Madras High Court
Asst. Collector Of Central Excise, ... vs R. Padmanabhan on 1 January, 1800
Equivalent citations: 1980(6)ELT631(MAD)
ORDER
1. This is an appeal by the Assistant Collector of Central Excise, Vellore Division, for enhancement of the sentence awarded to the accused in CA No. 181 of 1975 on the file of the Court of Session, Chingleput division.
2. The Assistant Collector of Central Excise, Vellore division, filed a complaint against the respondents herein for an offence punishable under S. 135(b)(ii) of the Customs Act, on the allegation that on 24-6- 1971, when the Sub-Inspector of Police, PIB, C.B. C.I.D., Madras intercepted the accused who was proceeding towards the Tiruttani Railway over bridge, after getting down from the Dadar - Madras Express carrying a suit case, he found in the suit case 216 wrist watches of foreign origin and since the accused could not produce any voucher or document for the possession of the some legally, he seized them. As the possession of such watches without a valid voucher or document is an offence punishable under Section 135(b)(ii) of the Customs Act, a complaint was filed by the Assistant Collector of Central Excise, Vellore division, before the Judicial First Class Magistrate, Tiruttani.
3. Nine witnesses were examined on the side of the prosecution. PWI is the Police officer, who intercepted the accused and seized the watched from him as aforesaid. PW 2 is the Station Master, who was present when the accused was intercepted and the suit case he was carrying was searched and 216 wrist watches of foreign origin were found therein. PW 4 was present when the accused gave a confessional statement Ex. P. 5 to P.W. 3 (Inspector of Central Excise and Customs) at his office at Vellore. It is not necessary to notice the evidence of the other witnesses for the purpose of this appeal.
4. After questioning the accused, the learned Magistrate, who was of the opinion that there was a prima facie case against the accused, framed a charge under Section 135(b)(ii) of the Customs Act, against the accused, over the same and called upon the accused whether he pleaded guilty or not. The accused pleaded not guilty. At the time of his further examination, the accused stated that one Jeevanlal, a person known to him at Bombay, placed the suit case on the berth he had reserved in the train and asked him (the accused) to hand over the same to his brother Heeralal, that Heeralal was not there, and that in the meantime, the police took him into custody. He also claimed ownership of the suit case. Though he cited Jeevanlal as a defence witness, Jeevanlal was not examined as a witness.
5. The learned Judicial First Class Magistrate, Tiruttani, convicted the accused under Section 135(b)(ii) of the Customs Act, and sentenced him to suffer rigorous imprisonment for six months and directed that Mos. 1, 2 and 4 to 10 shall be confiscated to the State and M.O. 3 shall be destroyed after the appeal time was over. He further directed that M.O. 1,2 and 4 to 10 shall be placed at the disposal of the Collector of Customs and Central Excise, Madras.
6. Against the conviction and sentence, the accused preferred C.A. 181 of 1975 on the file of the Court of Session, Chingleput division. When the appeal was taken up for hearing, the counsel for the accused did not canvass the correctness of the conviction, but was content to press the appeal on the question of sentence only. He contended that the appellant was a first offender, who repented for his action. On the basis of this contention, the learned Sessions Judge has observed that-
"There is nothing in the record to show anything bad about the antecedents of the appellant. The appellant had been in custody during investigation for three days. He has suffered the ordeal of the prolonged trial sufficient as to learn a good lesson out of it. Taking all these things into consideration, I feel that the sentence could be modified confirming the conviction".
In the result, the learned Sessions Judge confirmed the conviction of the accused under Section 135(b)(ii) of the Customs Act passed by the Judicial First Class Magistrate, Tiruttani in C C No. 44 of 1974, but reduced the sentence of rigorous imprisonment for six months to the period of intention undergone during investigation and enquiry of the case and in addition sentenced him to pay a fine of Rs. 300, and in default to suffer rigorous imprisonment for two months. Therefore, the Assistant Collector of Central Excise, Vellore division, Vellore, has preferred this appeal for enhancement of the sentence.
7. It is now contended by the learned course for the respondent that an appeal for enhancement of the sentence by the Assistant Collector of Central Excise is not competent in view of the provisions of Section 377 of Crl. P.C. which lays down in sub-sect. (1) that-
"Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy."
Prior to the amendment by Central Act 45 of 1978, when the appeal was filed, Section 377(2) of Crl. P.C., was to the effect that-
"If such conviction is in a case in which the offence has been investigated by the Delhi Special Police establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy."
By Central Act 45 of 1978, Section 377 Crl. P.C., has been amended by substituting in sub-section (2) the words `the Central Government may also direct' for the words `the Central Government may directs. The amendment does not affect the merits of the argument of the learned counsel for the respondent in this case. The contention of the learned counsel for the respondent is that the offence in the instant case having been investigated by an agency empowered to make such an investigation into the offence under the Customs Act, the Public Prosecutor alone on the directions of the Central Government can present an appeal to the High Court against the sentence on the ground of its inadequate. This contention appears to be well founded on a careful reading of S. 377(2) of Crl. P.C. The Officials of the Customs department, who have been empowered by the Customs Act to arrest, search the premises, stop and search conveyances, examine persons issue summons to persons to give evidence and produce documents, seize goods, etc., do so by virtue of the provisions incorporated in Ss. 104 to 107, 108 and 110 of the Customs Act.
S. 104 of the Customs Act reads as follows-
"104. (1) If an officer of Customs empowered in this behalf by general or special order of the Collector of Customs has reason to believe that any person in India or within the Indian Customs Waters has been guilty of any offence punishable under S. 135, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a Magistrate.
(3) Where an officer of Customs has arrested any person under sub-section (1), 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 in subject to under the Criminal Procedure Code, 1973 (2 of 1974).
(4) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974), an offence under this Act Shall not be cognizable."
By Section 105 of the Customs Act, the power to search premises has been conferred. Section 105 lays down that-
"105. (1) If the Assistant Collector of Customs, or in any area adjoining the land frontier or the coast of India an officer of customs specially empowered by name in this behalf by the Board, has reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceedings under this Act, are secreted in any place, he may authorise any officer of customs to search or may himself search for such goods, documents or things.
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches shall, so far as may be, apply to searches under this section subject to the modification that sub- section (5) of Section 165 of the said Code shall have effect as if the word `Magistrate', wherever it occurs, the words `Collector of Customs' were substituted."
Section 106 of the Customs Act reads as follows-
"106. (1) Where the proper officer has reason to believe that any aircraft, vehicle or animal in India or any vessel in India or within the Indian customs waters has been, is being, or is about to be, used in the smuggling of any goods or in the carriage of any goods which have been smuggled, he may at any time stop any such vehicle, animal or vessel or, in the case of an aircraft, compel it to land, and
(a) rummage and search any part of the aircraft, vehicle or vessel;
(b) examine and search any goods in the aircraft, vehicle or vessel or on the animal;
(c) break open the lock of any door or package for exercising the powers conferred by clauses (a) and (b), if the keys are withheld.
(2) Where for the purpose of sub-section (1) - (a) it becomes necessary to stop any vessel or compel any aircraft to land, it shall be lawful for any vessel or aircraft in the service of the Government while flying her proper flag and any authorised in this behalf by the Central Government to summons such vessel to stop or the aircraft to land, by means of an international signal, code or other recognised means, and thereupon such vessel shall forthwith stop or such aircraft shall forthwith land; and if it fails to do so, these may be given thereto by any vessel or aircraft, as aforesaid and if after a gun is fired as signal, the vessel fails to stop or the aircraft fails to land, it may be fired upon;
(b) it becomes necessary to stop any vehicle or animal, the proper officer may use all lawful means for stopping it, and where such means fail, the vehicle or animal may be fired upon."
By Section 107 of the Customs Act-
"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 enquire; (b) examine any person acquainted with the facts and circumstances of the case."
By Section 108(1) of the Customs Act, every gazetted officer of Customs is vested with the power "to summon any person whose attendance he considers necessary either to give evidence or to produce documents or any other thing in any enquiry which such officer is making in connection with the smuggling of any goods." By reason of sub-section (2) of Section 108 of the Customs Act-
"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"
By reason of sub-section (3) of Section 108 of the Customs Act-
"All persons so summoned shall be bound to attend either in person or by an authorised agent and such officer may direct and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined ore make statements and produce such documents and other things as may be required :
Provided that the exemption under Section 132 C.P.C., 1908 shall be applicable to any requisition for attendance under this section."
Sub-section (4) of Section 108 lays down that, "Every such enquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228, I.P.C."
Section 110 of the Customs Act lays down that, "1. If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods :
Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owners of the goods an order that he shall not remove, part with, or otherwise with the goods except with the previous permission of such officer.
2. Where any goods are seized under sub-section (1) and no notice in respect thereof is given under (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized.
Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months;
3. The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act;
4. The person from whose custody any documents are seized under sub- sec.(3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs"
It is in exercise of the powers conferred on them by the sections of the Customs Act extracted and cited above, that the Customs Officials in the instant case have intercepted the accused, seized the contraband articles, arrested the accused, gathered evidence against him, recorded the statements of the witnesses and seized the goods. If, therefore, the Customs Officer in the instant case, who enquired into the conduct of the accused and gathered evidence against him and seized the goods, can be deemed to have investigated into any offence, he can be deemed to have done so only by virtue of the powers of investigation conferred on him under a Central Act, viz., the Customs Act and if such be the case, the provisions of sub-sect. (2) of Section 377 of Crl P.C., will apply, and the Central Government alone prior to the amendment by Act 45 of 1978, may direct the Public Prosecutor, to present an appeal to the High Court against the sentence on the ground of its inadequate. However, the Customs Act has not empowered any Customs official to make an investigation within the meaning of the Criminal Procedure Code.
8. In the State of Punjab v. Bukratma, , the Supreme Court has considered the duties and powers of a police officer and those of customs officers, and has observed as follows :-
"The Police Act, 1861 (Act V of 1861), is described as an Act for the regulation of police, and is thus an Act for the regulation of that group of officers who come within the word `police' whatever meaning be given to that word. The preamble of the Act further says : `Whereas it is expedient to reorganise the police and to make it a more efficient instrument for the prevention and detection of crime, it is enacted as follows. This indicates that the police is the instrument for the prevention and detection of crime which can be said to be the main object and purpose of having the police. Secs. 23 and 25 lays down the duties of the police officers and Sec 20 deals with the authority they can exercise. They can exercise such authority as is provided for a police officer under the Police Act and any Act for regulating criminal procedure. The authority given to police officers must naturally be to enable them to discharge their duties efficiently. Of the various duties mentioned in Section 23 the more important duties are to collect and communicate intelligence effecting the public peace, to prevent the commission of offences and public nuisances and to detect and bring offenders to justice and to apprehend all persons whom the police officer is legally authorised to apprehend. It is clear therefore, in view of the nature of the duties imposed on the police officers, the nature of the authority conferred and the purpose of the Police Act, that the powers which the police officer enjoy are powers for the effective prevention and detection of crime in order to maintain law and order.
The powers of customs officers are really not for such purpose. Their powers are for the purpose of checking the smuggling of goods and the due realisation of customs duties and to determine the action to be taken in the interests of the revenues of the country by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines. Reference to Section 9(1) of the Land Customs Act may be usefully made at this stage. It is according to the provisions of this sub-section that the provisions of the Sea Customs Act and the orders, rules etc., prescribed thereunder, apply for the purpose of levy of duties of land customs under the Land Customs Act in like manner as they apply for the purpose of levy of duties of customs Act in like manner as they apply for the purpose of levy of duties of customs on goods imported or exported by sea. This makes it clear that the provisions conferring various powers on the Sea Customs Officers are for the purpose of levying and realisation of duties of customs Officers also for the same purpose. Apart from such an expression in Section 9(1) of the Land Customs Act, there are good reasons in support of the view that his powers conferred on the Customs Officers are different in character from those of the police officers for the detection and prevention of crime and that the powers conferred on them are merely for the purpose of ensuring that dutiable goods do not enter the country without payment of duty and that articles whose entry is prohibited are not brought in. It is with respect to the detecting and presenting of the smuggling of goods and preventing loss to the Central Revenues that Customs Officers have given the power to search the property and person and to detain them and to summon persons to give evidence in an enquiry with respect to the smuggling of goods.
The preamble to of the Sea CUstoms Act says - `Whereas it is expedient to consolidate and amend the law relating to the levy of Sea Customs duties.' Practically, all the provisions of the Act are enacted to achieve this object. Section 167 gives a long list of offences, but it is to be noticed that with the exception of certain offences, all the others are to be dealt with by the Customs Officers in view of Section 182. The Customs Officers are given the power to confiscate, to fix the duty and to impose penalties which can, in certain cases, be of enormous amounts. The offences mentioned Section 167 which are to be dealt with by a Magistrate, are mostly of the type in which the Customs Officers have nothing to investigate. Offences at items Nos. 23 to 28 are with respect to certain acts committed by a pilot or a master of a vessel. The Customs staff has merely a report the conduct for trial before a Magistrate. They have nothing to investigate about it, similarly, the offence at item 72 relating to a person's making a false declaration. Offences at items Nos. 74, 75 and 76 are with respect to the conduct of the Customs Officers themselves. Items Nos. 76-A, 76-B and 78 deal with the obstruction by smugglers to the performance of duty by the Customs Officer. The offence at Item No. 77 relates to an offence where a police officer neglects to do his duty. Item 81 creates an offence with respect to a person doing certain things to defraud the Government. The Customs Officer, therefore, is not primarily concerned with the detection and punishment of crime committed by a person but is mainly interested in the collection and prevention of smuggling of goods and safeguarding the recovery of customs duties. He is more concerned with the goods and customs duty, than with the offender."
9. Later on, the Supreme Court has expressed the opinion that, "the duties of the Customs Officers are very much different from those of the police officers and that their possessing certain powers, which may have similarity with those of police officers, for the purpose of detecting the smuggling of goods and the persons responsible for it, would not make them police officers".
It was also observed that the Customs Officers, why they not under the Sea Customs Act, to prevent the smuggling of goods by imposing confiscation and penalties, act judicially.
Thus, it would been that the Customs Officers have not the powers of a police officer for the purpose of investigation with the meaning of the Criminal Procedure Code and that on the other hand, they have powers to adjudicate, confiscate, etc., which the Police have not Eknath v. State of Maharashtra, , the Supreme Court has again considered the meaning of the words `By any others agency empowered to make investigation into any offence under any Central Act" in Section 377(2) of Cr. P.C. in connection with an investigation under the Prevention of Food Adulteration Act and Held that-
"If in any other Central Act, not being the Code of Criminal Procedure, a provision is made for empowering a particular agency to make investigation of offences under that Act, then also the Central Government alone will be the competent authority to proper appeal under Section 377(2) of Cr. P.C. The true test, therefore, under Section 377(2) of Cr. P.C. is whether the offence is investigated by any other agency empowered to make investigation under any Central Act other than the Criminal Procedure Code. In other words, just like Section 3 of the Delhi Special Police Establishment Act, there should be an express provision in the Prevention of Food Adulteration Act, empowering the making of investigation under under the Act."
Again it was observed that -
"More provision of an in built mechanism of some kind of investigation in that Act is not decisive of the matter. There should be an express provision in that Act empowering the Food Inspectors to make investigation of offences under the Act... In the absence of any express provision in the Act in that behalf it is not possible to hold that the Food Inspectors are empowered to make investigation under the Act.
10. It is pertinent to note at this stage there is no express provision empowering his making the investigation under that Act. The ratio of the decisions cited above is applicable to the instant case.
11. In the State of Maharashtra v. Laxmichand Varhomal 1978 Cr. L.I. 845, a Bench of the Bombay High Court has held that the machinery created under the Customs Act is not one for the purpose of investigation into crimes.
Speaking for the Bench, Deshmukh J. has observed that-
"The machinery is, however, not created for the purpose of investigation of crime under any Central Act. It cannot be said that is a separate machinery for the purpose of investigation of crimes by passing the provisions of the Criminal Procedure Code."
With respect, I am in agreement with the view expressed by the Bench of the Bombay High Court in the decision referred to above, and I am of the opinion that in exercising the powers conferred on him by Secs. 104, 105, 106, 107, 108 and 110 of the Customs Act, the Customs officer is not acting as an investigating officer and, therefore, in the instant case, the appellant should have moved the Stage Government to direct the Public Prosecutor to present as appeal to the High Court against the sentence on the ground of its inadequacy. The appeal by the Assistant Collector of Central Excise, Vellore division, is not competent, as he has no locusstandi to file an appeal. Even if the Assistant Collector of Customs can be deemed to be an agency empowered to make investigation, into an offence under the Customs Act, this appeal by him is not maintainable.
12. The appeal is, therefore, dismissed.
13. After the judgment was pronounced, the learned counsel for the appellant wants leave for filing an appeal to the Supreme Court. The judgment is based on a plain reading of sub-secs. (1) and (2) of Section 377 of Cr- P.C. and on the irrefutable fact that the appeal has been filed by the Assistant Collector of Customs, and therefore, I am of the opinion that this is not a fit case for appeal to the Supreme Court. Leave refused.