M. G. ANAND v. STATE — 1985 DIGILAW 234 (GUJ)

B. S. KAPADIA, J. ( 1 ) * * * * ( 2 ) IN view of the evidence discussed hereinabove apart from other evidence on the record the convictions referred to hereinabove can be sustained. But the prosecution has also relied on the statements of the accused recorded during the inquiry. The accused No. 1 has given the statement at Ex. 36 on 11-9-1978 Ex. 37 on 11-9-1978 Ex. 40 which is a copy of the Ex. 57 given on 11-9-78 Ex. 38 on 12-9-1978 and Ex. 42 on 14-9-1978. Material part of the aforesaid statements have been discussed while considering the arguments advanced on behalf of the accused No. 1 and dealing with the evidence against the accused No. 1. ( 3 ) THE accused No. 2 has also given the statements at Ex. 34 dt. 9-9-1978 Ex. 39 dt. 11-9 -1978 Ex. 63 dt. 12-9-1978 Ex. 94 dt. 25 Ex. 263 dt. 21-9-1978 Ex. 221 dt. 24-11-1978 Ex. 225 dt. 4 Ex. 230 dt. 7-2-1979 and Ex. 231 dt. 8-2-1979. ( 4 ) THE accused No. 3 has also given the statement at Ex. 189 dt. 1-9-1978 Ex. 262 dt. 8-9-1978 Ex. 443 dt. 15-9-1978 and Ex. 195 dt. 26-9-1978. ( 5 ) THE submission of Mr. M. C. Bhatt on behalf of the accused Nos. 2 3 and 4 is that the Excise Officers are Police Officers and therefore the statements recorded by them which are in the nature of confession are inadmissible in evidence. ( 6 ) IT may be stated that this very contention was raised before the learned Special Judge and the learned Special Judge has rightly held that there is hardly any substance in the contention and also he referred to the decision of the Supreme Court in the case of Badaku Joti v. State of Mysore reported in AIR 1966 S. C. page 1746. In the said case the Supreme Court after considering the relevant portion of the Central Excise Act has in terms held that even though the Central Excise Officer may have been making inquiries for purposes of the Act powers which an officer-in-charge of a Police Station has when investigating a cognizable offence he does not thereby become a police officer even if we give the broader meaning to those words in sec. 25 of the Evidence Act and it was held by the Supreme Court in the said case that the statement made by the appellant to the Deputy Superintendent of Customs and Excise would not be hit by sec. 25 of the Evidence Act and would be admissible in evidence unless the appellant can take advantage of sec. 24 of the Evidence Act. In that view of the matter we also do not find any substance in this contention and hence reject the same. ( 7 ) DURING the course of the arguments Mr. M. C. Bhatt the learned Advocate appearing on behalf of the accused Nos. 2 3 and 4 has presented a Misc. Criminal Application No. 1416 of 1985 in the Criminal Appeal No. 249 of 1982 and sought permission to add certain grounds in the appeal. One of the grounds which he wanted to add was that the statements of the accused Nos. 1 2 and 3 alleged to have been recorded by the Excise Officers are not admissible in the trial court against the accused under the provisions of the Indian Penal Code. Secondly that the said statements recorded under the said Act by the Excise Officers cannot be used as evidence against the said persons in the criminal trial who stand charged under the common law and that the relevancy of the said statements is not extended in respect of the statements of the persons who would be ultimately accused in a trial in which the charges are levelled under any other provisions except the said Act namely the Central Excise Act and more particularly in a trial for the charge under the provisions of the Indian Penal Code. On this point Shri Bhatt has relied on the provisions of sec. On this point Shri Bhatt has relied on the provisions of sec. 9d of the Central Excises and Salt Act 1944 and submitted that as per the said section a statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant for the purpose of proving in any prosecution for an offence under this Act the truth of the facts which it contains in the circumstances narrated in clauses (a) and (b) thereof and particularly when the person who made the statement is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or whose presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the Court considers unreasonable and secondly when the person who made the statement is examined as a witness in the case before the Court and the Court is of the opinion that having regard to the circumstances of the case the statement should be admitted in evidence in the interest of Justice. Relying on the aforesaid provisions he submits that it cannot be used in this proceeding where the offence under the provisions of the Central Excise Act is not charged against the accused. ( 8 ) IT is true that in the charge there is no charge levelled against any of the accused under the provisions of the Central Excise Act. However sec. 9d of the said Act is an enabling provision and therefore that provision of sec. 9d cannot be brought in aid for the purpose of admitting in the case those statements which are referred to hereinabove. However they would be admissible as admissions or confessions under the provisions of the Evidence Act. In that view of the matter this argument based on the provisions of the sec. 9d of the Excise Act does not help the accused in raising the additional ground for making those statements inadmissible when they are admissible under the provisions of the Evidence Act. Sec. 9d of the said Act is enabling provision and it adds to the relevancy in the proceedings under the Central Excise Act clear that it does not override any of the provisions of the Indian Evidence Act. Sec. 9d of the said Act is enabling provision and it adds to the relevancy in the proceedings under the Central Excise Act clear that it does not override any of the provisions of the Indian Evidence Act. Under the circumstances this argument of Mr. Bhatt cannot be accepted. ( 9 ) THE second ground raised in the said Application is that if suck statements of the accused recorded by the Central Excise Officers under sec. 14 of the Central Excise Act can be used against the persons in the criminal trial against them in the case under the provisions of the Indian Penal Code or under any other provisions of the Act for the time being in force the provisions of sec. 14 of the said Act would violate Article 20 (3) of the Constitution of India and therefore it is submitted that sec. 14 of the Excise Act and all the actions under the provisions of the said Act and sec. 9d of the Act violate Art. 20 sub- clause (3) of the Constitution. It may be stated that at the time of arguments Mr. M. C. Bhatt has not challenged the validity and/or vires of secs. 14 and/or sec. 9d of the Excise Act on the ground that they violate the provisions of the Art. 20 sub-clause (3) of the Constitution. But admissibility of the said statements in view of Art. 20 sub-clause (3) of the Constitution has been challenged which will be considered on merits later on. ( 10 ) IN the aforesaid application he has also submitted that in view of Art. 21 of the Constitution of India which provides that nobody can be deprived of his life and property without following fair just and proper procedure. The action of the Central Excise Officers in recording the statements of the accused Nos. 2 3 and 4 under sec. 14 of the Central Excise Act is ultra vires the Constitution but ultimately Mr. M. C. Bhatt has also not pressed this point also and he has only confined his arguments to the admissibility of those statements in view of Art. 20 sub-clause (3) of the Constitution of India. Under the circumstances he is permitted to raise the point of admissibility of the statements of the accused recorded by the Excise Officers even without amending the memo of the appeal and therefore the aforesaid Misc. Under the circumstances he is permitted to raise the point of admissibility of the statements of the accused recorded by the Excise Officers even without amending the memo of the appeal and therefore the aforesaid Misc. Criminal Application does not survive and accordingly it is disposed of. ( 11 ) ON the point of admissibility of the statements of the accused it may be stated that for attracting the application of Art. 20 (3) of the Constitution of India what is first necessary is formal accusation and secondly there should be compulsion. In the case of Ramesh Chandra v. State of West Bengal AIR 1970 SC 940 the Supreme Court has held that by Art. 20 (3) of the Constitution a person who is accused of any offence may not be compelled to be a witness against himself the guarantee is it is true not restricted to statements made in the witness box. The Supreme Court in the case of State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808 has observed that to be a witness means imparting knowledge in respect of relevant facts by an oral statement in writing made or given in Court or otherwise. Further it is observed that to be a witness in its ordinary grammatical sense means giving oral testimony in Court. Case law had gone beyond this strict literal interpretation of the expression which may now bear a wider meaning namely bearing testimony in Court or out of Court by a person accused of an offence orally or in writing. But in order that the guarantee against testimonial compulsion incorporated in Art. 20 (3) may be claimed by person it has to be established that when he made the statement sought to be tendered in evidence against him? he was a person accused of an offence. ( 12 ) SIMILARLY in the case of Veer Ibrahim v. State of Maharashtra AIR 1976 SC 1167 in para G it is held as under:"6 From an analysis of the 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 prosecution would fall within its ambit". In that view of the matter it would be now necessary to see as to when the formal accusation was made. ( 13 ) IT may be stated that in this case one complaint at Ex. 306 dated 10-9-1978 was filed before the Nadiad Police Station by Shri K. N. Shukla for the theft of the pad containing TP-1 Permits Nos. 105001 to 105050. On perusal of the said complaint it is clear that it is a general complaint and it is not against any one. No accusation is made against any of the accused in the said complaint. The second complaint which was filed by Shri Zutai is at Ex. 67. It is dated 12 wherein the reference of the aforesaid complaint is made. On perusal of the said complaint it is clear that on the next day the S. P. was to be seen for favour of perusal and orders. In the said complaint the allegation is made that M. G. Anand (accused No. 1) has stolen the Transport Permit Pad surreptitiously and used and thereby causing evasion of Government revenue for unlawful consideration and there also the reference of statement of Shantilal Parshottamdas Patel (accused No. 2) has been made to show the corroboration of the conspiracy between the various persons and Mr. M. G. Anand to evade the government revenue. Thus it appears that this complaint was thereafter filed and therefore it is filed on 13th/ 14/09/1978 inasmuch as the formal accusation is made only in that complaint. It may be noted that subsequently the FIR dated 26-9-1978 is filed which is marked-G but that has not been exhibited. But the complaint dated 12 is earlier in point of time on the point of formal accusation against the accused. In that view of the matter any statement made before 14/09/1978 will not be hit by Art. 20 (3) of the Constitution of India. In that view of the matter the statements of the accused No. 1 at Exs. But the complaint dated 12 is earlier in point of time on the point of formal accusation against the accused. In that view of the matter any statement made before 14/09/1978 will not be hit by Art. 20 (3) of the Constitution of India. In that view of the matter the statements of the accused No. 1 at Exs. 36 37 57 and 38 would not be hit by the provisions of Art. 20 (3) of the Constitution as they were made prior to the formal accusation. Similarly the statements of the accused No. 2 at Exs. 189 and 262 also will not be hit as they are made prior to the formal accusation. Similarly the statements of the accused No. 3 at Exs. 34 39 and 63 also will not be hit as they are also made prior to the formal accusation. ( 14 ) THEREFORE the next point would be about the compulsion for attracting the applicability of Art. 20 (3) of the Constitution of India for the remaining statements. In the case of R. K. Dalmia v. Delhi Administration AIR 1962 SC 1821 the Supreme Court has held that Dalmia was not in duress at the time he has made that statement and therefore was not compelled to make. It was said in the aforesaid case ( AIR 1961 SC 1808 relevant page 1816) `compulsion in the context must mean what in law is called `duress. The compulsion in this sense is a physical objective act and not the state of mind of the person making the statement except where the mind has been so conditioned by some extraneous process as to render the making of the statement voluntary and therefore extorted. In that view of the matter when it is to be considered as to whether the present accused was compelled to be a witness against himself one has to see as to whether there was any duress. ( 15 ) HOWEVER Mr. Bhatt appearing for the accussed Nos. 2 3 and 4 has relied on the judgment of the Bombay High Court in the case of Ambalal chimanlal Choksi v. State AIR 1966 Bombay page 243. ( 15 ) HOWEVER Mr. Bhatt appearing for the accussed Nos. 2 3 and 4 has relied on the judgment of the Bombay High Court in the case of Ambalal chimanlal Choksi v. State AIR 1966 Bombay page 243. In the said case it is held that Article 20 deals with and confers various privileges upon a person either in the conduct of the criminal proceedings or in respect of the proceedings and clause (3) of the Art. 20 clearly confers privilege upon an accused person that he shall not be compelled to be a witness against himself. In other words it confers immunity upon the accused person against testimonial compulsion. Before Art. 20 (3) is brought into play three conditions must be fulfilled (i) that at the time when he made the statement there was a formal accusation of the commission of the offence against him (ii) that he was compelled to make those statements and (iii) that the statements which intended to be used against him at the trial were incriminatory in nature. In the said case it was held that failure to furnish information to officer under Gold Control Rules Rule 126 (1) (iv) by omitting to make statement would attract penal provision of Rule 126 (p) (1) (ii ). The observations on the point of compulsion were made in the revision application in which the question of inadmissibility of certain statements made by the petitioner-accused to the Central Excise Officer on the ground of immunity claimed under sub-clause (3) of Art. 20 of the Constitution of India was raised but ultimately the revision application was dismissed on the ground that the petitioner was not accused of any offence at the material time when the statements and questions made by him to the Central Excise Officer and therefore privilege of immunity claimed by him cannot be availed of by him. In the said case the observations are made in para 12 as under:". . In the said case the observations are made in para 12 as under:". . It is therefore clear that since the petitioner-accused in the present case was interrogated by the Central Excise Officers who were conducting the inquiries under the powers vested in them by virtue of Gold Control Rules and was bound to give answers or replies to such interrogation he was legally compelled to make the statements in question to the Central Excise Officers and therefore the relevant condition required by Article 20 (3) of the Constitution for the applicability thereof could be said to have been fulfilled in this case". ( 16 ) MR. M. C. Bhatt relying upon the aforesaid observation submitted before us that as there was a legal compulsion to give the true answers under sec. 14 of the Excise Act and when the statements are recorded after the formal accusation is made he is immuned from making such statements under Art. 20 (3) of the Constitution and when such statements are recorded and tried to be used against accused they are inadmissible in evidence particularly when they are incriminatory in nature. ( 17 ) IT may be stated that the learned Judge of the Bombay High Court as he then was now Honourable Judge of the Supreme Court has though considered the case of the Supreme Court in the case of State of Bombay v. kathi Kalu AIR 1961 SC 1808 on the point of conclusions drawn it appears that it has escaped the notice on the point of compulsion which has been referred to in the judgment considered just hereinabove (AIR 1962 SC 1870 290 ). In view of the aforesaid view of the Supreme Court that the compulsion requires duress and the decision in AIR 1978 SC 1025 which are binding and further that it was not the point on which the revision application was decided by the Bombay High Court and it is merely an observation the above observation of the Bombay High Court cannot be accepted and hence it is held not be useful to the accused-appellant. ( 18 ) THE last case on which our attention was drawn was the case of Nandini Satpati v. P. L. Dani AIR 1978 SC 1025 . In the said case the complaint was filed by the Dy. S. P. Vigilance Cuttack against Nandini Satpati former Chief Minister of Orissa under sec. ( 18 ) THE last case on which our attention was drawn was the case of Nandini Satpati v. P. L. Dani AIR 1978 SC 1025 . In the said case the complaint was filed by the Dy. S. P. Vigilance Cuttack against Nandini Satpati former Chief Minister of Orissa under sec. 179 of the IPC before the sub-Divisional Magistrate Cuttack substantially alleging that she failed to answer the interrogations by the police. Cognizance was taken by the Magistrate and being aggrieved by the said action High Court was moved under Art. 227 of the Constitution and sec. 401 of the Criminal Procedure Code challenging the validity of the magisterial proceedings and as she did not succeed in the High Court she moved the Supreme Court by a certificate under Art. 132 (1) of the Constitution. In the said judgment the Supreme Court has held in para 53 as under:"53 We hold that Sec. 161 enables the police to examine the accused during investigation. The prohibitive sweep of Art. 20 (3) goes back to the stage of police interrogation - not as contended commencing in court only. In our judgment the provisions of Art. 20 (3) and sec. 161 (1) substantially cover the same area so far as police investigations are concerned. The ban on self-accusation and the right to silence while one investigation or trial is under way goes beyond that case and protects the accused in regard to other offences pending or imminent which may deter him from voluntary disclosure of criminatory matter. We are disposed to read compelled testimony as evidence procured not merely by physical threats or violence but by physic torture. atmospheric pressure environmental coercion overbearing and intimidatory mathods and the like - not legal penalty for violation. So the legal perils following upon refusal to answer truthfully cannot be regarded as compulsion within the meaning of Art. 20 (3) The prospect of prosecution may lead to legal tension in the exercise of a constitutional right but then a stance of silence a calculated risk. On the other hand if there is any mode of pressure direct or indirect but sufficiently substantial applied to the policeman for obtaining information from an accused strongly suggestive of guilt it becomes compelled testimony violative of Art. 20 (3)". On the other hand if there is any mode of pressure direct or indirect but sufficiently substantial applied to the policeman for obtaining information from an accused strongly suggestive of guilt it becomes compelled testimony violative of Art. 20 (3)". Reading this judgment it is clear that legal perils following upon refusal to answer or answer truthfully cannot be regarded as compulsion within the meaning of Art. 20 (3) of the Constitution. In that view of the matter merely because person to whom summons has been issued under sec. 14 of the Central Excise Act refuses to answer or answer truthfully cannot be considered to be compelled testimony. Under the circumstances we are unable to uphold the contention that the statement recorded by the Central Excise Officers even after the formal accusation is hit by the provisions of Art. 20 (3) of the Constitution of India only on account of the legal compulsion to give answer in pursuance of the summons issued under sec. 14 of the Central Excise Act. ( 19 ) ONE of the arguments advanced by Shri M. C. Bhatt the learned Advocate appearing for the accused Nos. 2 3 and 4 with regard to the compulsion and for attracting the provisions of Art. 20 (3) of the Constitution in respect of the aforesaid statement of the accused Nos. 2 and 3 is that it is the result of the interrogation and therefore it is not voluntary. It may be stated that reply to this argument is afforded in the case of Ahmedmiya Bhaimiya and Others v. The State AIR 1963 Gujarat page 159. In the said case after relying on the judgment of the Supreme Court reported in AIR 1961 SC 1808 it has observed as under:". . . . . . IT was decided by a majority out of 11 Judges who heard this matter that so far as sec. 27 of the Evidence Act was concerned there must have been compulsion of the person concerned to make Article 20 (3) applicable and it was also held that the mere questioning of an accused person by a police officer resulting in a voluntary statement which may ultimately tu turn out to be incriminatory is not compulsion. . . . . . . . . . . "further on page 1816 of the said judgment the Supreme Court observed as under:"an accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody without anything more. In other words the mere tact of being in police custody at the time when the statement in question was made would not by itself as a proposition of law lead itself to the inference that the accused was compelled to make the statement though that fact in conjunction with other circumstances disclosed in evidence in a particular case would be relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement". Further the Division Bench of this Court in the said case has held that `the majority view as we have pointed out above was that the mere questioning by a police officer of an accused when he is in police custody is not compulsion within the meaning of Article 20 (3) of the Constitution of India. . . . . . . In that view of the matter now it is clear that none of the statements of the accused is hit by the provisions of Art. 20 (3) of the Constitution even when they were recorded after the formal complaint is filed inasmuch as there was no compulsion as interpreted by the Supreme Court in the aforesaid case. Appeal of accused Nos. 1 2 and 3 dismissed: Accused Nos. 4 and 5 acquitted. .