little or no effect on the question we have to consider. But the modification in the preamble of the new Act has little or no effect on the question we have to consider. All that the new preamble implies is that the legislative intended to pass a consolidated Act for the purpose of dealing with matters affecting customs. The provisions which are proudly analogous, in the old and new Customs Act, can be considered under the categories of (1) Power to arrest (Section 173 of the old Act and Section 104(1) of the new Act), (2) power of search (Section 172 of the old Act and Section 105 (1) of the new Act, (3) the procedure after arrest (Section 104 of the old Act and Section 102 of the new Act), and (4) power to investigate (Section 171-A of the old Act and Sections 107 and 108 of the new Act). It is undeniable that there are differences in the working used between the old rules and the new rules under the categories mentioned above, and we examined these provisions after setting them side by side in so as to bring into greater focus the nature of these verbal alterations but it is not necessary to expect them here, because it is common ground, that the substantial differences between arrest, (ii) in the procedure for investigation and (iii) in the procedure for search. 5.In regard to the procedure for arrest, Section 104(3) of the Act of 1962, states that where an officer of customs has arrested any person under sub-section (i) if he has reason to believe that any person has been guilty of an offence punishable under Section 135, he shall for the purpose of releasing 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 subject to, under the Code of Criminal Procedure, 1898. Section 104(4) states that notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act shall not be cognizable. Under the old Sea Customs Act, Section 174 provided that every person, arrested on the ground that he has been guilty of an offence under this Act, shall forthwith be taken before the nearest Magistrate or Customs Collector, but there were no analogous provision in the old Act for the grant of bail by the customs officer himself. Under the old Sea Customs Act, Section 174 provided that every person, arrested on the ground that he has been guilty of an offence under this Act, shall forthwith be taken before the nearest Magistrate or Customs Collector, but there were no analogous provision in the old Act for the grant of bail by the customs officer himself. 6.In regard to the procedure for investigation, there was only a single provision in Section 171-A of the old Act. It refers to an inquiry which is treated as a judicial proceedings, and there was a direction that it should be conducted by an officer of customs, duly employed in the prevention of such smuggling. But in the new Act, the provision for investigation has been split up into two sections. Section 107 gives power to any officer of customs specially empowered in this behalf to hold any inquiry in connection with the smuggling of any goods; and for that purpose he can require any person to produce or deliver any document or thing relevant to the enquiry, and examine any person acquainted with the facts and circumstances of the case, but this enquiry involves no compulsion, and the enquiring officer cannot compel the attendance of witnesses, or compel them to produce documents and no penalty is attached to the persons who fail to comply with a direction to attend to give evidence or to produce a document. But such an obligation, along with a penalty for non-compliance are provided in the case of an inquiry under Section 108; such inquiry has to be made only by a gazetted officer; it is also deemed to be judicial proceeding. A reference to the powers of investigations conferred on an officer-in-charge of a police station under Chapter XIV of the Code of Criminal Procedure can be made at this stage. Section 160 Cr. P.C. states that police officer has got power to require attendance before him for examination, and Section 161 provides that such a person shall be bound to answer all questions relating to the case put to him by the police officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty of forfeiture. We may also add that Section 104(4) of the new Act, treats all offences under the Act as non-cognizable. We may also add that Section 104(4) of the new Act, treats all offences under the Act as non-cognizable. This would mean that the power of the police to investigate into any offence under the Act of 1962 would be excluded automatically, whereas, if this provision had not been introduced. Schedule II of the Code of Criminal Procedure dealing with offences against other laws, would have given the police power to investigate into offences under the Sea Customs Act, if punishable with imprisonment for three years and above. 7.In regard to the power of search, there is an important variation in the new Act [Section 105(1)], because an Assistant Collector of Customs, in any area on the frontier or the coast of India, an officer of customs specially empowered by name, can either make a search himself or authorise a search by another officer without obtaining previously search warrant from a Magistrate; but Section 172 of the old Act required such a prior search warrant issued by a Magistrate, before a search can be conducted by a Customs Officer. 8.The question that is now pressed before us for consideration, is that the wider powers thus shown to have been conferred by the new Act on customs officers, would reveal on intention on the part of the Legislature, to treat them as police officers, within the meaning of Section 25 of the Indian Evidence Act. For this purpose, reliance is placed upon a later decision of the Supreme Court, in Raja Ram Jaiswal v. State of Bihar wherein, the Supreme Court had to interpret certain provisions contained in the Bihar and Orissa Excise Act (Act 2 of 1915), and in particular, Sec. 77(2) and Sec. 78 in the context of Section 25 of the Indian Evidence Act. Section 77(1) was in the following terms : "A Collector may without the Order of a Magistrate, investigate any offence punishable under this Act which a Court having jurisdiction over the local area within the limits of the Collector's jurisdiction would have power to inquire into or try under the provisions of Chapter XV of the Code of Criminal Procedure 1898, relating to the place of inquiry or trial." * 9.Section 78(3) of that Act provides that an excise officer empowered under Section 77(2) shall, for the purpose of Section 156 of the Code of Criminal Procedure, be deemed to be an officer in charge of a police station, with respect to the area to which his appointment as an excise officer extends. 10.Their Lordships carefully point out, after making a reference to their earlier decision in State of Punjab v. Barkat Ram, that they were examining a point which was left open in that decision, namely, whether officers of departments other than police, on whom the powers of an officer-in-charge of a police station under Chapter XIV of the Code of Criminal Procedure, were conferred, were police officers or not for the purpose of Section 25 of the Evidence Act. This would make it clear that in the later decision. Their Lordship were dealing exclusively with the interpretation of the Bihar and Orissa Excise Act of 1915, with particular reference to Section 78(3) contained therein, when terms are given above. 11.There are, in the course of the Judgment in Raja Ram Jaiswal v. State of Bihar certain observations which were relied upon by the counsel for the respondents before us, and which were also pressed into service in the order of the Sessions Judge, for holding that the customs officer exercising powers of investigation under Central Act 52 of 1962, is a police officer for the purpose of section 25 of the Indian Evidence Act. Thus, at page 833 of the report, the learned Judges observed that for the purpose of determining as to who can be regarded a "police officer" for the purpose of Section 25 of the Evidence Act the test is not the totality of the powers which an officer enjoys but the kind of powers which the law enables him to exercise. They make this position clear later on by remarking that the test will be to find out whether, such powers which are conferred on him, or which are exercisable by him, because he is deemed to be an officer-in-charge of a police station, establish a direct or substantial relationship with the prohibition enacted by Section 25, Indian Evidence Act that is, the recording of a confession. Then they observe that the existence of the power to grant bail in an officer-in-charge of a police station, itself enables him to exercise authority over the arrested persons and influence his conduct if he so wishes. They also observe that a Customs Officer who seizes or confiscates an article suspected to be contraband, has to furnish on demand of the person in charge of the thing so seized, a statement in writing of the reasons for such seizure, and a similar obligation is enjoined on him to give reasons in the case of a person arrested by him but no such duty is cast upon a police officer seizing an article or arresting a person. But, after making these remarks, Their Lordships have given the gist of their conclusions thus :- "It is worth of note that the powers of investigation into offences which a police officer enjoys are not conferred upon a Customs Officer. It is the possession of these powers which enable police officers and those who are deemed to be police officers to exercise a kind of authority over the persons arrested which facilitate the obtaining from them statements which may be incriminating to the persons making them............... It is the power of investigation which establishes a direct relationship with the prohibition enacted in Section 25." * 12.They also draw attention to the fact that one test of the investigation being analogous to the investigation conducted by a police officer under Chapter XIV of the Code of Criminal Procedure, would be the question whether the officer is entitled to submit a report to a Magistrate under Section 190 Cr. P. C. with a view that cognizance of the offence be taken by the Magistrate. But Section 187-A of the Sea Customs Act specifically provides that cognizance of the offence under the Sea Customs Act can be taken only upon a complaint in writing made by the Customs Officer. P. C. with a view that cognizance of the offence be taken by the Magistrate. But Section 187-A of the Sea Customs Act specifically provides that cognizance of the offence under the Sea Customs Act can be taken only upon a complaint in writing made by the Customs Officer. 13.In a recent decision of the Supreme Court in Badaku Joti Swant v. The State of Mysore, Cr. Appeal No. 26 of 1964 [1978 (2) E.L.T. (J 323) (S.C.)] a Bench of five Judges of the Supreme Court dealt with a case of prosecution under Section 167(81) of the Sea Customs Act (Act 8 of 1878) read with Sec. 9 of the Land Customs Act (Act XIV of 1924). The Deputy Superintendent of Customs who made the investigation was also a Central Excise Officer as defined under the Excise and Salt Act (Act 1 of 1944). That Act contained a provision Section 21, the material part of which reads thus : "When any person is forwarded under Section 19, to a Central Excise Officer, empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him.(2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 when investigation a cognizable case :" * Provided that............................................................... "It was pressed on Their Lordships that because of the powers thus conferred on the Central Excise Officer, the statement recorded by him would be hit under Section 25 of the Evidence Act, and the earlier decision of the Supreme Court in Raja Ram Jaiswal v. State of Bihar was relied on support. "It was pressed on Their Lordships that because of the powers thus conferred on the Central Excise Officer, the statement recorded by him would be hit under Section 25 of the Evidence Act, and the earlier decision of the Supreme Court in Raja Ram Jaiswal v. State of Bihar was relied on support. Repelling this contention Their Lordships pointed out that it did not appear that a Central Excise Officer under the Salt Act, had the power to submit a charge sheet under Section 173 of the Code of Criminal Procedure, but he would have to make a complaint under clause (a) of section 190, if he wants a Magistrate to take cognizance of an offence and this circumstance would show that though under sub-section (2) of Section 21, the Central Excise Officer has the powers of an officer-in-charge of a police station when investigating a cognizable case, that power was conferred only for the purpose of the inquiry under Section 21(1), but Section 21 was in terms different from Section 78(3) of the Bihar and Orissa Excise Act, 1915. They observed that the Bihar and Orissa Excise Act, 1915 contained a specific provision, that the area to which an excise officer empowered under section 77(2) is appointed shall be deemed to be a police station, and such officer shall be deemed to be the officer in charge of such station. They pointed out that there could be an enquiry or investigation into the question of the commission of a criminal offence which can be conducted by officers of other departments, but that would not make them police officers for the purpose of Section 25 of the Evidence Act, because" * otherwise any person entrusted with investigation under Section 202 of the Code of Criminal Procedure would become a police officer. "14.Their Lordships also pointed out that there had been in India two views, one a narrow view taken by the Patna High Court in Radha Kishan Marwari v. Emperor 1932 AIR(Patna) 293] and a wider view following that of the Bombay High Court in Nanoo Sheikh Ahmed v. Emperor. [AIR 1927 Bombay]. "14.Their Lordships also pointed out that there had been in India two views, one a narrow view taken by the Patna High Court in Radha Kishan Marwari v. Emperor 1932 AIR(Patna) 293] and a wider view following that of the Bombay High Court in Nanoo Sheikh Ahmed v. Emperor. [AIR 1927 Bombay]. They reached the conclusion mentioned above on the footing that the broader view should be adopted, but they also added that a great deal had to be said prima facie for the narrow view, and that if the narrow view were to be adopted in the case before them, the specific provision in Section 78(3) of the Bihar and Orissa Excise Act, 1915, would make all the difference. 15. It is appropriate to point out in this connection, that the Central Excise and Salt Act (Act 1 of 1944) has a provision regarding bail, in provision 3 to sub-section (2) of section 21, to the effect that if the Central Excise Officer was of the opinion that there was sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate. It is submitted by Shri V. T. Rangaswami Iyengar learned counsel for the revision petitioner that this provision did not deter the learned Judges in their latest decision from holding that 25 I.E.A. was not attracted in the case of an officer empowered to investigate under the Central Excise and Salt Act of 1944, and that therefore the observation regarding the powers to grant bail contained in the earlier decision of the Supreme Court, in Raja Ram Jaiswals case may not be a conclusion test. We are inclined to agree with this submission. We are inclined to agree with this submission. 16.The position that emerges in the light of the above clarification made in the latest decision of the Supreme Court in Badaku Joti Swant v. The State of Mysore, Criminal Appeal No. 26 of 1964 [1978 (2) E.L.T. (J 323) (S.C.)] is that for the purpose of Section 25 of the Evidence Act, it is important to find out whether the powers of investigation conferred on an officer other than a police officer in a particular enactment have been defined by that Act itself, as the powers of investigation conferred on the police officer, in-charge of a police station, under Chapter XIV of the Code of Criminal Procedure, with the consequence that the report which he submits at the end of the investigation, to the Magistrate, will be a charge sheet for the purpose of taking cognizance under section 190-B(1)(b) of the Code of Criminal Procedure by the Magistrate. Equally it will not be proper to pick out one or more of the powers conferred on the officer, and refer to them alone for the purpose of determining whether Section 25 of the Indian Evidence Act is attracted or not divorced from the broad question whether the power of investigation of a police officer, as such, is conferred by the enactment. Thus, the references to the power to grant bail, and the power to make arrest or the power to seize articles on search, which are found in Raja Ram Jaiswal v. State of Bihar must be considered only against the background of the power of investigation proper conferred by the enactment under consideration. It is only when such power of investigation has been rendered by the enactment, in fact as well as in law, the same as the powers of investigation of a police officer under Chapter XIV of the Code of Criminal Procedure, that Section 25 of the Evidence Act will be attracted. 17.The splitting up of the provision for investigation into two sections, Sections 107 and 108 in the new Customs Act of 1962, in our opinion, will not make any difference to the application of the principles above stated. Section 107 refers to an enquiry by a Customs Officer. As mentioned already, such enquiry does not have the attributes of a judicial proceeding unlike the inquiry under Section 108. Section 107 refers to an enquiry by a Customs Officer. As mentioned already, such enquiry does not have the attributes of a judicial proceeding unlike the inquiry under Section 108. It also does not enable the enquiring officer to compel the attendance or production of documents or things, and the witnesses also cannot be compelled to speak the truth under penalty. What Section 107 contemplates, is therefore, a less formal and rigorous type of enquiry, by customs officers; whereas Section 108 contemplates an enquiry which is almost parallel to the inquiry under Section 171 of the old Customs Act and is considered to be a legal proceeding. But neither the enquiry under Section 107 nor the inquiry under Section 108 can in any way, in substance are in law be considered to be the same as an investigation into a criminal offence, by an officer-in-charge of a police station under Chapter XIV of the Code of Criminal Procedure, which is the primary test for the application of 25 I.E.A. as laid down by the Supreme Court in the latest decision. 18.In view of the foregoing, we are of the opinion that the statements in the present case do not become inadmissible by reason of Section 25 of the Evidence Act. It consequently follows that they are also not hit by Section 162 Cr. P.C. 19.The question of the guarantee under Article 20(3) of the Constitution being available to the statements in the present case, has arisen for consideration by this Full Bench by reason of the fact that in an earlier Bench decision of this Court reported in Rainbow Trading Co. v Assistant Collector of Customs 1963 AIR(Mad) 434] the learned Chief Justice Ram Chandra Iyer and Anantanarayanan, J., (as he then was) expressed certain opinions, which have been pressed into service in this case by the learned counsel for the respondents accused. The facts in that case can be briefly set out. The appellant, a merchant at Madras had imported certain goods by a ship which arrived in Madras Harbour. There was a doubt entertained by the Customs Officers, as to whether the goods which he imported tallied with their description in the import licence. Therefore, the Customs Officers called upon the appellant to show cause why action should not be taken against him and the goods confiscated under Section 167(8) of the Sea Customs Act. Thereafter, the Asstt. There was a doubt entertained by the Customs Officers, as to whether the goods which he imported tallied with their description in the import licence. Therefore, the Customs Officers called upon the appellant to show cause why action should not be taken against him and the goods confiscated under Section 167(8) of the Sea Customs Act. Thereafter, the Asstt. Collector of Customs issued summons to the appellant under Sec. 171-A of the Sea Customs Act, asking him to give evidence and produce the relevant documents. The appellant refused to appear and give evidence and relied upon Article 20(3) of the Constitution for his defence. That Article of the Constitution states" * no person accused of any offence shall be compelled to be a witness against himself. "The appellant filed a Writ in this Court under section 226 of the Constitution, for the issue of a writ of prohibition against the Asst. Collector of Customs, to prevent him from enforcing his attendance. There was, in the earlier notice issued to the appellant in that case, a direction that he should explain why the department should not move for a prosecution against him. During the pendency of the writ petition, this portion in the notice was withdrawn. The learned Judge, Balakrishna Ayyar, J., who heard the writ petition observed that at the stage in which the proceeding was, no one was an accused person in any sense of the term that the circle of enquiry would in time become smaller, and the stage would be reached when there was a certain amount of suspicion against various persons; then the final stage is reached when the investigating authority considers that a particular person has committed an offence and decided to proceed............ against him in Criminal Court; it is at this stage that a person really becomes accused of an offence." * In view of the above considerations, the learned Judge held that the evidence which the appellant was asked to give, clearly referred to a stage anterior to the stage where he should be considered to be a person accused of an offender, and therefore the guarantee under Article 20(3) of the Constitution would not apply to him, and the writ petition was dismissed. 20.This view of Balakrishna Ayyar, J., was confirmed by the Bench of this Court in appeal. 20.This view of Balakrishna Ayyar, J., was confirmed by the Bench of this Court in appeal. That view is also supported by several decisions under analogous provisions of other enactments. Thus in Bhagwandas Goenka v. The Union of India, [Cr. App. 131 & 132 of 1961.] a case which arose under the Foreign Exchange Regulations. Their Lordships of the Supreme Court after referring to the earlier decisions including their decision in M.P. Sharma v. Satish Chandra [1978 (2) E.L.T. (J 287) (S.C.) = 1954 SCR 1077 ] held that "for invoking the constitutional right against testimonial compulsion guaranteed under Article 20(3) there must be at the relevant stage a formal accusation against the party pleasing the guarantee relating to the commission of an offence which way result in a prosecution. Their Lordships also observed that in the case before them, which are so under the Foreign Exchange Regulations, the stage would be reached when a show cause notice was issued (as against a prosecution). But in that particular case that stage had not been reached and therefore it was held that Article 20(3) would not apply. 21.In the present case, the lower court had not been required to consider whether the statements now under consideration were hit by Article 20(3) of the Constitution. This question was raised only in the course of the hearing before us. It appears that these Statements were recorded following upon certain recoveries of consignments of gold, from certain persons, or from certain localities, in the course of an investigation under Section 107 or Section 108 of the Sea Customs Act, 1962. But it is conceded before us that at the time when the statements were recorded, the investigation had not reached the stage when particular persons had been accused of an offence, within the meaning of Article 20(3) of the Constitution. Therefore we held that the constitutional protection thereunder cannot be availed of in respect of such statements. 22.However, in the Rainbow Trading Company case cited above, after expressing the view which we referred to earlier uphelding the decision of Balakrishna Ayyar, J., Ramachandra Iyer, C.J., at page 441 of the report observed :" * It is argued that if it were to be recognised that there is no prohibition against compelled testimony in proceedings under the Customs Act. "the guarantee under Article 20(3), itself, would become illusory as the confession can be obtained first under Section 171-A of the Sea Customs Act and then used for a prosecution. We cannot agree that it would be so. If for example a smuggler gives himself away during an examination under Section 171-A that evidence will nevertheless constitute a compelled testimony and can neither be relied on nor use against him in any criminal prosecution, as Article 20(3) will prevent it from being so used. So such can be taken as settled by Therefore any incriminating answers which a person examined under Sec. 171-A may give, can only be used for the purpose of the departmental punishment and not for a prosecution in a criminal court. In that case as well as in the more recent case in the State of Bombay v Kathi Kalu it has been expressly held that the protection guaranteed under Article 20(3) would comprehend both oral and written statements. A record of evidence of a person obtained under Section 171-A of the Sea Customs Act cannot be used against him at trial if he were to be charged in the Criminal Court." * 23.Anantanarayanan, J., (as he then was), at page 449 of the report, observed: "Of course, it is a heavy and true objection that the testimony thus compelled, in the guise of proceedings under Section 171-A of the Sea Customs Act, might be later utilised to prosecute the appellant, and thus effectively divest him of the protection of Article 20(3) by taking two steps instead of one. Answer to this objection has been clearly demonstrated, if I may say so with respect, by my Lord, the Chief Justice. Such compelled testimony cannot be later relied on or used in a criminal prosecution as, at that stage, used the protection of Article 20(3) will be available to the appellant. Answer to this objection has been clearly demonstrated, if I may say so with respect, by my Lord, the Chief Justice. Such compelled testimony cannot be later relied on or used in a criminal prosecution as, at that stage, used the protection of Article 20(3) will be available to the appellant. This fully disposes of the argument or objection upon this ground." * 24.Learned Counsel Sri Govind Swaminathan for some of the respondents and also the other Counsel who appear along with him for the other respondents relied upon these observations and contended that even if the statements of the respondents recorded during the enquiry under Section 107 or 108 are not hit by Article 20(3) of the Constitution, because at that time the persons did not stand as accused persons, at the present trial where they are standing as accused persons, they could rely upon the guarantee under Article 20(3) of the Constitution and insist upon the exclusion of such evidence. It is submitted by Sri V.T. Rangaswami Iyengar, learned Counsel for the petitioner herein, that the above observations of the two learned Judges in the Rainbow Trading Company case, require reconsideration for two reasons: one is that the decision of the Supreme Court in Sharma's case does not give any authority for such a view; secondly a later decision of 11 Judges of the Supreme Court reported in State of Bombay v. Kathi Kalu has set down certain principles, and if they are taken into account the statement of the law extracted above, by the two learned Judges in the Rainbow Trading Company case, will require reconsideration. 25.The first place, it appears to us that where evidence is given at a trial, regarding prior statements of a confessional nature given by the accused, it is not a case of the accused persons being compelled to be a witness against himself. In such circumstances the accused is not giving evidence; it is another person who appearing as a witness gives evidence; regarding what the accused told him at an anterior occasion when the accused did not stand in the position of an accused facing trial for a Criminal offence. In such circumstances the accused is not giving evidence; it is another person who appearing as a witness gives evidence; regarding what the accused told him at an anterior occasion when the accused did not stand in the position of an accused facing trial for a Criminal offence. What is involved in such a situation is the application of the principle enunciated in Section 21 of the India Evidence Act which lays down that admissions are relevant and may be proved as against the person who makes them or his representative in interest. 26.M.P. Sharma v. Satish Chandra [1978 (2) E.L.T. (J 287) (S.C.) = 1954 SCR 1077 ]. Their Lordships of the Supreme Court observed that the guarantee under Article 20(3) of the Constitution would be available to any compulsory process or production of evidentiary documents, which are reasonably likely to support the prosecution against the accused. But they held that the search or seizure of a thing or document cannot be treated as compelled production of the same. From the last mentioned reasoning they concluded that searches during the course of the investigation even of the premises of the accused will not be violation of Article 20(3). Then they made certain observations to the following effect at 1087 and 1088. "A person can" be witness "not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness or the like. "To be a witness" is nothing more than to furnish evidence" * , and such evidence can be furnished through the lips or by production of a thing or of a document in other modes. "To be a witness" is nothing more than to furnish evidence" * , and such evidence can be furnished through the lips or by production of a thing or of a document in other modes. ...............The phrases used in Article 20(3) is "to be a witness and not to appear as a witness it follows that the protection afforded to an accused in so far as it is released to the phrases, "to be a witness" is not merely in respect of testimonial compulsion in the court room but may well extended to compel testimony previously obtained from him" * 27.Had the above observations concluded with the last cited remark, it might perhaps be claimed that the Supreme Court was contemplating also the exclusion of a confessional statement previously obtained from the accused person, for being used in evidence against him at the subsequent trial; but immediately following the sentence : "It is available therefore to 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 prosecution" * 28.Will show that Their Lordships were having in mind only the exclusion of compelled testimony at a stage when the person giving such compelled testimony or whose compelled testimony in the shape of a document is being obtained, stands at that time in the position of an accused. There appears to be no basis in that decision for inferring that the Supreme Court contemplated that the guarantee under Article 20(3) will be available to the accused at a subsequent stage of a trial even if that guarantee was not available to him at the time, when the impugned "testimony" was given at an interior stage. The Supreme Court, in a later decision in which 11 Judges took part in State of Bombay v. Kathi Kalu differed from the observations in Sharma v. Satish Chandra [1978 (2) E.L.T. (J 287) (S.C.) = 1954 SCR 1077 ] in so far as they gave a wider connection to the meaning of "to be witness" in Article 20(3) of the Constitution; they held that the data gathered by obtaining the thumb impression or by the hand writing of a person or by exhibiting parts of his body for the purpose of identification cannot be included within the Scope of the expression "to be a witness". This part if any doubt could entertain in regard to the views of the Supreme Court in Sharma's case, on the specific question that has arisen for consideration now before us, the later decision clearly laid down at page 1817 of the report, as item 7 out of set of 7 conclusions arrived by them in the following terms : "To bring the statements in question within the prohibition of Art. 20(3), the person 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." * 29.Therefore, if at the trial evidence, is afforded, for example, of the prior thumb impressions taken by the accused during investigation or of a prior identification parade, it will become admissible in evidence because while giving the thumb impression of submitting himself to the identification, the accused cannot be considered to be acting as a witness against himself. Secondly, if a prior statement is given by a person at a time when he did not stand in the position of an accused, the guarantee under Article 20(3) of the Constitution, will not be available, if that statement is to be used as evidence against him when he is arranged as an accused at a subsequent trial. Further, it appears to us, that if any other view of S. 20(3) of the Constitution were to be adopted, evidence which under the Indian Evidence Act is admissible under the heading of "confessional statements", including both of non-judicial"nature, and also of a" judicial" nature recorded by a specially empowerd Magistrate under Section 164 Cr. P.C. will have to be excluded.30.We are therefore of the opinion that the bar under Article 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 1962, and at a time when the deponents did not stand in the position of accused in the light of the principles stated in the decision cited above.