P.S.POTI,.J. - (1.) NOTICE in SCA No. 122/84. Shri H. M. Mehta waives service of notice for the respondents and agrees to have the matter heard today.
(2.) THE petitioners in these cases, four in the first and two in the second, have filed these petitions seeking stay of the departmental proceedings under the Customs Act taken up against them pending the disposal of Criminal Case No. 639/83 before the Chief Metropolitan Magistrate, Ahmedabad. The 3rd respondent, the Assistant Collector (Preventive) Customs Headquarters filed a criminal complaint in the Chief Metropolitan Magistrate's Court at Ahmedabad against 22 persons incuding the petitioners in the two cases. Summons have been issued on taking cognizance of this. While the criminal proceeding is thus pending, proceedings have been taken up by issue of show cause notices to the petitioners and certain others as to why action should not be taken under the Customs Act in regard to violation of the provisions of the Act by them. The plea of the petitioners is that on identical facts and circumstances departmental proceedings under the Customs Act are being taken and therefore it is appropriate that these proceedings should be stayed pending the disposal of the criminal proceedings. In support of the prejudice that may be caused to them it is pointed out by the petitioners that by being called upon to answer the departmental proceedings the petitioners may be compelled to disclose their defence prematurely, that this will prejudice their defence in the criminal proceedings, that this will violate the guarantee under Article 20(3) of the Constitution and further that there is likelihood of all the petitioners being called upon to appear in the customs cases as witnesses and compelled to speak to matters which may be incriminating. It is further pointed out that one of the petitioners in one of these petitions, viz. the first petitioner in SCA No. 122/84 has been so summoned as a witness and is being cross -examined.
(3.) IT is not in dispute that the proceedings before the Customs Authorities are not criminal proceedings and the petitioners are not accused in such proceedings. They are no doubt accused in the criminal proceeding taken up against 22 persons including them and it is evidently the petitioners' case that calling upon them to disclose their defence in reply to the show cause notice would be testimonial compulsion falling within Article 20(3) of the Constitution and for that reason the proceedings will necessarily have to be stayed as otherwise there would be infringement of the guarantee under Article 20 (3) of the Constitution. We need not go into this question elaborately in view of what has been said by the Supreme Court in T. G. Gaokar v. R. N. Shukla (AIR 1968 SC 1050) : (1968 Cri LJ 1234). In that case proceedings for contempt were moved against the Customs Authorities for taking proceedings under Section 111 and Section 112 of the Sea Customs Act when criminal proceedings for offences under Section 120 -B of the Indian Penal Code read with Section 135 of the Sea Customs Act, R.131 -B of the Defence of India Rules and Section 8 of the Foreign Exchange Regulation Act were pending. That trial before the Magistrate was imminent. It was the case of the appellants therein that the issue of show cause notice and proceedings pursuant thereto were calculated to obstruct the course of justice. This, plea did not succeed. In dealing with this question the court observed that the Customs Authorities have a discretion to stay the proceedings under Sections 111 and 112 during the pendency of the trial in the criminal court and in the case before them in the exercise of that discretion the authorities had refused to stay the proceedings. Further it was not shown that such action was mala fide or arbitrary and the court would not, under such circumstances, issue a mandamus to control the exercise of that discretion. It was argued before the Supreme Court that Sections 111 and 112 are violative of Art. 20(3) of the Constitution. In support of this it was urged that if there be no stay the petitioner will be compelled to enter the witnessbox to rebut the evidence given against him and will be forced in cross -examination to give answers incriminating himself. While noticing that in "view of the prosecution against the appellant having been commenced he was an accused the court noticed that it was not possible to say to that stage that he was compelled to be a witness against himself. If to support his defence in the proceedings taken under Sections 111 and 112 of the Sea Customs Act the appellant felt the need to enter the witness box that would not be on account of any compulsion attracting the protection under Art. 20(3) of the Constitution, just as an accused in a criminal proceeding offering himself as a witness under Section 342A of the Cri P. C. would not be acting under compulsion if he decides to speak in defence of his case. Those will be instances where the person concerned voluntarily offers himself as a witness and not on account of any compulsion. The court observed in this context (at P. 1236 of Cri LJ) : "It may be very necessary for the accused person to enter the witness -box for substantiating his defence. But this is no reason for saying that the criminal trial compels him to be a witness against himself and is in violation of Article 20(3). Compulsion in the context of Article 20(3) must proceed from another person or authority. The appellant is not compelled to be a witness if he voluntarily gives evidence in his defence".;