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672

VEERA IBRAHIM

v.

STATE OF MAHARASHTRA

March 18, 1976

[R. S. SARKARIA AND N. L. UNTWALIA, JJ.]

Constitution of India, Art. 20(3), conditions for applicabilitv of, whether

enquiry is 'accusation' lvithin the meaning of-Evidence Act, S. 24, when

attracted-What amounts to 'confession' under

S. 24.

A truck was seized with its contents of contraband goods for foreign

make~

on which no duty had been paid. The appellant who was in charge of the

goods, was arrested while escaping from the truck and

Rs.

2000/-were seized

from him. His statement was recorded under S. 108, Customs Act. 1962.

The appellant and the driver

of the truck. were convicted by the Trial Court.

under Ss. 135 (a) and 135 (b) of the Customs Act, 1962, and

S. 5 of the

Imports

& Exports (Control) Act, 1947. The

High Court upheld their con·

viction under S. 135 (a) of the Customs Act, and acquitted ihem of the other

charges.

In appeal by leave granted under Art. 134(1) (c) of the Constitution, the

appellant contended before this Court that his statement taken under

S. 108,

Customs Act, could not be used against him; firstly, as it was hit by Art.

20(3) of the Constitution on account of .its havin2 been taken while he was

already an 'accused' under S. 124, Bombay Police Act, and secondly. it was

barred under S. 24, Evidence Act, the same being a confession obtained under

compulsion of law. It

was also contended that in

the absence of the requi­

site notification under S. 123(2), Customs Act, the statutory presumption under

S. 123 could not be invoked by the prosecution, and without the same. the

facts

of the case were insufficient to establish an offence

a2ainst the appellant

under S. 135, Customs Act.

Dismissing the appeal, the Court,

HELD : ( 1 )

To claim the benefit of the guarantee against

testimonial com­

pulsion embodied in clause (3) of Art. 20, it must be shown, firstly, that the

person wn.o made the statement was 'accused of any offence', secondly, that

he made this statement under

compulsion. Only a person against whom a

formal accusation relating to the commission of an offence

bas been levelled

would fall within its ambit. [674C-D]

R. C. Mehta v. State of West Bengal, [1969] 2 S.C.R. 461, applied.

(2) To attract the prohibition enacted in S. 24 Evidence Act, these facts

must be established.

(i) that the statement in question is a confession;

(ii) that such confession has been made by an accused person;

(iii)

(iv)

that it has been made to a person in authority;

that the confession has been obtained by reason of any inducement

threat

or promise proceeding from a person in authority.

(v) Such inducement, threat

or promise, must have reference to the

charge against the accused person;

(vi) The inducement, threat or promise must in the opinion of the Court

be sufficient to

give the accused person ground, which would appear

to him reasonable, for supposing that by making it he would

gain

any advantage or avoid any evil of temporal nature in reference to

the proceedings against him. [676F-H, 677 A]

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VEERA IBRAHIM v. MAHARASHTRA (Sarkaria, J.) 673

(3) A ~tat~rucnt in order to amount to a 'confession'. must either admit in A

terms the offence, or at any rate substantially all the facts which constitute

the offence. An admission of an incriminating fact. howwover grave, is not

I by itself a confessiop_. A statement which contains an exculpatory assertion of

some fact, which if true, would negative the offence alleged, cannot amount

• to a 'confession'. [677 A-Cl

•

Pekala Naraya11a v. R. 66 I. A. 66 Palvinder Kaur v. State of Punjab [19531

S.C.R. 94, Om Prakash v. State, A.I.R. 1960 S.C. 409, referred to. B

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 234

of 1971.

From the Judgment and Order dated the 26-3-71 of the Bombay

High Court at Bombay in Criminal Appeal No. 1434 of 1970.

K. R. Chaudhury and K. Rajendra Chaudhury for the Appellant.

H. R. Khanna and M. N. Shroff for Respondent.

The Judgment of the Court was delivered by

SARKARIA, J.-Veera Ibrahim, appellant was accused No. 2 in the

complaint

filed by Assistant Collector of Customs, Preventive Depart­

ment, Bombay before the Chief Presidency Magistrate for his prose­

cution aJong with one Abdul

Umrao Rauf, accused No. 1, in respect

of offences under

ss. 135(a) and 135(b) of the Customs Act, 1962

and

s. 5 of the Imports and Exports (Control) Act 194 7. The trial

Magistrate convicted both the accused on

all the three charges and

sentenced them to two years rigorous imprisonment on each count

with a direction that the sentences wouJd run concurrently. Against

that judgment, two separate appeaJs were filed by the convicts in the

Bombay High Court which acquitted both the accused of the offences

under

s. 5 of the Imports and Exports (Control) Act, 1947 and under

s. 135 (b) of the Customs Act, but maintained their conviction ou

the charge under s. 135(a) of that Act reducing the sentence to one

year's rigorous imprisonment. The High Court, however, granted

a certificate under Article

134(1) (c) of

the Constitution, on the basis

of which, this appeal has been

filed.

The main question with reference to which the certificate was

granted by the High Court, was : whether

s.

108 of the Customs Act,

1962

is ultra vires the provisions of cl. (3) of Article

20 of the

Constitution ? But Mr. Chaudhry, appearing for the appdlant, does

not press this question now before

us.

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The first contention canvassed by the Counsel

is that on the facts G

and circumstances of the case, the appellant's statement recorded

under

s.

108 of the Customs Act 1962, on the foot of which the

appellant has been convicted, was hit by clause (3) of Article 20

because at the time of making that statement, the appellant was "ac­

cused of any offence" under s. 1_24 of the Bombay Police Act, and the

statement was obtained under compuJsion of law. Stress has been

placed

on the fact that the appellant was, in fact, arrested by the H

police on a charge under s. 124 of the Bombay Police Act and the

goods were seized under a

Panchnama, prepared by them in the course

of investigation.

In this connection, reference has been made to

674 SUPREME COURT REPORTS [1976] 3 S.C.R.

A M. P. Sharma and Ors. v. Satish Chandra, District Magistrate, Delhi

and Ors. (1)

On the other hand, Mr. H. R. Khanna, appearing for the respon­

. dent submits that the words "accused of any offence" occurring in

Art. 20 ( 3) take in only that person against whom a formal accusation

of an offence has been levelled. Two other conditions for the appli­

cability

of this Clause, according to the Counsel, are : (a) that the

testimony in question had been obtained under compulsion, and (b)

it relates to the offence of which he stands formally accused. These

conditions, it

is maintained, were not fulfilled in the present case.

Clause ( 3) of Article

20 provides :

"No person accused of any offence shall be compclkd

c to be a witness against himself".

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From an analysis of this clause, it is apparent that in order to

claim the benefit of the guarantee against testimonial compulsion

em­

bodied 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 for­

mal accusation relating to the commission of an offence has been

levelled which in the normal course may result in his prosecution,

would fall within its ambit.

In R.

C. Mehta v. State of West Bengal,(') this point came up for

consideration in the context of a statement recorded by an officer of

E Customs in an enquiry under s. 171-A of the Sea Customs Act. One

of the contentions raised was, that a person against whom such an

enquiry

is made is a 'person accused of an offence', and on that ac­

count,

he cannot be compelled to be a witness against himself and the

statement obtained or evidence collected under the aforesaid provision

by the

Officer of Customs is inadmissible. This contention was repel­

led. Shah J., speaking for the Court, made these apposite observa-

F tions :

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"Under s. 171-A of the Sea Customs Act, a Customs

Officer has power in an enquiry in connection with the

smuggling of goods to sµmmon any person whose atten­

dance he considers necessary, to

give evidence or to

pro­

duce a document or any other thing, and by cl. ( 3) the

person

so summoned is bound to state the truth upon any

subject respecting which he

is examined or makes state­

ments and to produce such documents and other things

as

may be required. The expression

"any person" includes

a person who

is suspected or believed to be concerned in the

smuggling of goods. But a person arrested by a Customs Officer because he is found in possession of smuggled goods

or on suspicion that he

is concerned in smuggling is not when

called upon by the Customs

Officer to make a statement

or

to produce a document or thing, a person accused of an

(I) [1954]

S.C.R.1077. (2) [1969J 2 S.C.R. 461.

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VEERA IBRAHIM v. MAHARASHTRA (Sarkaria, ].) 675

offence within the ·meaning of Art. 20(3) of the Constitu- A

tion. The steps taken

by the Customs Officer are for the

I

purpose of holding an enquiry under the Sea Customs Act

'md

for adjudging confiscation of goods dutiable or prohibit-

• ed and imposing penalties. The Customs Officer does not

at that stage accuse the person suspected

of infringing the

provisions

of the

Sea Customs Act with the commission of

any offence. His primary duty is to prevent smuggling and B

• to recover duties of customs when collecting evidence in

respect

of smuggling against a person suspected of infring-in.g the provisions of the Sea Customs Act he is not accus-

ing t'he person of any offence punishable at a trial before

a magistrate". ·

After a survey of case law, the Court pointed out the cirCUID6-

lances, the existence of which is ordinarily necessary to clothe a

person

with the character of a

"person accused of an offence" :

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"Normally a person stands in the character of an accus-

ed when a First Information Report is lodged against him

in respect of an offence before an Officer competent to

investigate it, or when a complaint

is made relating to the

commission

of an offence before a Magistrate competent D

• to try or ~end to another Magistrate for trial the offence.

Where a Customs Officer arrests a person and informs that

person of the grounds

of his arrest (which he is bound to do

r

under Art. 221) of the Constitution for the purpose of bold-

ing an enquiry into the infringement of the provisions

of the Sea Customs Act which he has reason to believe has taken

place, there

is no formal accusation of an offence. In the E

case of an offence by infringement of the

Sea Customs Act

and punishable at the trial before a Magistrate, there

is an

accusation when a

·complaint is lodged by an officer compe-

tent

in that behalf before the

Magistrate".

The above-quoted observations are a complete answer to the

contention

of the appellant. In the light of these principles, it is

clear that when the statement of the appellant was recorded by the

Customs

Officer under s.

108, the appellant was not a person

"accused of any offence" under the Customs Act, 1962. An accu-

F

sation which would stamp him with the character of such a person

was levelled only when the complaint was filed against him, by the

Assistant Collector of Customs complaining of the commission

of

offences under

·s. 135(a) and s. 135(b) of the Customs Act.

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True, that the appellant was arrested by the police on December

12, 1967 on suspicion of having committed an offence under s. 124,

of the Bombay Police Act and a Panchnama of the packaees in the

truck

was also prepared. But the factual ingredients of that offence

are materially different from those

of an offence under the Customs

Act. This

will be apparent from

a bare reading of s. 124 of the

Bombay Police Act,

which provides : H

.>

"Whoever has in his possession or conveys in any

manner, or

offers for sale or pawn, anything which there is

676

SUPREME COURT REPORTS [1976] 3 S.C.R.

A reason to believe is stolen property or property fraudulently

obtained shall,

if he

fails to account for such possession or

to act

to the satisfaction of the Magistrate, on

c0nviction,

be p~hed with imprisonment for a term (which may

extend to one year but shall not, except for reasons to be •

recorded in writing, be less than one month and shall also

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be liable to the fine which may extend to five hundred

rupees).

Even in respect of that offence, the police did not register any

case

or enter any F .I.R. which

normaJ.Iy furnishes a foundation for

commencing a police investigation. The police did not open the

packages

or prepare inventories of the goods packed therein. Indeed,

the police appear to have dropped further proceedings. They did

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not take any steps for prosecuting the appellant even for an offence

under the Bombay Police Act, 1951. They informed the Customs

authorities, who opened the packages, inspected the goods and on

-t finding them contraband goods, -seized them under a Panchnama.

The Customs authorities called the appellant and his companion

to the Customs House, took them into custody, and after due com-

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pliance with the requirements of law, the Inspector of Customs ques-

tioned the appellant and recorded his statement under

s.

108 of the

Customs Act. Under the circumstances it was manifest that at the '

time when the Custosm Officer recorded the statement of the appel-

!ant, the latter was not formally "accused of any offence." The High

Court was therefore right in holding that the statement recorded by

the Inspector of Cnstoms was not hit by Article 20(3) of the Cons-

titution.

E

The next question to be considered is, whether this statement was

hit by

s. 24 of the Evidence Act. The contention is that this state-

men! was obtained under compulsion of law inasmuch as

he was re-

quired to state the truth under threat of prosecution for perjury.

For reasons that follow, we are unable to sustain this contention.

F To attract the prohibition enacted in s. 24, Evidence Act, these

facts must be established :

(i) that the statement in question

is a confession;

(ii) that

such confession has been made by an accused

person;

G (iii) that it has been made to a person in authority;

(iv) that the confession has been obtained by reason of

any inducement, threat

or promise

a person in authority;

proceeding from

(v) such inducement, threat or promise, must have re-

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ference to the charge against the accused person;

(vi) the inducement, threat

or promise must in the opinion

of the Court be sufficient to give the accused person

grounds, which would appear to him reasonable, for

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VEERA IBRAHIM v. MAHARASHTRA (Sarkaria, !.) 677

.supposing that by making it he would gain any A

advantage or avoid any evil of a temporal nature in

reference to the proceedings against him.

In the present case, facts (i), (iv) and (vi) have not been esta­

blished. Firstly, the statement in question

is not a

"confession' with-

in the contemplation of

s. 24. It is now well-settled that a state­

ment

in order to amount to a

"confession" must either admit in terms

the offence, or at any rate substantially all the facts which constitute

the offence.

An admission of an incriminating fact, howsoever grave,

is not by itself a confession. A statement which contains an exculpa-

tory assertion of some fact, which if true,

woulrl negative the offence

allep,ed, cannot amount to a confession (see Pakala Narayana v.

R, ( ) ; Plavinder Kaur v. State of Punjab; (

2

) Om Prakash v.State(').

A perusal of the statement Ex, I made by the appellant before the

Inspector of Customs would show that it contained exculpatory matter.

Therein, the deponent claimed that he was not aware that the pack­

ages which were loaded in the truck were contraband goods, and alleg­

ed that the goods were not loaded under his instructions. The de­

ponent claimed to be an innocent traveller in the truck when he said :

"I did not ask Mullaji (driver) what goods were being loaded in his

Jorry. Mullaji was only

my friend and I was not aware of any

of his mala fide activities".

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Moreover, the incriminating facts admitted in this statement, do

not, even

if taken cumulatively amount to admission of all the

facts

which constitute any offence, To bring home an offence under s. 135

of the Customs Act, in addition to the facts admitted in Ex. I, it had

to be established further that these goods were contraband goods,

E

For these reasons, it could be said beyond doubt, that the state­

ment Ex.

1 was not a

"confession" within the meaning of s. 24,

Evidence Act.

Secondly, it has not been shown that the Customs Officer-thongb.

a person in authority-had offered any inducement or held out any F

threat

or promise to the appellant.

Christopher

Soares, the Inspector of Cnstoms (P, W. 4) testified

that no threats, coercion or inducements were used and that the

statement Ex. 1 was made by the appellant, voluntarily,

While

it may be conceded that a person summoned by an Officer

of Cnstoms to make a statement nnder

s.

108 of the Customs Act, is G

under compulsion of Jaw to state the truth, the compulsion there­

under, assuming it amounts to a threat, does not proceed "from a

person in authority" within the contemplation of s. 24, but emanates

from law.

Thirdly, the mere fact that the Inspector

of Cnstoms had, before

recording the statement, warned the deponent of the possibility of his

H

(I) 66 I.A. 66. (2) [1953] S.C.R. 94.

(3) A.I.R. 1960 S.C. 409,

678 SUPREME COURT REPORTS [1976] 3 S.C.R.

A prosecution for perjury in case he did not make the statement truth­

fully, cannot be construed

as a threat held out by the officer

whicli

could have reasonably caused the person making the statement to

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suppose that he would . by making that statement, gain any advantage

or avoid any evil of a temporal nature in reference to the proceed- l

ings against him for smuggling.

In view of what has been said above, we have no hesitation in

holding that the statement Ex.

1, was not barred under s. 24, Evidence

Act. The statement Ex.

P-1 was clearly admissible under s. 21,

Evidence Act

as an admission of incriminating facts.

C Lastly, Mr. Chaudhry tried to contend that the incnmmating

facts admitted in Ex. 1 taken along with the other facts appearing

in the evidence of prosecution witnesses, were insufficient to esta­

blish an offence under

s. 135, Customs Act against the appellant

because no notification under sub-s. (2) of

s. 123, of the Customs

Act had been issued in respect of the import of the goods of the

o kind seized, and the aid of the statutory presumption under that

section

was not available to

the prosecution.

We are unable to accept this contention. While it is true that

in the absence of the requisite notification, the statutory presump­

tion under

s. 123 could not be invoked by the prosecution, the cir-

E cumstances established unerringly raise an inference with regard to

all the factual ingredients of an offence nuder

s. 135(b) read with

s. 135(ii) of the Customs Act. In Ex. l which was proved by

P.W. 4,

it

is admitted that these packages which were later found to contain

contraband goods by the Customs authorities, were surreptitiously

loaded in the truck under cover of darkness at Reti Bunder (sea shore)

F from the side of sea-side wall, in the presence of the appellant, and

thereafter the first accused took the wheel, while

the appellant sat by

his side in the truck, and drove towards Sandhurst Station.

It is

further admitted that some Bania paid Rs.

2,000/-to the appellant

which

was meant to be given to the driver of the truck.

Unfortunate­

ly, the truck skidded near the Dongri Police Station and came to a

G stop. On hearing the impact of the accident, the police came out,

took both the accused into the Police Station and seized the truck

and the goods.

In short, the appellant had clearly admitted that

these packages containing the contraband goods were imported sur­

reptitiously from Reti Bunder under cover of darkness.

It was further

established

de-hors the statement of the appellant, that these pack-

H ages, on opening by the Customs Officer, were found to contain con­

traband goods of foreign make. They were brand uew articles pack­

ed. The circumstances of the arrest of the appellant while escaping

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VEERA IBRAHIM v. MAHARASHTRA (Sarkaria, !.) 679

from the truck, the seizure of the truck and the goods, the contraband

natnre

of the goods, the fact that at the time of the seizure, the goods,

were in the charge of

the appellant, the fact that no duty on these

goods had been paid, the seizure of Rs. 2,000/· as cash from the

appellant etc.

were proved by evidence aliwuie rendered by

P. Ws. I

and

2. To some extent, the hostile witness,

P.W. 5, also, supported

the prosecution. The circumstances established unmistakably and

irresistibly pointed

to the conclusion that the appellant was knowingly

concerned in a fraudulent attempt at evasion,

if not, fraudulent

eva­

sion, of duty chargeable on those contraband goods.

In the result, the appeal fails and is dismissed.

M.R. Appeal dismissed.

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