Page 27 - GSTL_13th August 2020_Vol 39_Part 2

2020 ] PROSECUTION UNDER INDIRECT TAX LAWS IN INDIA J35
(2), is appointed shall be deemed to be a police station and such officer shall be
deemed to be the officer in charge of such station. The Section 21 of Central Ex-
cise Act, 1944 only provides for the purpose of enquiry, a Central Excise officer
shall have the powers of an officer in charge of a police station when investigat-
ing a cognizable offence. Also, unlike in Bihar and Orissa Excise Act the Central
Excise officer has neither power to submit a charge sheet under Section 173 of the
Cr.P.C. nor the Central Excise officer is deemed to be an officer in charge of a
police station. Therefore, the Supreme Court decided that mere conferment of
powers of investigation into criminal offence under Section 9 of the Act does not
make a Central Excise officer a police officer even in the broader view taken in
regard to construing the term police officer as appearing in Section 25 of Indian
Evidence Act. Therefore the Apex Court finally held in aforesaid case that the
statements recorded under Section 14 of the Central Excise Act, 1944 and confes-
sions made thereunder are admissible as evidence and would not be hit by bar of
Section 25 of the Evidence Act and would be admissible as evidence unless the
same is shown to have been obtained by inducement, threat or promise as stated
in Section 24 of Indian Evidence Act, 1872.
Whether the confessions made before the officers of indirect tax laws would be hit
by testimonial compulsion as envisaged in Article 20(3) of Constitution of India?
In the case of Ramesh Chandra Mehta v. The State of West Bengal - (1970) 72
BOM LR 787 one of the plea made before the Apex Court was that the statements
made before the Customs officer were inadmissible, because Mehta and others
being persons accused of an offence were compelled under the provisions of Sec-
tion 171A of the Sea Customs Act, 1878, to be witnesses against themselves
which is barred by Article 20(3) of Constitution of India.
The Apex Court while giving its finding on the above question stated
that if one claims guarantee under testimonial compulsion incorporated under
Article 20(3) of the Constitution one has to establish that one was accused during
the course of recording of the statement. The Apex Court further held that dur-
ing the enquiry under Section 171A of Sea Customs Act he is just a suspected
person and not an accused. He would become an accused the moment Customs
officer decides to file a complaint against him under Section 177 of Sea Customs
Act before magistrate. This ratio of Apex Court in regard to testimonial compul-
sion is still being followed in all cases relating to indirect tax laws. In brief in in-
direct tax laws the power is vested in gazetted officer to summon a person to
produce documents or other things which are in his possession. During the re-
cording of the statement he may be a witness or a suspected person but not an
accused as contemplated under Article 20(3) of Constitution. Therefore, the con-
fessions recorded during the course of enquiry are not hit by bar of testimonial
compulsion. As per the provisions of above said indirect tax statutes the person
can be termed as an accused the moment a complaint is filed against him to the
magistrate, and not during the course of an enquiry being carried out in regard
such as documentary evidence and oral evidence in order to establish the of-
fence.
[Continued on page J44]

GST LAW TIMES  13th August 2020  27