Statement before Customs Officer - Also needs Review
FOR some strange reason, the Courts in this country believe that officers of Customs, Central Excise and the like are not as bad as the police officers. A statement given before a police officer is not a valid piece of evidence while the one given before a Customs or Excise officer is. The logic would be that the Police obtain statements by force and the Customs is full of clones of ahimsavadi officers and the hard core Criminal who does not succumb to third degree torture of the police will sing voluntarily before the Customs!
Why would anyone voluntarily confess to a crime? It is a known fact that every voluntary statement is obtained by threat and torture and if any volunteer has the audacity to retract immediately, he is further tortured to retract his retraction.
But the law is that a statement before these authorities is EVIDENCE.
In Ramesh Chandra Mehta v State of West Bengal, way back in 1968, a Constitution Bench of five judges of the Supreme Court held, "a Customs Officer is under the Act of 1962 not a police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made are not covered by Section 25 of the Indian Evidence Act."
In the same year another Constitutional Bench in Ilyas v Collector of Customs, held, "even though the customs officers have been invested with many of the powers which an officer in charge of a police station exercises when investigating a cognizable offence he does not thereby become a police officer within the meaning of s. 25 of the Evidence Act and so the confessional statements made by accused persons to customs officials would be admissible in evidence against them."
Since then, many judgements have consistently taken the same view and Statements recorded by Customs officers (by any means) are accepted as consecrated confessions.
I brought this issue to the notice of the Parliamentary Standing Committee on Finance, when TIOL was invited to speak before the Committee eight years ago.
The Hon'ble Chairman of the Standing Committee was surprised and said,
I did not know about this aspect. I am surprised that a person who is recording the evidence is also, in a way, the prosecutor. In case of Police, they are not allowed to record the evidence because it is not acceptable in a court of law. The Police have to approach the Magistrate to record the evidence. Why is it that there is no third agency involved in this case? You have talked about the disadvantages of the present system. I am quite surprised as a common citizen that the Custom people have been allowed this authority whereas the Police have not been allowed to do so. Both are trying to prosecute the people whom they consider to be guilty. Let me know the background and whether there is any legal solution for this. Apart from prohibiting a Custom officer from recording the evidence, we should say that such and such person should be present at the time of recording the evidence or something like that. If you have got any suggestion to ensure that this third degree method is not employed or if it is employed, their evidence is not accepted, please submit. You can send this information after due consideration, in writing.
Perhaps it is time the Supreme Court reconsidered not only Kanhaiyalal but also Ramesh Chandra Mehta in relation to Statements under the Customs Act and Central Excise Act. Recently a senior officer of a Company told me that he was forced to give a statement that he took CENVAT credit knowing that he was not eligible for it!