Page 220 - ELT_1st September 2020_Vol 373_Part 5

658 EXCISE LAW TIMES [ Vol. 373

45. Section 108 of the Customs Act, 1962 gives power to a Gazetted
Officer of Customs to summon any person to give evidence in any enquiry.
46. Enquiry under Section 108 is deemed to be a “judicial proceeding” by
virtue of sub-section (4) for the purpose of Sections 193 and 228 of the Indian Pe-
nal Code.
47. A person summoned to give statement under Section 108 of the
Customs Act, 1962 before such officer is bound to appear and state truth. Such a
person is not an accused person when such statements are recorded.
48. If such a person gives false statement before such officer, he/she
renders himself/herself liable to be prosecuted for an offence under Section 193
and Section 228 of the Indian Penal Code, 1860 and thus invites a collateral crim-
inal proceedings.
49. As per the decision of the Hon’ble Supreme Court in Percy Rustomji
v. State of Maharashtra - 1971 (1) SCC 847 such officers conducting enquiry under
Section 108 of the Customs Act, 1962 are not police officers and the person
against whom such enquiry is made is also not an accused person. The statement
made by such person in that enquiry “is not a statement made by a person ac-
cused of any offence”.
50. The Court therefore held that Section 24 of the Indian Evidence Act,
1872 is therefore not applicable to such statements.
51. In K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate,
Cochin - (1997) 3 SCC 721 = 1997 (90) E.L.T. 241 (S.C.), the Hon’ble Supreme
Court while holding that such officers are not police officers, at the same time
held that confessional statements recorded by such an officers whether under
compulsion or voluntary cannot be said to have been obtained by threat, in-
ducement or promise and statements recorded under Section 108 of the Customs
Act and are admissible in evidence for prosecution under Section 135 of the Cus-
toms Act, 1962 and they can be the basis for conviction if they are not obtained
under coercion and threat.
52. The Court held that threat emanates from the statute and the officer
merely enforces the law.
53. The position of law summarised by the Hon’ble Supreme Court in
K.L. Pavunny v. Asstt. Collector (HQ), Central Excise Collectorate, (1997) 3 SCC 721 :
1997 SCC (Cri) 444 in para 17 = 1997 (90) E.L.T. 241 (S.C.) is reproduced below :-
“17. It would thus be clear that the object of the Act empowering Customs
Officers to record the evidence under Section 108 is to collect information of
the contravention of the provisions of the Act or concealment of the contra-
band or avoidance of the duty of excise so as to enable them to collect the
evidence of the proof of contravention of the provisions of the Act so as to
initiate proceedings for further action of confiscation of the contraband or
imposition of the penalty under the Act, etc. By virtue of authority of law,
the officer exercising the powers under the Act is an authority within the
meaning of Section 24 of the Evidence Act.
a. Though the authority/officer on suspecting a person of having
committed the crime under the Act can record his statement, such a
person perforce is not a person accused under the Act.

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