- (1.)THIS revisional application raises a question of inadmissibility of certain statement made by the petitioners - accused to the Central Excise officers, on the ground of immunity claimed under sub - clauses [3] of Article 20 of the constitution of India. The relevant facts giving rise to the objection taken by the petitioner - accused admissibility of his certain statements under Article 20 [3] of the constitution may be stated: The petitioners Ambalal Chinmalal Chokshi is being prosecuted on a complaint being filed on 19-12-1963 by the respondents [shri H. R. Jokhi, Assistant Collector of central Excise, Marine and Preventive Division, Collector of Central Excise, Bombay], for an offense under Rule 126p of Part XII - A of the Defence of India Rules, 1963 [which part contains 'gold Control Rules"] and section 135 [b] of the Customs act, 1962 [ Act 52 of 1962]. The allegation made against the petitioners is that he had acquired possession and was concerned in carrying removing, harbouring, keeping, concealing and otherwise dealing with smuggled gold and that he had not made any declaration about the said gold and had no permit as required under the Gold Control Rules. Before the complaint was filed on 19th December 1963, by the Respondents for the alleged offence said to have been committed by the petitioners, on 5th April 1963, written search Authorization [ex. A] under Rules 126 [1] [2] of the Gold Control Rules was issued by the superintendent waghs of the Central Excise, central Intelligence Unit, Bombay in Favour of Shri V. B. Rane, Deputy superintendent of Central Excise [preventive and Marine Division, Bombay], Authorizes in the latters officer to enter and search certain premises being the flat to enter and search certain premises latter being the flat of the petitioners in building called 'neeta' at 90 Marine Lines, behind Marine Lines Railway station Bombay for the said gold and if found to seize and produce the same before the superintendent and in pursuance of its search authorization, the aforesaid premises of the petitioners were raided to and during the course of outside such raid some gold was found on ledge outside the balcony of one Kotak on the 1st floor and a bag containing currency notes and some other documents was found from the and some other documents was found from the balcony of the one Modi by the side of the balcony of the petitioner on the 2nd floor. A search of the petitioner flat was also conducted and some documents and the property along with the aforesaid gold and the bag of currency notes were seized under a panchnama [ex. O], which was made at the Spot. It appears that the petitioners was interrogated by Shri Rane, Deputy superintendent of I respect of the said gold as also the bag of currency notes at the time of the making of the panchnama and the statements made by the petitioners were incorporated in the Panchnama. It may be stated at this stages that as regards the gold [12 slabs] found outside the Balcony of Kotak on the 1st floor the petitioners stated that he same did not being to him or any body in his house or family and that he did not know anything's about it. , while regarding the currency notes found in a bag, which was recovered from the balcony of Modi which was by the said of the balcony of the petitioners, the petitioners claimed that the money belonged to him together with the other contents of the bag and the he further stated that the cloth bag had been put by him in his neighbor's flat across the balcony and with out the knowledge's of Mr. Modi when the officers went of search. Later on the Central Excise officers summoned the petitioner and detailed statement of his was recorded by Deputy superintendent parekh under instructions of superintendent wagh, who interrogated the petitioner under the power vested I by law, with regard to the gold and the bat containing currency notes, the petitioners gave his version in his detailed statement recorded in this occasion which was almost similar to that which he had given at the time of marking of the panchnama.
(2.)AFTER completing the investigation, the Respondents filed a complaint on 19th December 1963, against the petitioner for the alleged offenses mentioned above, being Cases No. 62 / W of the 1964, the trial where of is being conducted by the learned additional Chief Presidency Magistrates, 8th court, Esplanade, Bombay. After fully setting out the manner in which the search of the petitioners premises was carried out as also the circumstances in which the gold and the bag containing the currency notes were recovered during the raid and the statement made by the petitioners, in connection therewith, the respondents categorically averred in his complaint as follows:-
"in view of all the premises aforesaid the complainant says that it was the accused who threw or caused to be thrown the said gold in the two bags into the said shaft with a view to avoid the finding and seizure of the said gold in his flat by the central Excise officers just as he admittedly threw that the [bag] containing the currency notes into the flat of Shri C. U. mody with a view to avoiding the finding and seizure of the said currency notes in this flat by prays and that the necessary process be issued against he accused and that the accused be dealt with according to law".
It may be stated that the raid as not for the purpose of seizing the currency notes but admittedly was for the purpose of the seizing gold in respect and where of contravention of Gold Control Rules and Customs act, was apprehended and it will appear clear from the aforesaid averments made in the complaint that though the petitioners accused had disowned any connection with the balcony of Shri Kotakm the Respondents sought to establish petitioner's connection with the gold or rather his possession therefore in contravention of Gold Control Rules, by relying upon the Admitted conduct on the part of the petitioners of into the flat of shri Mody [which currency notes were claimed by him as his], currency, thus rendering highly probable a similar conduct on his parts in connection with the gold which he disowned. At the trial therefore the statement made by the petitioners and recorded in the panchanama [ex,. O] as well as the portion of his detailed statement recorded by Deputy Superintendent parekh were sought to be proved by tendering he same as in evidence and the petitioners objected to the admissibility of these statement. A three fold objection was raised by counsel on behalf of the petitioner before the learned magistrate. In the first place it was contended from the petitioner under completion at a time when he was accused of offences, under the Gold Control Rules and customs Act, could not be used in evidence against him and were barred under Article 20 [3] of the constitution of the India and the petitioners was entitled to claim immunity under the Said provisions of the constitution in respect of was placed upon the recitals and the operative and part of the Search Authorization dated 5th April 1963 as well as the recitals in the panchnama to show that at the material in the time petitioner was accused of commission of offense under the Gold Control Rules, and customs act. Secondly it was contended that the Central Excise officers who recorded these statements made to them, therefore would not be admissible and in that behalf reliance was placed upon decision and the supreme court reported in Raja Ram Jaiswal v. State of Bihar, AIR 1964 SC 828 in which in an excise officer under the Bihar and orrissa Excise act was held to be a police officer within the meaning of section 25 of the evidence act. Thirdly it, was urged that he statement in question would be hit by the provisions of section 162 of the criminal procedure code, because they were recorded by officers who were in the position of the police offices and had however of investigation analogous to those in chapter 14 of the criminal procedure code. These objections were heard by he his learned Magistrate in grant detail and by his order dated 24th July 1964, he overruled the objections and ordered the statement to be admitted in evidence Regarding the first contention he took the view that the at the time when the panchnama was drawn which incorporated certain statement of the petitioners as well as the time when the detailed statement of the petitioners had a formal accusation made against him for the fist time when the complaint was filed against him by the Respondent on 19th December 1963, which resulted in proceeds being issued against him by the courts that , therefore the privilege contained in Article 20 [3] of the constitution could not be claimed by him. With regard to the argument under section 25 of the Evidence act he had that the statements of the petitioners in question did not amount of the confession and at the highest the petitioners could be said to have made an admission of the grave incriminating fact and therefore the statements were not hit by section 25 of the Evidence act. As regard the bar of section 162 of the criminal procedure code he took the view of that the Criminal procedure the code he took he view that the central Excise officers, who had recorded the statement of the petitioner were not in the position of police officers nor was investigation carried out by theme under Chapter 14 of the criminal procedure code and in the that view of the matter, he held that the statement, in question were not hit of rendered inadmissible under section 162 of the criminal procedure code. Consequently he ordered that he statement objected to should be admitted in evidence. It is against this order of the learned Magistrate that the present revisional application has-been preferred by the petitioner accused to his court.
(3.)AT the outset Mr. Gumstate, the learned additional Government pleader, raised a preliminary objection against the maintainability of the revisional application on the ground that the order complained by merely decides the question of admissibility o merely or otherwise of certain evidence at a trial which is still pending before the learned magistrate and he therefore urged that at such interlocutory stage this court shouldn't interfere with the order passed in exercise or revisional jurisdiction. he further pointed out that the order of the learned Magistrate dealt with procedural points by overruling the objections raised by the petitioners to the admissibility of certain statement and it would not only be open to the petitioner but would be proper for him to raise these point in appeal after the trail before the learned Magistrate is concluded. On the other hand Mr. Porus Mehta contended that one of the objections raised to the admissibility of the evidence pertaining to the fundamental right guaranteed to a citizen under article 20 [3] of the constitution and therefore it was but proper for the petitioners to approach this court at the earliest possible opportunity for vindicating his said right Mr. Mehta fairly for conceded that the objections to the admissibility of the evidence and the statement in question under section 25 of the evidence act and section 162 of the Criminal procedure code, may be regarded as procedural and he would not be in position, to ask this court to interfere but with the trial could order on those grounds but since the objection to the admissibility of the statements under Article 20 [3] of the constitution had been raised before the court and had been decided against his client by the trial court he should be permitted by the argue that point and this court would be perfectly justified in deciding that point as in exercise of its revisional jurisdiction. I accepted the contention of Mr. Mehta in this behalf and I allowed him to argue of the point in so far as the objection the admissibility of evidence was based upon the provisions of article 20 [3] of the constitution only. I must mention here that Mr. Mehta was not allowed by me to raise objections to the admissibility of evidence in question under section 25 of the evidence act and section 162 of he criminal procedure code.