Holding

A statement recorded under Section 108 of the Customs Act is admissible and is not subject to the procedural safeguards of Section 164 Cr.P.C. or the exclusionary rule of Section 25 Evidence Act, provided it is voluntary under the test of Section 24 Evidence Act.

Summary

Gulam Hussain Shaikh Chougule was convicted under Section 135 of the Customs Act for allegedly smuggling 207 silver ingots aboard a trawler intercepted by customs officers. During the investigation, his statement was recorded by a gazetted customs officer under Section 108 of the Customs Act, without the safeguards of Section 164 of the Criminal Procedure Code. The appellant argued that the statement was inadmissible because it was obtained without the procedural safeguards, was made under duress, and that no link was established between the dhow and the trawler. The High Court rejected these arguments, holding that Section 108 statements are not subject to Section 164 or the exclusionary rule of Section 25 of the Evidence Act, and that the statement was voluntary after judicial scrutiny. The Supreme Court affirmed the High Court’s view, emphasizing that such statements are admissible if they satisfy the voluntariness test under Section 24 of the Evidence Act, and declined to interfere with the factual findings. Consequently, the appeal was dismissed and the conviction upheld.

Issues considered

Whether a statement recorded by a customs officer under Section 108 of the Customs Act is governed by the safeguards of Section 164 of the Criminal Procedure Code.
Whether a statement obtained under alleged duress and threat is admissible under Section 25 of the Evidence Act.
Whether the prosecution established a sufficient link between the Arab dhow and the trawler on which the appellant was present.

Legislation cited

Subjects

customs lawconfessional statementSection 108Section 164admissibility of evidencesmugglingcontrabandArticle 136voluntariness

Judgment

A GULAM HUSSAIN SHAIKH.CHOUGULE
v.
S. REYNOLDS, SUPTD. OF CUSTOMS, MARMGOA

OCTOBER 19, 2001

B [D.P. MOHAPATRA AND K.G. BALAKRISHNAN, JJ.]

Customs Act, 1962 : Sections 108 and 135.

Confessional Statement-Contraband goods-Interception of trawler-
Presence of. accused on trawler-Arrest-Statement recorded by customs 'of-
·c .fleer-Conviction of accused held valid-Held such a statement was neither hit
by Section 164 Cr.P.C. nor Section 125 Evidence Act.

Code of Criminal Procedure, 1973 : Section 164-Applicability of

Evidence Act, 1872 : Sections 24 and 25-Applicability of.
D
Constitution of India, 1950 :

Article 136-Appeal-lnteiference with concurrent findings of fact-
Held not called for.

E The appellant was prosecuted under Section 135 of the Customs Act,
1962. The prosecution case was that 207 silver ingots were clandestinely
brought into Goa in a trawler. These contraband ingots were recovered on
a trawler in which these were to be transported out of Goa. The appellant
was also present on this trawler at the time of interceptitm. The appellant's
F conviction under Section 135 by Trial Court was upheld by the Appellant
Court. The revision preferred by appellant was dismissed by High Court.
The appellant's contention that while recording his statement under Sec-
tion 108 the safeguards provided under Section 164 of th.e Code of Crimi·
nal Procedure, 1973 were not complied with by the custnms officer was
rejected by the High Court. It hold that Section 164 of Cr. P.C. was not
G applicable to the confessional statement recorded under Section 108 of the
Customs Act. Two other points were also urged by the appellant viz; (i) the
prosecution had failed to establish any connection between the trawler on
which contraband goods were brought into Goa and the other trawler on
which the appellant was present and (ii) as the statement under Section
H 108 was recorded during period of detention under inducement and threat
476
GULAM HUSSAIN SHAIKH CHOUGULE v. S. REYNOLDS, SUPDT. OF CUSTOMS 477
the same was inadmissible under Section 25 of the Evidence Act. Both A
these points were rejected by the High Court as it did not feel persuaded to
interfere with the concurrent findings of fact. Hence this Appeal.

Dismissing the appeal, this Court

HELD : 1. No exception can be taken against the view recorded by B
the High Court that a statement recorded under. Section 108 of the Cus-
toms Act 1962 is neither hit by Section 164 of the Code of Criminal
Procedure, 1973 nor Section 25 of the Evidence Act, 1872. [479-F-G]

2. The High Court declined to accept on the facts emerging from the
evidence that the confessional statement was made under inducement and
c
threat and physical assault. There is no scope for this Court to interfere
with the order in that regard in exercise of jurisdiction under Article 136
of the Constitution. [483-B]

Assistant Collector of Central Excise, Rajamundry v. Duncan Agro In- D
dustries Ltd. & Ors., [2000] 7 SCC 53, relied on.

Union Textile Traders v. Shree Bhawani Cotton Mills Ltd., AIR (1970)
SC 1940; Harbansingh Sardar Lenasingh and Anr. v. The State ofMaharasht;-a
& Anr., Am (1972) SC 1224; K.T.M.S. Mohd. and Anr. etc. etc. v. Union of
India, [1992] 3 SCC 178; Haroon Haji Abdulla v. State of Maharashtra, E
[1968] 2 SCR 641; Romesh Chandra Mehta v. State of West Bengal, [1969] 2
SCR 461; Percy Rustomji Basta v. State of Maharashtra, [1971] 1 SCC 847;
Veera Ibrahim v. The State of Maharashtra, [1976] 2 SCC 302 and Poolpandi
• v. Supdt. Central Excise, [1992] 3 SCC 259, referred to.
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1080
of 2001.

From the Judgment and Order dated 28.4.2000 of the Bombay High
Court in Crl. R. A. No. 6 of 2000.
G
V.B. Joshi and Praveen Jain for the Appellant.

M. Gaurishankar Murthy, K.C. Kaushik and B.K. Prasad for the Re-
spondent.

The Judgment of the Court was delivered by H
478 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A D.P. MOHAPATRA, J. Leave granted.

Faced with dismissal of the revision application filed by him, challeng-
ing the judgment passed by the Appellate Court dismissing his appeal, the
accused Gulam Hussain Shaikh Chougule has filed this appeal by special leave
assailing the judgment of the Courts below convicting him of the offence under
B section 135 of the Customs Act, 1962 (for short 'the Act') and sentencing him
to undergo imprisonment for three years and to pay a fine of Rs.25,000 in
default to undergo six months simple imprisonment further.

The gist of the prosecution case is that 207 silver ingots weighing
approximately 30 kgs. valued at Rs.4,22,48,225 were clandestinely brought
c into Goa in an Arab Dhow and the same were to be transported in the trawler
Gramdev Navdurga (for short 'the trawler'). When the said trawler was inter-
cepted at Aguada Light House by the Officers of the Customs Department on
4th of October; 1988 the appellant was found to be present on the trawler. The
investigation revealed that the trawler was stationed on the port for being used
D to carry and transport the contraband silver ingots.

The respondent who was -a Customs Officer issued a notice to _the
appellant on 5th October, 1988 and recorded his statement under section 108
of the Act. Subsequently on 6th October, 1988 the appellant was arrested and
-
produced before the Magistrate on 7th October, 1988. Thereafter on 28th
E February, 1989 the respondent filed a complaint"under section 135 of the
Customs Act in the Court of the Chief Judicial Magistrate, Panaji. The trial
court by judgment dated 18th February, 1995 convicted the appellant and
others for having committed the offence under section 135 of the Customs Act
and sentenced him to undergo 7 years rigorous imprisonment and to pay a fine
F of Rs.50,000 and in default to suffer rigorous imprisonment for one year. The
Additional Sessions Judge, Mapusa by the judgment dated 28.12.1999 main-
tained the conviction of the appellant but reduced the sentence to three years
rigorous imprisonment with a fine of Rs.25,000 in default to undergo six
months simple imprisonment further. The appellant filed the Criminal Revi-
sion Application No.6 of 2000 assailing the judgment/order of the Appellate
G Court. The High Court by order dated 28.4.2000 dismissed the Criminal
Revision Application. The said order is under challenge in the present appeal. --
In paragraph 4 _of the judgment under challenge the High Court has
formulated the three points urged by the counsel appearing for the appellant,
H namely:
GULAM HUSSAIN SHAIKH CHOUOULE v. S. REYNOLDS; SUPDT. OF CUSTOMS [MOHAPATRA, J.] 4 79
"1. The Customs Authorities while recording the statement under A
section 108 of the Customs Act, had not followed the safeguards
provided under Section 164 Criminal Procedure Code;

2. The applicants in Criminal Revision Application Nos. 4, 5 and 6/
2000 had been detained by the Customs Authorities from 4th
B
October, 1988 to 7th October, 1988, which amounts to arrest
of the said applicants and the statements of these applicants were
recorded under Section 108 of the Customs Act during this
period of detention after giving threats and exercising duress. In
this connection it is pointed out that the medical papers of the
applicants show that they were assaulted and, as such, the state- c
ments of these applicants recorded under section 108 of the
Customs Act, cannot be said to be voluntary; and

3. No link has been established between the Arab dhow and the said
trawler."
D
The High Court, on examination of the first point which raised essen-
tially a question of law, rejected the contention of the applicant referring to
different decisions of this Court in Union Textile Traders v. Shree Bhawani
Cotton Mills Ltd., AIR ( 1970) SC 1940; Harbansingh Sardar Lenasingh and
Am: v. The State o.f Maharashtra &Am:, AIR (1972) SC 1224; K.T.M.S. Mohd. E
and another etc.etc. v. Union of India, [1992] 3 SCC 178, and held that the
provisions of section 164 of the Criminal Procedure Code are not applicable.
to the confessional statement of the appellant recorded by the Customs Officer
under section 108 of the Act and therefore rejected ~he contentions raised on
behalf of the appellant that the safeguards prescribed under section 164 F
Criminal Procedure Code having not been complied by the Customs Officer
the statement is inadmissible in evidence. The High Court held that a statement
recorded under section 108 of the Act is neither hit by section 164 Criminal
Procedure Code nor section 25 of the Evidence Act.

Regarding the other two points urged by the counsel for the appellant, G
the High Court did not feel persuaded to interfere with the concurrent findings
of fact rejecting the contention that the statement recorded under section 108
of the Act was not voluntary one having been obtained under pressure of
coercion and threat and physical assault on the appellant. The High Court also
rejected the third point that the prosecution has failed to establis/1 any connec- H
~·
\
480 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A tion between the Dhow and the trawler on which the appellant and others were
present.

The learned counsel for the appellant reiterated the contentions raised
before the High Court that the safeguards prescribed under section 164 Crimi·
nal Procedure Code for recording the confessional statement of an accused
B have not been followed by the Customs Officer.

Section 108 of the Customs Act, 1962 reads as follows:

· "108. Power to summon persons to give evidence and produce docu-
ments (I) Any gazetted officer of custom shall have power to summon
·c any person whose attendance he considers necessary either to give
evidence or to produce a document or any other thing in any inquiry
which such officer is milking in connection with the smuggling of any
goods.

(2) A summons to produce documents or other things may be for the
D
production of certain specified documents or things or for the produc-
tion of all documents or things of a certain description in the posses-
sion or under control of the person summoned.

(3) All persons so summoned shall be bound to attend either in person
E or by an authorised agent as such officer may direct; and all persons
so summoned shall be 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
F Procedure, 1908 (5 of 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 (45 of 1860)."
G
In the case of Assistant Collector of Central Excise, Rajamundry v.
Duncan Agro Industries Ltd. & Ors., [2000] 7 SCC 53, this Court held that
the provision in section 164 of Criminal Procedure Code empowers a Judicial
Magistrate to record any confession or statement made to him during the course
of investigation. The power conferred by Section 164, Criminal Procedure
H
GULAM HUSSAIN SHAIKH CHOUGULE v. S. REYNOLDS, SUPDT. OF CUSTOMS [MOHAPATRA, J.) 481
Code to record confessions and statements can be exercised only by a Judicial A
Magistrate. Even a police officer on whom power of a Magistrate has been
conferred is forbidden from recording a confession. Sub-sections (2) and (4)
deal with procedure which such Magistrate has to follow while recording
inculpatory statements made by persons. Referring to section 108 of the
Customs Act, this Court observed : B
"Section 108 of the Customs Act does not contemplate any magisterial
intervention. The power under the said section is intended to be
exercised by a gazetted officer of the Customs Department. Sub-
section (3) enjoins on the person summoned by the officer to state the
truth upon any subject respecting which he is examined. He is not c
excused from speaking the truth on the premise that such statement
could be used against him. The said requirement is included in the
provision for the purpose of enabling the gazetted officer to elicit the
truth from the person interrogated. There is no involvement of the
Magistrate at that stage.: The entire idea behind the provision is that the D
gazetted officer questioning the person must gather all the truth con-
cerning the episode. If the statement so extracted is untrue its utility
for the otficer gets lost.

......... The ban conained in section 25 of the Evidence Act is an
E
absolute ban. But it must be remembered that there is no ban in regard
to the confession made to any person other than a police officer, except
when such confession was made while he is in police custody. The '
inculpatory statement made by any person under Section 108 is to non-
police personnel antfhence it has no tinge of inadmissibility in evi-
dence if it~a~ in~de :whert
the person concerned was notthen in police
F
custody. Nonetheless the caution contained in law is that such a
statement should be scrutinised by the court in the same manner as
confession made by an accused person to any non-police personnel.
The court .has to be satisfied in such cases, that any inculpatory
, st~te~e~t made by ~ acctised person. to a gazetted officer must also G
' • f • .i-.. • •• ~ ~,,,. • ,. .

pass tlie tests prescribed in Section 24 of the Evidence Act. If such a
statement i~ -impaired by any of the vitiating premises enumerated in
Section_ 24 'that stat~m~nt becomes useless. in any criminal proceed-
,in!!s.'.'.
·-·" ,_. 1F, .. '. ( ., '
'H
482 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A In the judgment this Court quoted with approval the following observa-
tions made by Hidayatullah, J. (as he then was) in Haroon HajiAbdulla v. State
of Maharashtra, [1968] 2 SCR 641:

" ...... These statements are. not confessions recorded by a Magistrate
under Section 164 of the Code of Criminal Procedure but are state-
B ments made in answer to a notice under Section 171-A of the Sea
Customs Act. As they are not made subject to the safeguards under
which confessions are recorded by Magistrates they must be specially
scrutinised to finding out if they were made under threat or promise
from someone in authority. If after such scrutiny they are considered
c to be voluntary, they may be received against the maker and in the
same way as confessions are received, also against a co-accused jointly
tried with him."

Reference was made to the decision inRomesh Chandra Mehta v. State
of West Bengal, [1969] 2 SCR 461 wherein it was held:
D
"When an inquiry is being conducted under Section 108 of the Cus- .
toms Act, and a statement is given by a person against whom the
inquiry is being held it is not a statement made by a person accused
of an offence and the person who gives the statement does not stand
in the character of an accused person."
E
This Court also referred the case in Percy Rustomji Basta v. State of
Maharashtra, [1971] 1 SCC ~47, and also the three Judge Bench decision in
Harbansingh Sardar Lenasingh & Anr. v. State of Maharashtra, (supra); Veera
Ibrahim v. The State of Maharashtra, [1976] 2 SCC 302 and Poolpandi v.
F Supdt., Central Excise, [1992] 3 SCC 259.

The conclusions of the Court were summarised as follows:

"We hold that a statement recorded by Customs Officers under Section
108 of the Customs Act is admissible in evidence. The court has to test
whether the inculpating portions were made voluntarily or whether it
G
is vitiated on account of any of the premises envisaged in Section 24
of the Evidence Act.. ...... "

In view of the positi~n of .law enunciated by this Court in the recent
decision afore-mentioned with which we are in respectful agreement, no ex-
H ception can be taken against the finding recorded by the High Court on the
GULAM HUSSAIN SHAIKH CHOUGULE v. S. REYNOLDS, SUPDT. OF CUSTOMS [MOHAPATRA, J.) 483

Regarding section 24 of the Evidence Act the case of the appellant was
that since the confessional statement was made under inducement and threat
and physical assault which, the High Court on examination, declined to accept
on the facts emerging from the evidence in the case, there is no scope for this
Court to interfere with the order in that regard in exercise of jurisdiction under B
Article 136 of the Constitution.

For the reasons discussed in the foregoing paragraphs, it has to be held
that the High Court rightly rejected the contentions raised on behalf of the
appellant on that score. Thus the appeal, being devoid of merit, is dismissed.
c
T.N.A. Appeal dismissed.