Mitter, J.

1. This group of appeals by a certificate under Art. 134(1)(c) of the Constitution of India granted by the High Court of Bombay disposing of Criminal Appeals Nos. 497 to 500 and 516 of 1965 upholding substantially the conviction and sentences passed against the appellants by the Presidency Magistrate, 2nd Court, Mazgaon, Greater Bombay.

2. The appellants before us and two others were prosecuted by the Assistant Collector of Bombay for offences of conspiracy and substantive offences punishable under Sec. 167(81) of the Sea Customs Act and Sec. 5 of the Imports and Exports (Control) Act, 1947. The gist of the complaint was that all the accused knowingly and with intent to defraud the Government of India of duty payable thereon and/or to evade the prohibitions and restrictions for the time being in force under or by virtue of the Sea Customs Act with respect thereto viz., Sec. 3(2) of the Imports and Exports (Control) Act, 1947 entered into a conspiracy in Bombay and other places during the period commencing from August 1958 and August 1959 to acquire possession and to be concerned in carrying, removing, concealing and otherwise dealing with prohibited and restricted goods in very large quantities of the C.I.F. value of not less than Rs. 1, 45, 328/- and in relation to the said contraband goods to be knowingly concerned in fraudulent evasion of or attempt at evasion of the duty chargeable thereon and of the prohibition and restriction as aforesaid applicable to the said goods and thus committed offences under Sec. 120-B of the Indian Penal Code read with Sec. 167(81) of the Sea Customs Act as amended and Sec. 120-B of the Indian Penal Code read with Sec. 5 of the Imports and Exports (Control) Act, 1947.

3. After recording the evidence of a large number of witnesses, charges were framed against all the accused by the Magistrate in December 1962. The second and the third charge related to consignments brought into India by s.s. Canton and s.s. Star Arcturus respectively. The fourth and fifth charges related to consignments of s.s. Nissan Maru. The sixth charge related to s.s. Hikone Maru; the seventh charge related to s.s. Obra; the eighth charge to s.s. Nagara Maru and the ninth to s.s. Wakasima Maru. Accused No. 6 was not before the court as he was absconding and accused No. 7 was acquitted of all the charges. The Magistrate by his judgment dated February 25, 1965 convicted all the appellants of the main charge and each of the accused excepting accused No. 7 of diverse charges under the main heading of charges 2, 3, 4 and 5 respectively. Sentences of imprisonment and fine were imposed on all the accused. Excepting for setting aside the conviction in respect of some of the charges which it is not material to state, the High Court of Bombay in appeal upheld the conviction and sentences passed against all the accused.

4. The particulars of the different accused according to the prosecution were as follows. The first accused, appellant in Appeal No. 86 of 1968, acted as manager of a concern carrying on business in the name of Messrs H. B. Advani Brothers at 251, Hornby Road, Bombay. He had proprietary and financial interest in the business and was at the material time in sole charge of that business. The second accused Moti H. Advani, appellant in Appeal No. 87 of 1968, was a brother of accused No. 1 and carried on business in the name of Messrs Indo Far-East Traders. His business premises were at 2, Waterloo Mansion, Colaba, Bombay. Accused No. 3, Megharaj Gopaldas Jham, appellant in Appeal No. 88 of 1968 carried on business in the name of Fine Art Traders along with his partner, accused No. 5 Arjan Ghanshyamdas Tejwani, appellant in Appeal No. 90 of 1968. The business premises of Fine Art Traders was at 250, Carnac Road, Bombay. Accused No. 5 had also a family concern in the name of Fine Art Museum carried on at the same place. Kishanchand Assandass Megnani, accused No. 4 appellant in Appeal No. 89 of 1968 was at the material time working with a clearing agents M/s Tarasingh & Sons and held a dock permit. Accused No. 6 Bhagwant D. Advani who had several aliases was a cousin of the first and second accused and carried on business at the material time at Hong Kong in various names and styles. Accused No. 7 Ramchand Thanwardes Ramchandani was the proprietor of a concern named Miller and Miller carrying on business in Bombay.

5. The prosecution case was that although the first and the second accused as shown above were purporting to carry on business separately they were in fact carrying on business together, accused No. 1 being the brain behind the business conducted in the name of H. B. Advani Brothers and/or Indo Far-East Traders while accused No. 2 helped him substantially in his business. The first, second and sixth accused were said to have hatched a conspiracy to import prohibited goods from Hong Kong to Bombay by evading the provisions of law and payment of import duty. In this they took advantage of the practice of the Customs Officers at Bombay at that time who passed examination order in respect of alternate cases imported and the choice as to which of the two indicated in the examination order should be actually opened for examination was left to the importer or his representative. The conspiracy according to the prosecution case was to take advantage of this practice by sending genuine goods in the middle case where the consignment was of three cases and importing contraband goods in the remaining two. Where the consignment consisted of only two cases the importer or his representative present at the time of getting the examination order or at the time of actual examination of the cases by the Customs Officers used to manoeuvre to get only the case containing the genuine goods examined and take delivery of the consignment containing contraband goods without actual examination. In some instances where the consignment consisted of only two cases they bore different marks MM and "MTM" it being known to the conspirators as to which mark indicated the contraband goods. Further the conspirators were said to have taken advantage of the trafficking in licences by purchasing the benefit thereof from the holders and importing contraband goods and some genuine goods on those licences in the names of those licence holders and successfully manoeuvring to clear the same on arrival of the consignments in Bombay with the help of the relevant documents retired (received ) from the bank or with the documents directly received from the exporter. In all this it was necessary to have the help of a person of their confidence to clear the goods and the services of accused No. 4 who was experienced in clearing work and held a dock permit were availed of. This was done by the fourth accused getting Sunderdas Tarasingh the proprietor of Tarasingh and Sons to lend only the name of his concern by accepting a small remuneration for preparing the relevant bills of entry and leaving the actual work of clearing the goods to accused No. 4 who applied for and obtained a dock permit as an employee of Tarasingh and Sons in May, 1959.

6. Further, according to the prosecution, accused 3 and 5 had some business connection with accused 1 and 2 and had joined the conspiracy a little later. These two accused used to get clearing work done through one Dalal. "Raut and Sons" where P. W. Kambli was working as a clerk. The services of Kambli who was an experienced clerk were availed of to help accused 4 in clearing all the consignments in which the conspirators were interested. Accused 3 had gone to Hong Kong on or about 10th June, 1959 and returned to Bombay a month later. The prosecution alleged that the object of the visit was to import contraband goods with the help of accused 6.

7. Pursuant to the above conspiracy, various consignments were alleged to have been despatched from Hong Kong, the destiny being Bombay in all cases. Two cases were sent on s.s. Canton on the import licence held by Indo Far-East Traders (accused No. 2). The ship sailed on 6-7-1959 and reached Bombay on 19-7-1959. Case No. 1 contained genuine goods while case No. 2 contained contraband goods. This consignment was the subject-matter of charge No. 2. A consignment of three cases by s.s. Star Arcturus leaving Hong Kong on 20-6-1959 reached Bombay on 9th July, 1959. The consignment was covered by the import licence of Aarkay Saree Museum. Of this, the middle case No. 21 contained genuine goods while the other two contained contraband. Accused 2 is alleged to have purchased the benefit of the licence from Aarkay Saree Museum on July 4, 1959. This consignment was the subject-matter of charge No. 3. Two consignments each containing three cases were sent by s.s. Nissan Maru on 24th June, 1959 on the import licence of (i) Laxminarayan Mahavirprasad and (ii) Continental Exports Corporation Limited. In both the consignments the middle case contained genuine goods while the other two contained contraband goods. The ship reached Bombay on 23rd July, 1959. Laxminarayan Mahavirprasad disclaimed any connection with the consignment. According to the prosecution, accused 3 and 5 had purchased the benefit of import licence of Continental Exports Corporation for which payment was made through accused 5 on 9th July, 1959. This formed the subject-matter of charges 4 and 5. It is not necessary to take any note of the charges on which there was no conviction.

8. Investigation started consequent on information received by the Customs Officers at Bombay. The business premises of H. B. Advani Brothers were searched on 21st July, 1959 when accused 1 was personally present there. He claimed to be only the manager of the firm. There is no dispute that as a result of the search a number of documents and things were seized from a drawer of the table in the room searched or recovered from a wallet in his possession. These were severally marked as Exs. B, B-1, C, C-1, C-2, C-3, D, E, E-1, F, F-1, F-2 and the last three being recovered from the said wallet. According to accused No. 1 the exhibits other than the last three were recovered from the Officer premises of H. B. Advani Brothers but not from the table belonging exclusively to him. There is a concurrent finding of fact by two courts on this point against accused No. 1 but it is challenged before us. Ex. B was the envelope addressed to H. B. Advani Brothers. Ex. B-1 were three shipping samples which represented genuine parts of the consignment of all the three ships s.s. Canton, Arcturus and Nissan Maru as regards the consignment covered by the licence of Continental Exports Corporation Limited. Ex. C was the envelope in which were found Exhibits C-1, C-2 and C-3, C-1 was a paper wrapper containing Ex. C-2 the cover of a pack of Bonus cards and Ex. C-3 a sample of genuine Bonus cards, these cards being contraband goods. Two brands of cards including Bonus cards were in the consignment of the two ships other than s.s. Canton. Ex. D was a document on which were jotted a number of figures which according to the prosecution was an account of the contraband goods on some of the ships. Exs. E and E-1 were catalogues of Roamer and Fevreleuba watches. It is admitted that some Roamer watches were in the s.s. Canton consignment but not in other ships. Exs. F and F-1 obviously contained some kind of code which could not be deciphered and about which no reference was made in the judgments of the courts below. Ex. F-2 contains an account of s.s. Canton consignment the document being headed with the word "Ton." A panchanama was duly made regarding the search being Ex. A. Very soon after the search a telegram appears to have been sent by one Advani H. giving his telephone No. 264248 to accused No. 6 at Hong Kong reading

:"Stop everything. Attend telephone tomorrow."

This telephone admittedly stood registered in the personal name of the first accused. On the next day i.e., 22nd July, 1959 a trunk call was booked on this telephone by one Lal Hotchand to accused No. 6. There was evidence that the call had become effective. Statements of the first and the second accused were recorded by Customs Officer on 22nd July, 1959. Summons under Section 171-A of the Sea Customs Act were served on the first accused and certain documents were produced. Sunderdas, the proprietor of Tarasingh and Sons was asked by the Customs Officer to produce the bills of entry relating to the three consignments for the three ships mentioned, namely, s.s. Canton, Arcturus and Nissan Maru. Under his instructions his son Shyamlal contacted accused No. 4 to get the bills of entry. Shyamlal and accused No. 4 went to the residence of accused No. 2. The bill were not immediately forthcoming and accused 2 handed over to Shyamlal a chit Ex. Z-2 to the effect that the bills of entry of s.s. Canton had been received by him on 21st July, 1959. This chit was handed over to Sunderdas and by him produced before the Customs Officer. Statements of Sunderdas, Shyamlal and Kambli were recorded on July 23, 1959. Further statement of the second accused was recorded on 24th July and while making this statement accused No. 2 produced bills of entry relating to s.s. Canton and Star Arcturus along with other documents relating to/or in respect of these consignments. Further attempts were made to get hold of the bills of entry relating to s.s. Nissan Maru by the Customs Office. Accused 3 and 5 were also contacted over this. Accused 5 stated that they would be found with accused No. 2. Ultimately accused No. 4 brought forward the bill of entry Ex. Z-5. The consignment of s.s. Star Arcturus was examined on 24th July, 1959 and that of s.s. Nissan Maru on August 1, 1959. Statements of accused 3 were recorded on 11th and 12th August, 1959. Further searches were made in the business premises of H. B. Advani Brothers, Indo Far-East Traders, Fine Art Traders and Aarkay Saree Museum and other documents were seized. Statements of various persons were recorded up to December 1959 and ultimately a complaint was filed, as already mentioned. All the accused put in separate written statements. They were also examined under Section 342 Cr. P.C. It appears that every one of the accused tried to put the blame on another or others.

9. Put shortly the defence of the accused was as follows. The first accused admitted the search of the premises of H. B. Advani Brothers on 21st July, 1959 and the seizure of the documents and articles mentioned in the panchnama Ex. A. He denied exclusive possession of the premises or even the table having the drawer which according to the prosecution case contained Exts. B to H. He claimed to be merely a manager of the firm which belonged to his father and uncle and denied any financial interest therein. His version was that accused No. 2 used to keep some of his documents and goods in the premises of H. B. Advani Brothers. He did not deny the correctness of his statement before the Customs Officer Ex. Z-142 and the only point made about it was that it was inadmissible in evidence in view of the provisions of Section 171-A of the Sea Customs Act, Section 132 of the Evidence Act and Article 20(3) of the Constitution. [After referring to the defence of accused 2 to 5, and the relevant details with regard to the consignments on the three ships (in Paras 10 to 18), the judgment proceeded];

19. In holding the accused guilty of offences of conspiracy the High Court relied on several circumstances. The first of these was the outcome of the search of the premises of H. B. Advani Brothers on 21st July, 1959 when various documents and articles were seized. The two exhibits which require special attention are Exs. B-1 and F-2. Ex. B-1 mentioned all the three ships s.s. Nissan Maru, Arcturus and Canton, although the importers of the goods were all different. Ex. F-2 was held by the High Court to give a complete account of the goods found on s.s. Canton.

20. The second circumstance was the origin of all the shipments, the shipper in each case being accused 6. The third circumstance relied upon by the prosecution was the virtual admission that accused 3 was staying in Hong Kong with accused 6 from 10th June to 10th July, 1959 during which period all the consignments were put on board.

21. The next circumstance was that accused 4 though not a clearing agent himself was utilising the name of Tarasingh & Sons for clearing all the goods of all the consignments in question.

22. The manner in which the examination orders of the goods were obtained from the Customs Officers for examination of the middle cases in respect of consignments consisting of three cases was also significant. According to the prosecution the conspirators knew and had arranged that genuine goods should always be put in the middle case.

23. The association between the accused, specially accused 2, 3 and 4 in respect of the steps taken for clearing the goods covered by the consignments in question according to the High Court went to prove the conspiracy. Further according to the prosecution the cable sent to Hong Kong on 21st July, 1959 after the search and the trunk telephone call on 22nd July support the same.

24. The High Court dealt generally with the charge of conspiracy against all the accused and individually with respect to the charges raised against each accused and considered the explanations given by them with regard to the circumstances tending to criminate them. Mr. Jethmalani who argued the case of the first appellant at some lenght raised various questions of law with regard to the admissibility of the evidence afforded by statements before the Customs Officers under Section 171-A, the conclusion of the High Court that his client had custody or possession of all the exhibits found as a result of the search of the premises of H. B. Advani Brothers on 21st July, 1959, the correctness of the finding of the High Court that Ex. F-2 contained a complete account with regard to the consignment per s.s. Canton, the finding of the High Court that the C.I.F. Value of the goods exceeded the invoice value many times over by relying on the evidence of an appraiser of the Customs department and the absence of any overt act on the part of his client after the search on 21st July, 1959. The argument with regard to the admissibility of evidence of the statements was adopted by counsel for all the other accused and need not be dealt with separately. Mr. Jethmalani virtually conceded that if his contentions on the above heads were not accepted by this Court, it would be futile for him to argue that the High Court had gone wrong in coming to the conclusion as to the guilt of his client on the strength of the evidence before it and the inference which could legitimately be drawn therefrom.

25. We propose to deal with the other points before examining the contention with regard to the admissibility of the statements made in pursuance of powers exercised by the Customs Officers under Section 171-A. With regard to the finding of the High Court in agreement with that of the Magistrate that accused 1 had the custody or possession of exhibits, B to F-2, counsel argued that except those seized from his wallet the others were found in the drawer of the table of the premises searched, there was no evidence to show that the said table was the table of his client and as there was no proof that his client had any financial or proprietary interest in the firm of H. B. Advani Brothers; there was nothing to warrant the conclusion that the exhibits other than those in wallet were in his custody. The High Court dealt elaborately with this point and we do not think it necessary to re-examine the same except to note the comment made before the High Court as well as before us that the evidence of Mr. Darne, the panch witness who had said that at the time of the search accused 1 was sitting at the table in a drawer of which the incriminating exhibits were found, was unbelievable. It was argued that inasmuch as the panchnama did not record this fact Darne who gave evidence in 1962 should not have been believed when he claimed to have remembered the fact of accused 1 sitting at the table mentioned. Both the Courts accepted Darnes statement and we see no good reason to take a different view. After all it would not be extraordinary for any person to recollect even after a considerable lapse of time that when he entered the room which was going to be searched, he found a particular person seated at a certain table inasmuch as this would be the very first thing which would attract anybodys attention.

26. With regard to Ex. F-2 which according to the prosecution case - accepted by the Courts below - contained an account with regard to the consignment per s.s. Canton the prosecution case was that the figures on the left-hand side indicated the rates and the figures on the right-hand side indicated the total C.I.F. value of the goods of each type in that consignment. Before us exception was taken to the two figures 89.80 and 11.02 appearing on the right-hand side. According to the prosecution the figure 11.02 was the amount of insurance premium in dollars paid in respect of the consignment on s.s. Canton. As the original which should have been with accused 2 was not produced, a copy of the insurance policy was put in and marked as Ex. Z-301. Ex. Z-259-F-1 was a copy of the same produced by accused 2 before the Customs Officers on 24th July, 1959 as was borne out by the statement of accused 2. The contents of the two exhibits were found to be the same by both the courts. The Claim Superintendent of the insurance company in Bombay produced the copy of the premium note in respect of the said policy showing the amount of premium as $ 11.02 and said to have been received by the Bombay office of the insurance company. Objection was raised to the admissibility of evidence of one Martin, Assistant Manager of New Zealand Insurance Company, Hong Kong Branch who had joined that branch in 1963 i.e., long after the issue of the policy in 1959 although he had been an employee of the said Company since 1952 and claimed to be familiar with the procedure of insurance of export cargo followed by the company. According to this witness, the company used to prepare as many copies of the policy as were required by the insurer. A carbon of the original was always kept in the office record. Martin produced an office copy of the policy in respect of the consignment on s.s. Canton to which was attached a marine premium debit note and it was his evidence that in the usual course of business of the company such a debit note was always prepared at the time when the policy was issued and a copy thereof was attached to the copy of the policy kept in the records. Counsel objected to the reception of the copy of the premium note on the ground that there was no proof of its making or its correctness. The High Court accepted the evidence of Martin that the copy of the premium debit note had been attached to the policy kept in the office record relying on the presumption afforded by illustration (f) to Section 114 of the Evidence Act that the practice of the insurance company of attaching such a note to the policy had been followed in this particular case. In our view the High Court was entitled to do so and no objection can be allowed to be raised on the ground that there was no proof of the preparation of the original premium note. [The judgment here discussed the evidence as to the amount of the freight charged

(Paras 27-29), and proceeded] :

30. We now come to the question as to the admissibility of the statements made to the Customs Officers under Section 171-A of the Sea Customs Act. At the outset it has to be noted that this section came into the Statue Book in the year 1955 and there was nothing similar to it in the Act before such inclusion. The section reads :

"(1) Any officer of Customs duly employed in the prevention of smuggling shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other things in any inquiry which such officer is making in connection with the smuggling of any goods.

2. A summons to produce documents or other things may be made 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.

3. All persons so summoned shall be bound to attend either in person 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 to produce such documents and other things as may be required :

Provided that the exemption under Section 132 of the Code of Civil Procedure, 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."

31. In Maqbool Hussain v. State of Bombay, 1953 SCR 730 [LQ/SC/1953/50] = 1983 ELT 1284 where provisions of the Sea Customs Act were considered at some length by this Court before the amendment of 1955 by insertion of Section 171-A it was said (at p. 742 of SCR) :

"All this is for the enforcement of the levy of and safeguarding the recovery of the sea customs duties. There is no procedure prescribed to be followed by the Customs Officer in the matter of such adjudication and the proceedings before the Customs Officers are not assimilated in any manner whatever to proceedings in courts of law according to the provisions of the Civil or the Criminal Procedure Code. The Customs Officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness......... All these provisions go to show that far from being authorities bound by any rules of evidence or procedure established by law and invested with power to enforce their own judgments or orders, the Sea Customs Authorities are merely constituted administrative machinery for the purpose of adjudging confiscation, increased rates of duty and penalty proscribed in the Act.............We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy."

The Court in that case was dealing with the question as to whether an order of confiscation was a punishment inflicted by a court or a judicial tribunal within the meaning of Art. 20(2) of the Constitution.

32. In Thomas Dana v. State of Punjab, 1959 Supp (1) SCR 274 at p. 286 the provisions of the Sea Customs Act were examined again and referring to Section 187-A it was said :

This section makes it clear that the Chief Customs Officer or any other officer lower in rank than him in the Customs department, is not a "court", and that the offence punishable under item 81 of the Schedule to section 167, cannot be taken cognizance of by any court, except upon a complaint in writing, made as prescribed in that section.

With regard to the use of the word offence indiscriminately all over the Act it was said :

"All criminal offences are offences, but all offences in the sense of infringement of a law are net criminal offences......but when a trial on a charge of a criminal offence is intended under any one of the entries of the Schedule aforesaid, it is only the Magistrate having jurisdiction, who is empowered to impose a sentence of imprisonment or fine or both."

33. It was argued before us that the position became entirely different as a result of the inclusion of Sec. 171-A as sub-section (4) of the section went to show that an enquiry by Customs authorities wherein statements of persons recorded was "to be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code". Counsel argued that such proceeding was a judicial proceeding also for the other purposes thus attracting the operation of Section 132 of the Evidence Act. Apart from the point as to non-exercise of a claim of privilege (about which we express no opinion) there can be no question that if the said section of the Evidence Act is to be attracted to such a proceeding statements made by him in any such inquiry could not be proved against him in the criminal proceedings launched. It was argued that sub-section (3) of Section 171-A made it obligatory on the persons summoned to state the truth upon any subject respecting which he was examined and if the proceeding was a judicial proceeding there was nothing to exclude the applicability of Section 132. Our attention was drawn to Section 1 of the Indian Evidence Act which made the Statue applicable to all judicial proceedings in or before any Court in the whole of India. As Court in S. 3 included all Judges and Magistrates and all persons except arbitrators, legally authorised to take evidence, it was contended that the Customs Officer being authorised by Section 171-A of the Sea Customs Act were courts within the meaning of the definition of S. 3. Reference may also be made to the definition of of evidence in the said section which shows that the word means and includes inter alia all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.34. Reference was also made to S. 4(1) of the Code of Criminal Procedure, 1898 under which investigation for purposes of the Code includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person other than a Magistrate) who is authorised by a Magistrate in this behalf, and cl. (m) which defines "judicial proceeding" as including any proceeding in the course of which evidence is or may be legally taken on oath. Counsel relied strongly on the judgment of this Court in Lalji Haridas v. State of Maharashtra, (1964) 6 SCR 700 [LQ/SC/1964/34] , where this Court had to consider whether an Income-tax Officer exercising powers under S. 37 of the Income-tax Act, 1922 was a court within the meaning of S. 195(1)(b) of the Code of Criminal Procedure making the sanction thereunder obligatory for the filing of a complaint in respect of an offence alleged to have been committed under S. 193 of the Penal Code. Sub-sections (1) to (3) of S. 37 of the Income-tax Act were worded somewhat differently from those of sub-sections (1) to (3) of S. 171-A of the Sea Customs Act. The words in sub-section (4) of S. 37 are for all practical purposes identical with those used in S. 171-A(4). There this Court by a majority of three to two were of opinion that the proceedings before the Income-tax Officer were judicial proceedings not only under S. 193 of the Indian Penal Code but were also to be treated as proceedings in any court for the purpose of S. 195(1)(b) of the Code of Criminal Procedure. The majority Judges referred to the sections in the Indian Penal Code and the Criminal P.C. mentioned above and to provisions in various other Acts wherein the legislature had expressly mentioned that S. 195 Criminal P.C. would apply to proceedings before diverse authorities and accepted the argument that reading S. 193, I.P.C. and S. 195(1)(b), Criminal P.C. together it would be reasonable to hold that proceedings which are judicial under the former should be taken to be proceedings under the latter. According to the minority Judges although the words "judicial proceeding" were wide enough to include not only proceedings before a Court but proceedings before certain tribunals it was clear from a decision of this Court in Indo-China Steam Navigation Co., Ltd. v. Jasjit Singh, the Addl. Collector of Customs, (1964) 7 SCR 594 = 1983 ELT 1392 that a Customs Officer was not a "a Court or Tribunal" and S. 37(4) of the Income-tax Act should not be given a meaning different to that given in Section 171-A(4) of the Sea Customs Act".35. In our view if the Legislature intended that the inquiry under Section 171-A was to be considered a judicial proceeding not within the narrow limits therein specified but generally, it could have used suitable words to express its intention. Although this Court gave a wider meaning to the expression judicial proceeding in Lalji Haridass case, (1964) 6 SCR 700 [LQ/SC/1964/34] there is nothing in that judgment to warrant a still wider interpretation of that definition.

36. Mr. Jethmalani referred to the provisions in the Indian Oaths Act (X of 1873) and on the basis of his argument that the statements under Section 171-A(4) were made on oath contended that the proceeding became a judicial proceeding in the wider sense of the word. In our view the Oaths Act has no application here. The preamble to the Act shows that it was an Act to consolidate the law relating to judicial oaths, affirmations and declarations and was enacted because the Legislature thought it "expedient to consolidate the law relating to judicial oaths, affirmations and declarations and to repeal the law relating to official oaths, affirmations and declarations". Section 4 of the Act provided that :

"The following Courts and persons are authorised to administer, by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law :

(a) all Courts and persons having by law or consent of parties authority to receive evidence."

The relevant portion of Section 5 runs -

"Oaths or affirmations shall be made by the following persons :-

(a) all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examine such persons and to receive evidence;"

37. Counsel argued that a Customs Officer was a person who had authority by law to receive evidence within the meaning of Section 4 of the Oaths Act and anybody who could be lawfully examined before such a person would be a witness within the meaning of Section 5 and as such it would be necessary to administer oath to them. In our view, the argument proceeds on a complete misconception of the provisions of the Act. The preamble to the Act shows that the oaths referred to are only judicial oaths and Section 7 shows that all such oaths had to be administered according to such forms as the High Court might prescribe. The Customs Officers have nothing to do with such forms and nothing has been shown to us that any such formality was ever complied with. Neither do the records show that any oath was administered to any person making a statement under Section 171-A. In Maqbool Hussains case, 1953 SCR 730 [LQ/SC/1953/50] = 1983 ELT 1284 this Court stated expressly that the Customs Officers were not authorised to administer oath and the position according to us is not altered by the insertion of Section 171-A in 1955.

38. Mr. Jethmalani referred us to the decision in Queen Empress v. Tulja, (1888) ILR 12 Bom 36 at page 42 and to certain observations of West, J., in that case. There it was held that a Sub-Registrar under the Registration Act (III of 1877) was not a Judge, and, therefore, was not a Court within the meaning of Section 195 of the Code of Criminal Procedure and as such his sanction was not necessary for a prosecution for forgery in respect of a forged document presented for registration in his office. West, J., had however observed that :

"An inquiry is judicial if the object of it is to determine a jural relation between one person and another, or a group of persons; between him and the community generally; but even a judge, acting without such an object in view, is not acting judicially."

Relying on this observation counsel argued that the object of an inquiry under Section 171-A was to find out and established the jural liability of the persons making the statement, viz., whether he had committed an offence or not, and as such the inquiry was a judicial proceeding. In our view the argument is not worthy of acceptance. At the stage envisaged by Section 171-A a Customs Officer is given the power to interrogate any person in connection with the smuggling of any goods which it is his duty to prevent. Such a person may have nothing to do with the smuggling of any goods although he may know where such goods are or who has or had them. Sub-section (3) of Section 171-A does not compel any person to make a statement but if he makes a statement he has to state the truth so as to avoid punishment under Section 193, I.P.C. At that stage nothing may be known as to whether an offence has been committed or who has committed it and the person interrogated at that stage certainly is not a person accused of or charged with an offence. He is merely called upon to give evidence to facilitate an inquiry. He is not a witness giving evidence in a Court and his testimony will make him liable under Section 193, I.P.C. only because of the express provision of law in sub-section (4) of Section 171-A.

39. Counsel also argued that as a Customs Officer according to all the decisions of this Court already mentioned, is to act judicially, a proceeding for recording evidence before him was a judicial proceeding. This is wholly without any force because even administrative officers have to act judicially. Counsel further argued that a deeming provision in a statute was not necessarily designed to give an artificial construction to a word or a phrase but it might be used for other purposes also. He referred to the case of St. Aubyn v. Attorney-General, 1951-2 All ER 473 at page 498 where it was said :

The word "deemed" is used a great deal in modern legislation. Sometimes it is used to impose for the purpose of a statute an artificial construction for a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is in the ordinary sense, impossible.

It was argued that the Legislature might well have used the word "deemed" in sub-section (4) of Section 171 not in the first of the above senses but in the second, if not the third. In our view the meaning to be attached to the word "deemed" must depend upon the context in which it is used. In Lalji Haridass case, (1964) 6 SCR 700 [LQ/SC/1964/34] , this Court went elaborately into the question as to the extent of this deeming provision which would have been wholly redundant if the word deemed in Section 171-A(4) was used in any sense other than to give an artificial construction.

40. The second branch of Mr. Jethmalanis argument under this head was that the principle underlying Section 132 of the Evidence Act was a principle of Common Law well known to criminal jurisprudence and as such was applicable even if Section 132 in terms was not attracted. In this connection, he referred us to certain observations of Subbarao, J., (as he then was) in Amba Lal v. Union of India, 1961-1 SCR 933 [LQ/SC/1961/384] = 1983 ELT 1321 where in his dissenting judgment on the interpretation of Sections 168 and 171-A of the Act his Lordship had observed that :

"To such a situation, though the provisions of the Code of Criminal Procedure or the Evidence Act may not apply except in so far as they are statutorily made applicable, the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply."41. Counsel also referred us to the decision in Regina v. Benjamin Scott, (1856) 169 ER 909. The question before the Court in that case was whether the answers to the questions put to the defendant before the Court of bankruptcy relating to his trade dealings and estate tending to disclose a fraud of concealment of his property was admissible evidence against him on an indictment charging him with altering, mutilating and falsifying his books with intent to defraud his creditors. The examination was taken in conformity with Section 117 of the Bankrupt Law Consolidation Act (12 and 13 Vict. c. 196) which enacted that a bankrupt may be examined by the Court "touching all matters relating to his trade, dealings or estate, or which may tend to disclose any secret grant, conveyance or concealment of his lands etc.".

There was no dispute that the questions put were relevant as touching matters relating to his trade etc. Delivering, judgment in which three other Judges concurred, Lord Campbell, C.J., held that the defendant was bound to answer the questions although by his answers he might criminate himself. According to the learned Chief Justice :

"........and we think it would be contravention of the express intentions of the Legislature to permit the bankrupt to refuse to answer such questions; for ever since the reign of Elizabeth successive statutes have been passed, purporting to guard against frauds in bankruptcy and the bankrupt, when called upon to answer questions respecting his estate and effects, should not be allowed to avail himself of the common law maxim "nemo tenetur se pusum accusare".

With regard to the maxim relied on by the defendants counsel he said :

"But Parliament may take away this privilege, and enact that a party may be bound to accuse himself, that is, answering which he may be criminated."

He further held that the maxim could not be treated as an implied proviso to be subjoined to the 117th section.

42. Mr. Jethmalani however relied on certain observations of Coleridge, J., in his dissenting judgment. In our view the maxim of the English Common Law can have no application here. Our law of evidence which is a complete Code does not permit the importation of any principle of English Common Law relating to evidence in criminal cases to the contrary. Section 2 of the Indian Evidence Act before its repeal by the Repealing Act (1 of 1938) provided as follows :

"2. On and from that day (1st September, 1872) the following laws shall be repealed :

(1) All rules of Evidence not contained in any Statute, Act or Regulation in force in any part of British India;

(2) All such rules, laws and regulations as have acquired the force of law under the 25th section of the Indian Councils Act, 1861 in so far as they relate to any matter herein provide for; and

(3) The enactments mentioned in the schedule hereto, to the extent specified in the third column in the said schedule.

But nothing herein contained shall be deemed to affect any provision of any Statute, Act or Regulation in force in any part of British India and not hereby expressly repealed."

43. We may usefully refer to the judgment of the Privy Council in Sris Chandra Nandi v. Rakhalananda (deceased), ILR (1941) 1 Cal 468, where the Judicial Committee approved of the statement of the law contained in the judgment of the High Court reading :

"It is to be noticed in this connection that Section 2(1) of the Indian Evidence Act repeals the whole of the English common law on evidence so far as it was in force in British India before the passing of the Indian Evidence Act, and that provision of the law in effect prohibits the employment of any kind of evidence not specifically authorised by the Act itself."

Lord Atkin who delivered the judgment of the Judicial Committee pointed out that evidence which was not admissible under the Indian Evidence Act could not be let in for the purpose of bringing out the truth and said :

"What matters should be given in evidence as essential for the ascertainment of truth, it is the purpose of the law of evidence, whether at common law or by statute to define. Once a statute is passed, which purports to contain the whole law, it is imperative. It is not open to any judge to exercise a dispensing power, and admit evidence not admissible by statute, because to him it appears that the irregular evidence would throw light upon the issue. The rules of evidence, whether contained in a statute or not, are the result of long experience, choosing no doubt to confine evidence to particular forms, and therefore eliminating others which it is conceivable might assist in arriving at truth."

The question there related to the admissibility of evidence which according to the Judicial Committee should not have been adduced. The question before us is somewhat different but if the Indian Evidence Act is a complete Code repealing all rules of evidence not to be found therein there is, in our opinion, no scope for introduction of a rule of evidence in criminal cases unless it is within the four corners of Section 132 or some other provision of the Evidence Act. As the Act does not apply to interrogations by a Customs Officer exercising powers under Section 171-A of the Sea Customs Act, Section 132 of the Evidence Act cannot be attracted.

44. Lastly it was contended that Section 171-A did not authorise interrogation of subject to extract Admissions from him which could be used against him on a future occasion. In aid of this proposition reliance was placed on a decision of the House of Lords in Commrs. of Customs and Excise v. Harz, (1967) 1 All ER 177. The main question there was whether the answers given by the respondents in the course of interrogation by Customs Officer were admissible in evidence. The power to interrogate was said to be derived from the Finance Act, 1946, Section 20(3) which provided in substance that every person concerned with the purchase or importation of goods etc., shall furnish to the commissioners within such time and in such form as they may require information relating to the goods or to the purchase or importation thereof etc., and shall upon demand made by any officer or other persons authorised in that behalf by the Commissioners produce any books or accounts or other documents of whatever nature relating thereto for inspection by that officer or person. On a construction of that provision Lord Reid was of the view that there was nothing therein to require the trader to give answers which might incriminate him. His Lordship also observed that the section gave the officer no right to submit the respondents to prolonged interrogation they had to undergo and the respondents could not have been prosecuted if they had refused to answer. His Lordship observed that the right of the Commissioners to require information was quite different and said :

"If a demand for information is made in the proper manner the trader is bound to answer the demand within the time and in the form required whether or not the answer may tend to incriminate him, and if he fails to comply with the demand he can be prosecuted. If he answers falsely he can be prosecuted for that, and, if he answers in such a manner as to incriminate himself. I can see no reason why his answer should not be used against him. Some statutes expressly provide that incriminating answers may be used against the person who gives them and some statutes expressly provide that they may not. Where, as here, there is no such express provision the question whether such answers are admissible evidence must depend on the proper construction of the particular statute. Although I need not decide the point it seems to me to be reasonably clear that incriminating answers to a proper demand under this section must be admissible if the statutory provision is to achieve its obvious purpose."

45. Prima facie these provisions are against the contention of the appellant. In that case the House of Lords in effect held that the provision of law did not entitle the Commissioners "to send a representative to confront the trader, put questions to him orally and demand oral answers on the spot; and.........that it does not entitle them to send their representative to subject the trader to a prolonged interrogation in the nature of a cross-examination". The provisions of Sec. 171-A are in sharp contrast to the provision of law before the House of Lords. Here the statute expressly authorises officers of customs to secure the attendance of persons to give evidence or produce documents or things relevant in any enquiry in connection with the smuggling of goods. A limit is set to the right to obtain production in sub-section (2) of the section and sub-sections (3) and (4) lay down that if a person summoned does not state the truth in such an examination he may be proceeded against under Sec. 193, I.P.C. for giving false evidence.46. Counsel also drew our attention to the new Sections 107 and 108 of the Customs Act, 1962 where the power to examine persons has been given to all officers of customs by the first of the above-mentioned sections and the power to summon persons to give evidence and produce documents as in Sec. 171-A is given to a gazetted officer of customs under Section 108 of the new Act. In our view, this difference is immaterial for the purpose of this case and there is nothing in Section 171-A which limits the right of interrogation to questions the answers whereto may not incriminate the person interrogated.

47. The High Court considered at some length the question as to whether the statement of the accused under Section 171-A(4) should be considered as a whole or whether reliance could be placed upon portions thereof rejecting the rest. It was argued before the High Court that inasmuch as the statements were sought to be relied upon as a confession the Court was bound to take into account not only the portions containing admissions but also the explanations which followed. The High Court held that a statement under S. 171-A did not stand at par with a confession so that it had to be taken as a whole or rejected as a whole. Even with regard to the statements portions of which are inculpatory against the maker and other portions which are not, it has been held in a recent decision of this court that the inculpatory portion can be accepted if the ex-culpatory portion is found to be inherently improbable...........vide. Nishi Kant v. State of Bihar, Cri. A. 190 of 1966, dated 2-12-1968 and reported so far in AIR 1969 SC 422. In this case the explanations contained in the statements were considered by the courts below and for reasons given they thought fit to reject the same and we see reason to come to a different view.