It is indeed heartening to know that that the Hon’ble Supreme Court has in Senior Intelligence Officer versus Sanjay Agrawal vide order date 4/7/2023 decided to examine the following questions afresh:
- Whether the Customs/DRI Officers are police officers and, therefore, are required to register FIR in respect of an offense under Sections 133 to 135 respectively of the Customs Act?
- Whether the provisions of Sections 154 to 157 respectively and 173(2) of the Code of Criminal Procedure, 1973 would apply in respect of the proceeding
Customs Act, 1962, in view of Section 4(2) of the Code?
- Whether in respect of the offenses under Section 133 to 135 respectively of the Customs Act, 1962, the registration of the FIR is mandatory before the person concerned is arrested and produced before the Magistrate?
The aforesaid questions are of seminal importance having large scale repercussions. It is, therefore, necessary to look at the brief history and rationale of the right against testimonial compulsion or right against self-incrimination.
Brief history and origin:
In England due to the efforts of John Lilburn, a political philosopher and activist and Sir Edward Coke’s who, was a barrister, Solicitor General, Judge and Jurist, the right against self-incrimination was recognised and became part of the common law. They protested and challenged ex office oaths administered to accused by Ecclesiastical courts and Star Chamber. These courts imposed barbaric punishments by putting the accused to cruel trilemma. If accused gave false testimony he will be punished for perjury, if he refused to give testimony he would be punished for contempt of court and if he is compelled to testifies truthfully it would be against his right to self-preservation. By the end of 17th century right to silence got firmly established in England being part of its legal system.
The reason behind recognising the right against self-incrimination is that it is very easy to obtain confessions from a person who is under arrest. A person who is deprived of liberty under the authority of law is left with no choice but succumb to the pressure built up by the authority and incriminate. If conviction can be based on a compelled testimony of an accused, it would engender a tendency in the investigation officer not to look for independent evidence to establish the guilt of the accused. The consequence of such a law allowing the court to base conviction on the compelled testimony of an accused would in all probabilities end up in gross miscarriage of justice.
Scenario in other countries:
In almost all countries of the world the right to silence is recognised either in the constitution or in the statute. In some countries there is a right to keep the mouth shut completely whereas in some countries it is against self-incrimination. In the USA it is Vth Amendment right and additional safeguard in the form of Miranda Warning. Miranda v. Arizona 1966 (384) US 436
No right to keep the mouth shut or absolute silence:
In India from the legal provisions contained in Cr.PC, the Evidence Act and the decisions of the Supreme court it can be safely concluded that our nation does not recognise the right to silence in its absolute from or the right to keep the mouth shut completely. The provisions of Cr.PC though do not specifically say that the accused is bound to speak, but from the provisions relating to examination of a person acquainted with the facts of the case and the permissibility of custodial interrogation of accused by police under S.167, it emerges that the right under article 20(3) is enforced by excluding such statements of the accused from being received as an evidence and not by allowing the accused to keep his mouth shut. Only S.313 of Cr.P Cprovides for asking the accused to explain the evidence which is against him. This provision is for the benefit of the accused and not against his interest. Please refer to Dipak Jagdishchandra Patel v. State of Gujarat AIR 2019 SC 3363(accused can be examined under S.161 of Cr.PC), Ajmal Kasab 2012 (9) SCC 1
Important features of Article 20(3):
There are three important features:
- “No person accused of any offence”
- “shall be compelled”
- “to be a witness against himself”.
In the present proceeding the Court is mainly examining the phrase “person accused of any offence”. Other aspects of the law are fairly well settled. The Spectrograph test and its legality has been recently upheld in Ritesh Sinha’s case, Polygraph test, Narco test are hit by Article 20(3) as laid down in Selvi’s case unless the accused volunteers himself.
The phrase “shall be compelled” would take within its sweep a person or officer or authority including court who is under any law has power to deal with the accused and his liberty. It also covers a legislative action which results in to such a compulsion.
Arrest under customs and current law:
- The person arrested is not a person accused of an offence for the purposes of Article 20 clause 3 and he becomes accused only when a complaint is filed
- The customs officer is not a Police officer for the purposes of Cr.PC and the Evidence Act since he does not have power to file a charge-sheet
- The purpose of the inquiry is to decide the tax liability with interest or penalty and confiscation of the goods and not to prosecute.
- Conviction of the arrested person can be recorded solely on the basis his statement before the Customs Officer since the inquiry which he is holding is deemed to be a judicial proceeding.
Analysis and Criticism:
A. The garb is not relevant but the nature of power is relevant for deciding an issue whether a particular officer is “Police Officer”
The following are the essential attributes of the Police Power:
- Power of arrest without warrant
- Power of search and seizure (Personal search or other kinds of search viz. vehicle, property etc)
- Power of examining or interrogating the arrested person
- Power to grant or refuse bail
- Power of asking for custodial interrogation under Section 167 Cr.PC
- Obligation to produce the arrested person before Magistrate
- Obligation to follow the directions issued by the Hon’ble Supreme Court of India in D K Basu, Joginder Kumar , Arnesh Kumar
B. Power to file a charge-sheet after inquiry or investigation is not an essential attribute of Police Power:
- Nothing turns on the power to file a charge-sheet. Magistrate is not bound to accept the report under Section 173 Cr.PC submitted by police after investigation. As in a complaint case he is empowered to dismiss the complaint, in case instituted upon FIR the Magistrate can refuse to accept the report submitted or conclusion drawn by the police.
- Cognizance of the offence is to be taken under Section 190 Cr.PC in either of the cases namely upon FIR or upon a private complaint.
- If the scheme of the law mandated Magistrate to accept the report submitted by Police, it might be possible to argue that the power to file charge-sheet is one of the essential attributes of the police power.
C. Arrest without intention to prosecute cannot be countenanced under the Constitution or ordinary law- meaning of “a person accused of an offence”:
- A person who is not an accused of any offence cannot be arrested. Arrest always presupposes intention to prosecute the arrested person immediately or within a short time. [within sixty days or ninety days as the case may be as provided under Section 167 Cr.PC]
- A person cannot be arrested for carrying out departmental adjudication for evasion of tax, levy and recovery of tax, penalty and confiscation of goods but he can be summoned or detained for a brief period- distinction between detaining a person and arresting a person
- Once arrest is made, he stands in the character of “a person accused of offence” for the purposes of Article 20(3)
- Arresting a person or preparing an arrest memo and labelling him as a suspect having committed an offence is also an accusation and hence right against self-incrimination commences from the very point of arrest.
- The constitutional and the statutory requirement of producing the arrested person before Magistrate seeking his order for police custody or judicial custody is sufficient indication of the person having been formally stood in the character of “a person accused of an offence” for attracting Article 20(3).
- “accused person” under Section 167 Cr.PC and “a person accused of an offence” under article 20(3) of the Constitution denotes the same thing i.e. the person arrested.
- “A person accused of an offence” means “a person who is an accused of an offence”. The word “accused” seems to have been used as Noun and not as a past tense of the verb “accuse”. The requirement of formal accusations cannot be read in the provisions of Article 20(3). The word “accused” as noun essentially means “a person who has been blamed for wrong doing; esp. a person who is arrested and brought before Magistrate or who has been formally charged with crime(as by indictment or information” Black’s Law Dictionary 8th Edition Page 23. Hence, the phrase “a person accused of an offence” under Article covers both i.e. arrested person and indicted person.
- Unless a person is an accused Section 167 Cr.PC can have no application. Therefore, if an arrested person is treated as an accused under ordinary law for authorizing his judicial or police custody, a fortiori he is an accused for Article 20(3)
- It will be an absurd proposition of law that for statutory compliances under Section 57 and Section 167 Cr.PC a person arrested is accused and for the purposes of article 20(3) he is not an accused. Refer to Dipak Mahajan’s case AIR 1994 SC 1775.
D. Section 104(3) of the Customs Act invests all powers of an officer in charge of a police station in Custom Officer:
- A meaningful reading of Section 4 Cr.PC conjointly with Section 104(3) The Customs Act mandates registration of FIR before or after arrest and following Cr.PC unless contrary is provided in the special law.
- Under Section 104 (3) of The Customs Act where an officer of customs has arrested any person upon reasonable belief of having committed offence under the Customs Act, 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 and he is subject to under the Code of Criminal Procedure.
- Section 108 cannot be resorted to when a person is already detained in custody or arrested by the Customs officer. Section 108 empowers the Gazetted officer of customs to summon any person whose attendance he considers necessary to give evidence or produce documents or any other thing. This means that a person who is not present can be summoned. Constitutional right against testimonial compulsion cannot be bypassed by allowing Customs Officer to issue a summon on the spot after detaining or arresting a suspect/accused. In a case of a person being detained or arrested by Custom Officer he can be examined under Section 107 only. Such a statement would be akin to a statement under Section 161 and 162 Cr.PC.
- If a custom officer wants to record any confessional or self-incriminatory statement he must either follow the mandate of Section 164 Cr.PC himself or take the arrested person to the Judicial Magistrate.
E. If Customs or DRI officer is not held to be police officer, he must follow Section 43 Cr.PC and handover the arrested person to police.
It is inconceivable to accept the position that a person arresting anyone is not a police officer on one hand and on the other hand he is to be absolved from the requirement of Section 43 Cr.PC
If custom officer is held not to be Police officer, he must follow Section 43 Cr.PC and allow the police to take over the investigation. For departmental adjudication of tax liability Customs officer can resort to the applicable provisions of the Customs Act.
F. Constitutional interpretation of a particular word or phrase should be to advance the objectives of the fundamental right and not to defeat the objectives:
- The constitutional protection under article 20(3) should be provided to all arrested persons by shunning the pedantic approach.
- The right against the testimonial compulsion begins not upon formally accusing a person but from the point of arrest where the liberty or freedom of a person is taken away. It is the deprivation of freedom of an arrested person and the pressure built up within the four walls of office premises of the officer having power of arrest that ignites the fundamental right against self-incrimination.
- The judgments of the Supreme Court in Barkat Ram (minority view), Noor Aga and Tofan Sigh’s cases lay down correct law and to be applied to all cases of arrest under special laws.
Arrest under the Customs Act and formulation of wrong tests:
- The Supreme Court has held that when a person is arrested under The Customs Act or similar special law, he does not stand in the character of an accused. The grounds supplied in the arrest memo to the accused cannot be considered as accusations to bring the arrested person within the phrase “person accused of an offence” under Article 20(3). He stands in the character of an accused only when a formal complaint is made to a Magistrate. [My Comment: Arrest is a serious matter and it cannot be resorted to for the offences punishable with imprisonment up to 7 years. Hence, a fortiori it is logical to contend that arrest cannot be allowed solely for the purpose of departmental adjudication of tax liability, recovery and penalty refer to Joginder Kumar AIR 1994 SC 1349], Directorate of Foreign Exchange v. Dipak Mahajan AIR 1994 SC 1775 arrested person is to be treated as accused for bail and remand.
- The Supreme Court has also held that though the Officers of Customs have almost all powers of a police officer, they are not police officers because they do not have power to file a charge-sheet and they are required to file a complaint after holding inquiry/investigation. As stated earlier nothing turns on the power to file charge-sheet and power to file complaint. Since, in both the cases the Magistrate is entitled to refuse to take cognizance Refer to Noor Aga v. State of Punjab AIR 2009 SC (supl) 852 what is important is the nature of the power and not the garb, it would be paying a hollow homage to the holy verbalism of Article 20(3), sapping the juice and retaining the rind.
Both the above tests evolved by the SC are too technical and artificial. It amounts to turning a blind eye to the reality. The article guaranteeing a fundamental right cannot be interpreted in a narrow and pedantic manner. The constitutional protection needs to be as broad as possible to give its benefit to all persons arrested and who are likely to face prosecution immediately or after sometime on the basis of the accusations or information received.]
The approach of the Supreme Court in Noor Aga’s case needs to be extended to all prosecutions under special laws. The departmental adjudication stands on a different footing.
The cruel trilemma abolished in England three hundred years before is being applied to the prosecution under the Customs Act or other similar special laws. The proceeding before the Customs officer is considered as judicial proceeding for a limited purpose of departmental adjudication where the person summoned or examined is bound to state truth so if he gives false answers he could be prosecuted for perjury and giving false evidence, if he refuses to answer he would be obstructing and committing contempt of the lawful authority of the officer and if answers truthfully it will be against his right of self-preservation. Since it involves adjudication and passing an order deciding the tax liability with or without interest and/or penalty it is by deeming fiction treated as judicial proceeding for that purpose only. While prosecuting the assessee for the violation of the provisions of law constituting an offence he is making accusations only and not adjudicating anything. Hence the statement of the accused obtained for deemed judicial inquiry of assessing tax cannot be received in evidence for prosecuting him. It is unfortunate that such a statement admissible for limited purpose of departmental adjudication is used against the same person in prosecution in flagrant violation of Article 20(3) and against the very notion of just, fair and free trial.
The correct test is as follow:
- Where a person is arrested or detained for long period upon a reasonable belief/information of committing an offence and/or
- against him inquiry/investigation is initiated for any act constituting an offence for which criminal prosecution is possible to be filed immediately or after sometime
he should be treated as “ a person accused of an offence” under Art.20(3) and his self-incriminatory or confessional statement should not be allowed to be received in the criminal trial.
Arrest presupposes intention to prosecute:
Any statement recorded by the officer of Customs, DRI, Excise Intelligence or any such statutes after arrest/prolong detention should not be allowed to be used in the prosecution for the offences under the relevant law for the violation of which he was arrested since in my view the right against self-incrimination under Article 20(3) does not depend on filing a formal FIR/Complaint or charge-sheet but depends on curtailment of liberty of the person arrested/prolong detention and putting him in such circumstances where the voluntariness of his statement cannot be legally inferred. Nothing turns on the power to file charge-sheet or to file a private complaint since in both the cases Magistrate is entitled to act or not to act upon the charge-sheet or complaint. It is a settled law that Magistrate is entitled to disagree with the conclusion of the police drawn in the form of a charge-sheet.
Officer proposing departmental adjudication of tax assessment can detain or summon the alleged defaulter but cannot arrest:
The officer of Customs, DRI, Excise Intelligence etc has been invested dual power. The power of holding departmental inquiry for the purpose of tax assessment, tax recovery, fiscal penalty, confiscation of the goods etc. and secondly the power of prosecution for the offences and that special law. For holding departmental inquiry for the purpose of tax assessment, tax recovery, fiscal penalty, confiscation of the goods etc such officer is given power to summon any person, search, seizure which is considered a judicial proceeding for certain provisions of IPC. The person summoned is bound to state truth in such departmental proceeding and for limited purpose of deciding the fiscal liability of that person his statements are admissible. Such self-incriminatory or confessional statements should not be allowed to be received in the trial for the offences under the relevant law.
Person treated accused for bail and police custody has to be extended the guarantee under Art.20(3):
A person who is considered accused for the purposes of bail, sending him to police custody or judicial custody cannot be deprived of his label of accused for the purposes of Article 20(3).
- The Supreme Court needs to reconsider the entire law on the admissibility of a statement u/s.104 of the persons arrested in the light of Noor Aga, Tofan Singh and Dipak Mahjan’s cases.
- Arrested person under the Customs Act or other special laws is accused of an offence for Article 20 clause 3
- Customs officer or DRI officer is to be treated as Police officer and any self-incriminatory statement or confessional statement made before him should not be received in the prosecution if it is obtained after arrest or prolonged detention.
- If no arrest is effected and only summoning procedure is resorted, the statement made by the person under s.108 for a limited purpose of adjudicating tax liability cannot be the sole basis for recording conviction and the court must record conviction if it is duly corroborated after weighing other evidence independently.
- Proceeding or inquiry before Customs Officer is deemed to be a judicial proceeding for a limited purpose of exercising the power to adjudicate the tax liability and penalty. Otherwise, it will lead to conviction of the person solely on the basis of the adjudication order of the Customs Officer obviating the requirement of holding a criminal trial.
Cases relied upon:
(i) State Of Punjab Versus Barkat Ram AIR 1962 SC 276 : 1962 (3) SCR 338 Minority opinion of Justice K. Subba Rao
(ii) Directorate Of Enforcement Versus Deepak Mahajan and Another AIR 1994 SC 1775
(iii) Noor Aga Versus State of Punjab 2008 (16) SCC 417
(iv) Tofan Singh Versus State Of Tamil Nadu 2021 (4) SCC 1 : AIR 2020 SC 5592
Article Reference: https://www.livelaw.in/top-stories/are-customsdri-officers-police-officers-whether-crpc-applicable-to-customs-act-proceedings-supreme-court-to-decide-232212