Recording of Statement Under Section 108 of Customs Act,1962.

Statement Under Section 108 of Customs Act, 1962 is an admissible piece of evidence before court of law. Section 108 is a machinery section to gather evidence in case of violations/offence under Customs Act. The power of recording of statement and calling for documents is vested in Officers not lower than rank of Superintendent and Appraiser (AO in short) in rank. Whoever is found involved in violation of customs law, his/ her statement can be recorded to gather evidence in order to bring guilty of home.

Who is Authorized to Attend And Nature of Proceedings

All persons so summoned are either bound to attend personally or through their authorized representative as mentioned in Section 146A of the Customs Act and bounded by the law to tell the truth in connection of any enquiry undertaken by the Department.

This proceeding is deemed to be judicial in nature in terms of Section 193 and 228 of IPC. Persons whose statements are recorded are obliged to tell the truth and furnish correct and true evidence otherwise it will violates Section 193 of IPC and he will be liable for punishment in the form of imprisonment. Section 228 of IPC comes into play when there is intentional insult or interruption to Public Servant discharging  his judicial functions.

Significance of Section 193 of IPC in recording of statement

From the perusal of the section 108 it is evident that the inquiry under Section 108 Customs Act is deemed to be a judicial proceeding by virtue of sub-section (4) and the person who is summoned under this section is bound to appear and state the truth while giving evidence. If he does not do so he makes himself liable for prosecution under Sections 193 and 228 IPC.

The above observation can be elaborated by following case law;

Their Lordships in Percy Rustomji Basta v. State of Maharashtra, 1971 (1) SCC 847 = 1983 (13) E.L.T. 1443 (S.C.) held

 ”We are not inclined to accept the contention of Mr. Chari that in the circumstances mentioned above any threat has proceeded from a person in authority to the appellant, in consequence of which the statement Ex. T was given. Section 108 of the Act gives power to a Customs Officer of a gazetted rank to summon any person to give evidence in any inquiry in connection with the smuggling of any goods. The inquiry made under this section is by virtue of sub-section (4) deemed to be judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. A person summoned under Section 108 of the Act is bound to appear and state the truth when giving the evidence. If he does not answer he would render himself liable to be prosecuted under Section 228 IPC. If on the other hand, he answers and gives false evidence, he would be liable to be prosecuted under Section 193 IPC for giving false evidence in a judicial proceeding. In short, a person summoned under Section 108 of the Act is liable by the statute itself that under threat of criminal prosecution he is bound to speak what he knows and state it truthfully. But it must he noted that a compulsion to speak the truth, even though it may amount to a threat, emanates in this case note from the officer who recorded the statement, but from the provisions of the statute itself. What is necessary to constitute a threat under Section 24 of the Evidence Act is that it must emanate from the person in authority. In the case before us there was no such threat emanating from PW 5, who recorded the statement of PW 19, who was guiding the proceedings. On the contrary the officers recording the statement were only doing their duty in bringing to the notice of the appellant the provisions of the statute. Even if PW 5 had not drawn the attention of the appellant to the fact that the inquiry conducted by him is deemed to be a judicial proceeding, to which Section 193 IPC applies, the appellant was bound to speak the truth when summoned under Section 108 of the Act with the added risk of being prosecuted, if he gave false evidence.

Admissible Piece of Evidence vis-à-vis Confessions Extracted by Police Officers

It is often said that section 108 is having enormous significance , which is true in some sense that statement recorded under this section becomes admissible piece of evidence and even admitted by Court of law, in cases of launching of prosecution against the accused under section 137 of the Customs Act, 1962, however, as a general rule of evidence, this also required to be corroborated and proved as any other evidence to bring home the charges. The general perception regarding attaching more relevance to statement recorded under Customs Act, assumes greater importance when compared with statement recorded by Police Officer under Section 161 of CrPc, in light of provisions of Section 25 of the Evidence Act. As per vires of Section 25 of the Evidence Act, confessions extracted by Police Officer is an inadmissible piece of evidence, if not made in the immediate presence of a Magistrate under Section 164 of CrPC.

In case of Superintendent of Customs and Central Excise V R Sunder 1993, Cri L.J 956, the Madras High Court held that Customs Officer is not a Police Officer, therefore statement recorded by Customs officer is admissible in the court of law. The same view was confirmed by Patna High Court in Bansidhar Maharana v State of Bihar.

In the Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. – 2000 CriLJ 4035, the Court held :

The inculpatory statement made by any person under Section 108 is to non-police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinized 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 statement made by an accused person to a gazetted officer must also pass the tests prescribed in Section 24 of the Evidence Act. If such a statement is impaired by any of the vitiating premises enumerated in Section 24 that statement becomes useless in any criminal proceedings.

In Naresh J. Shukawani v. Union of India – 1996 (83) E.L.T. 258 (S.C.) it was observed that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973 and therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. It was further stated by the Hon’ble Court that if such a statement incriminates the accused, inculpating him in the contravention of the provisions of the Customs Act, it can be considered as a substantive evidence to connect the accused with the contravention of the provisions of this Act. Para 4 of the said judgment is thus reproduced as under :-

“ Para 4- It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani’s statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty.

 In my opinion, as the Customs officers are unarmed and dealing with civil law of the land, therefore the evidence gathered by Customs Officers is more trustworthy and reliable, whereas confessions  obtained by the Police Officers are  found to be extracted by the practice of torture and oppression, therefore not reliable enough to be admitted.

The valid presumption regarding the truthfulness and correctness of evidence is raised during prosecution stage of the case by applying provisions of Section 138B of the Act and statement becomes material piece of evidence. The subsequent section 139 of the Act put onus upon the accused to deny it although it is a rebuttable presumption.

In view of the provisions of Article 20(3) of the Constitution, Customs Officers cannot compel the accused to tender self incriminating evidence during recording of statement. Therefore, at the beginning of recording of statement accused is warned and informed that this statement can be used in any proceedings. The statement should be voluntary in nature.

 In Criminal Appeal No. 27 of 1967 and the judgment of this Court in Badku Joti Savant case, (1966) 3 SCR 698 = AIR 1966 SC 1746 = 1978 (2) E.L.T. (J323) (S.C.) it was held that a Customs Officer is under the Act of 1962 not a police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made are not covered by Section 25 of the Indian Evidence Act.”

Thus, it is evident that a statement made by a person, who is subsequently made an accused, before a Customs Officer under Section 108 of the Customs Act is a confession made to a person other than a police officer and thus not hit by the bar of admissibility under Section 25 of the Evidence Act.

Retracted Statements–

Retracted statements or confessions has the evidentiary value and can be the ground of conviction if found to be voluntary and true and not afterthought. It is observed by the SC that retracted statements requires independent corroboration in material particulars. The rule of evidence requires that it should be corroborated by independent evidence before arriving at any truth. It has to weighed in view of circumstances. It cannot be summarily rejected.

In my view, statements and retracted statements are both required to be corroborated. Making retracted statements after amount of substantial delay, reduced the probative force of evidence as it is understood that after deliberation and afterthought the statement was recorded and thus it takes away  nature of  free will under which it is given.

 Statements of co-accused and its evidentiary value-

Technically it is not an evidence in terms of Section 3 of the Evidence Act, because it is not given by the witness and not subjected to cross examination and also not given on oath. The Court has discretionary power to admit it but at the same time judge  has to act on the other evidences. The same view was held by the SC in Haricharan Kurmi v State of Bihar, wherein it was held that confession of a co-accused cannot be treated as a substantive piece of evidence and can only be pressed in to action when court is inclined to accept other evidences.

By the insertion of Section 108A and 108B vide Notification No 25/2017-customs dated 28.06.2017 , teeth has been provided to Section 108 of the Customs Act, 1962. It has made the furnishing of information obligatory on the concerned person enumerated from (a) to (q), who are responsible for maintaining records and in case of failure to do so in prescribed period it has also provided penalty.

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