ORDER
Sinha, J.
1. The facts of this case are shortly as follows. The petitioner, the Calcutta Motor and Cycle Co., is a firm registered under the Indian Partnership Act, carrying on business at No. 5, Bentinck Street, Calcutta. As is suggested by the name of the firm, its principal business is in cycles, motor cycles etc., but it seems that it is not confined to such articles only. The shop is situated at premises No. 5, Bentinck Street and its godown is situated at No. 16, Mangoe Lane.
The Customs Authorities received certain Information that the petitioner firm along with various other firms, have been importing goods without valid licences, were not declaring the correct value or description of the goods at the time of importation, and were bringing into existence various documents for the purpose of creating evidence in their favour.
It is stated that the Customs Authorities made enquiries, and came into possession of certain facts and eventually made an application before the Chief Presidency Magistrate, Calcutta under Section 172, Sea Customs Act, and obtained four search warrants on 16-5-1955, for search of various premises and godowns including the shop and the residence of one of the directors, at No. 5, Bentinck Street.
Under Section 172, Sea Customs Act, a Magistrate may, upon application of the Customs Collector, stating his belief that dutiable or prohibited goods are secreted in any place within the local limits of the jurisdiction of such Magistrate, issue warrant for search of such goods. Such warrant is to be executed in the same way and has the same effect as a search warrant issued under the law relating to criminal procedure. The form of the search warrant issued is important. The search warrant issued in respect of 5 Bentinck Street Is as follows :
'Warrant of search after information of particular offence (under Section 172, Sea Customs Act, 1878).
To Rummaging Inspector (Intelligence) Customs House, Calcutta.
Whereas information has been received before me of the illegal importation of goods in contravention of the Sea Customs Act, Import and Export (Control) Act, and Foreign Exchange Regulations Act, and it has been made to appear to me that production of the said illicitly imported goods and relative documents pertinent to that, is essential to the enquiry to be made, or about to be made, into the said suspected offence, this is to authorise you and require you to search for the said goods and relative documents thereto in the premises 5 Bentinck Street Calcutta, and if found returning this warrant, with an endorsement certifying what you have done under it immediately upon its execution-
Given under my hand and seal of the Court, this 16th day of May, 1955.'
2. These search warrants were issued upon application made by the Assistant Collector, Customs, and Superintendent of Preventive Service, to the Chief Presidency Magistrate, to the effect that he had reason to believe that dutiable and/or prohibited goods, and documents relating to such goods, were secreted in the premises mentioned in the Schedule annexed to the letter, and with a request that a warrant for search of the premises for such goods and documents might be issued.
3. Armed with a search warrant, the Customs Authorities made searches and have seized and taken into their possession, two bundles of Shark's skin and velvet, from No. 5 Bentinck Street, and also certain documents, mainly consisting of files. Mr. S. K. Srivastava, Collector of Customs, has affirmed an affidavit dated 9-6-1955, in which he states that on 18-5-1955 during the course of search, he came across various documents incriminating the petitioner firm and confirming the truth of the information which the Customs Authorities had received.
On that date, he wanted to take away these documents which principally consisted of flies, out the lawyers for the petitioner raised legal objections, whereupon he left the files in an ante-room and sealed the door thereof. This was done because he thought that before taking possession of the files it would be safer to consult the Government solicitor. He states that on the next day, when he went to take possession of the files, he found that they had been surreptitiously removed.
Although it is not in the affirmatives, I enquired as to what happened to the seals, and was informed that the seals were intact. The Customs Authorities have laid information before the police and police investigation appears to be proceeding.
4. So far as No. 5, Bentinck Street is concerned, the search warrant contains the following endorsement on the reverse :
'Search warrant executed, copy of search listattached.'
Signed (Sd.) C. Basu
Dt. 9-5-55.
5. The search list consists of two bundles ofshark's skin and velvet and several files and documents.
6. So far as the godown at No. 16 Mangoe Lane is concerned, the search warrant was obtained on 20-5-1955 and thereafter the godown was opened for effecting a search. It appears from the affidavit of Mr. Shrivastava that the petitioners promised to produce certain documents, but kept on postponing production and finally, Instead of producing the documents, the petitioner made the present application.
7. Section 171A, Sea Customs Act, was introduced by the Sea Customs (Amendment) Act, 1955, the relevant provisions of which are as follows :
'171A. (1) Any Officer of the Customs duly empowered in the prevention of smuggling, shall have power to summon any person whose attendance he considers necessary, either to give evidence or produce documents or any other thing, in any enquiry which such officer is making in connection with the smuggling of any goods.
(2) A summons to produce documents or other things may be for the production of certain, specified document or thing or for the production of all documents or things of certain description in the possession, or control, of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by authorised agent, as such officer may direct, and all persons so summoned, shall be bound to state the truth upon any subject respecting which they are examined, or make statements and to produce such documents and other things as may be required.
Provided that, exemption under Section 132, Civil P. C., 1908, shall be applicable to any requisition for attendance under this section.
(4) Every such enquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228, Penal Code.
8. On 19-5-1955 two notices were issued. One was issued by C. Basu, Superintendent, Preventive Service, to Mr. S. M. Jajodia, partner of the petitioner firm, copy whereof is Ext. D to the petition. The notice relates to the two bundles of shark's skin and velvet, which were seized by the Customs Authorities on 19-5-1955 at No. 5 Bentinck Street. It is stated that the said goods were seized by the Customs Preventive Officers employed for the prevention of smuggling,
'as there was reasonable grounds to believe that that had been illegally imported into India, without payment of proper Customs duty, and without production of valid import trade licence as was required for their importation.'
The notice then proceeds to state as follows :
'Importation of goods without entry being duly made and proper Customs duty being paid, is an offence in contravention of Section 86, Sea Customs Act, & is punishable under Section 167 (39) ibid. Importation of the abovementioned goods without valid import trade (control) licence is prohibited under Section 19, Sea Customs Act, read with Section 3(2) and (4) of the Import and Export (Control) Act, 1947, and the late Department of Commerce Notification No. 23-ITC-43, dated 1-7-1943 as amended, the offence being punishable under Section 167(8), Sea Customs Act. No such licence or duty receipt could be produced by you on the spot on demand.'
9. It is stated that before further action was taken under Section 167(8) and under Section 167(39), Sea Customs Act, the said Mr. Jajodia was required to submit any evidence which may be in his possession showing that the goods were legally imported into India on payment of proper Customs duty and supported by valid licence.
The second notice of the 19th is a summons purporting to be under Section 171A(2), Sea Customs Act, which has been introduced by the Sea Customs (Amendment) Act, 1955, No. 21 of 1955. It called upon the said Mr. Jajodia, as partner of the petitioner firm, to produce a number of files which were found missing, including the documents thereof, within a week from the date of the issue of the summons. The summons was issued by D. G. Banerjee, Rummaging Inspector (Intelligence).
10. A third notice was issued on 20-5-1955 under Section 171A, Sea Customs Act. By this notice, J. Smith Chief Inspector, Customs House, Calcutta, summoned Messrs Jugalkissore, Mannalal, Keshup Dev, and Shawarmul Jajodia, partners of the petitioner firm, to appear before him, on Saturday, the21st May '55 at the Customs House, Strand Road, Calcutta. This is exhibit 'B' to the petition.
11. On 23-5-55 a fourth notice was issued by D. C. Banerjee, Rummaging Inspector (Intelligence) under Section 171A, Sea Customs Act, upon the petitioner firm, stating that information had been received that goods in the godown at No. 16, Mangce Lane, have not been imported legally, and the petitioner was unable to satisfy the examining officers that they had been legally imported.
The petitioner was required to produce all the documents relating to the importation, purchase, sale etc., of such goods. All the partners were asked to present themselves together with such documents before the said officer by 3 p. m. on that very day, namely, the 23rd May 1955. This is annexure 'A' to' the affidavit of Mannalal Jajodia, dated 23-5-1955.
This rule was issued on 23-5-1955 by Bose J. upon the respondents to show cause why an order in the nature of a writ of mandamus or like nature, should not be made or given, directing such respondent to recall or cancel the notice and/or summonses dated respectively the 19th, 20th and 23rd May (copies whereof are Exts. A, B and D annexed to the petition, as also Ext. A annexed to the affidavit of Mannalal Jajodia and Sawarmull Jajodia), and to forbear from giving further effect to, or taking any steps therein, and also why an order in the nature of a writ of mandamus should not be made or given directing the respondents to return to the petitioners, two bales of velvet and shark's skin and files, papers and documents in the petition mentioned, and to withdraw their men from the applicant's godown and for other similar orders.
12. The learned Judge also made an interim order restraining the respondents from taking further action, under the said notices or summonses.
13. When the matter first came up before me, the parties agreed to a working arrangement under which the Customs Authorities were to inspect-the contents of the godown and if they considered any goods as smuggled goods, or goods which had offended any Customs Regulations, they were to take custody of the same after making an inventory in the presence of the solicitors for both sides. This order was subsequently varied to the extent that the Customs Authorities were to inspect the goods and take into their custody only samples. The boxes and the samples were to be kept sealed until the disposal of this application.
14. The points taken by Mr. A. K. Sen appearing on behalf of the petitioner are as follows: --
1. That Section 171A, Sea Customs Act, as introduced by Section 12. Sea Customs (Amendment) Act, No. 21 of 1955, is ultra vires in so far as it enables the Customs Authorities to summon a person accused of an offence, either to appear or to produce documents which are likely to incriminate such person, as this offends against Article 20(3) of the Constitution. The respondents should be directed to forbear from enforcing the notices purporting to have been issued under the impugned section.
2. Assuming that the search warrants are valid, the warrants do not authorise the Customs Authorities to seize either the goods or the documents and therefore such seizure is invalid and illegal. In any event, the seizure of the documents cannot be supported in law.
3. That the seizure cannot be supported under Section 178, Sea Customs Act, because there is no evidence to show that the things seized are 'liable to confiscation' under the Sea Customs Act.
4. That the seizure being illegal, the goods and the documents should be directed to be restored to the petitioner.
15. I shall now take the first point, namely, whether Section 171A, Sea Customs Act, introduced by the Sea Customs (Amendment) Act, 1955, is ultra vires or not. Mr. Sen has conceded that the section as a whole is not ultra vires of the Constitution.
According to him, it may apply to a person who has not been accused of having committed an offence, but he challenges its validity in so far as it enables the Customs Authorities to ask a person who has been accused of an offence, to give evidence and/or produce documents which are likely to incriminate him. Article 20(3) states that no person 'accused of ah offence', shall be compelled to be a witness against himself. The word 'offence' has not been defined in the Constitution, but has been defined in the General Clauses Act, which is applicable, as follows:
'Section 2(27), 'offence' shall mean any act or omission made punishable by any law for the time being in force.
16. Mr. Sen has drawn my attention to the fact that in the search warrant, it has been mentioned that the petitioners are accused of contravention of the Sea Customs Act, Import and Export (Control) Act, and the Foreign Exchange Regulations Act in Ex. D to the petition, it is stated that the petitioners had been illegally importing goods without payment of customs duty and without a licence, in contravention of the Sea Customs Act, read with Import and Export (Control) Act 1947.
In the letter dated 23-5-1955, a charge has been made that the goods in the godown at No. 16, Mangoe Lane have been imported illegally. Section 3, Import and Export (Control) Act, 1947, confers power on the Central Government to make orders prohibiting, restricting or otherwise controlling the import, export etc. of goods which are specified. Under Sub-section (2) of Section 3, all such goods are to be deemed as goods of which the import and export had been prohibited or restricted under Section 19, Sea Customs Act, 1878, and the provisions of that Act are made applicable.
Under Section 5, Import and Export (Control) Act, the penalty for contravention of any order made under the Act is imprisonment for a term which may extend to one year or with a line or with both, without prejudice to any confiscation or penalty to which the person may be liable under the provisions of the Sea Customs Act 1878; contravention of the Foreign Exchange Regulation Act entails fine or imprisonment or both (Section 23):
By the Sea Customs (Amendment) Act 1955, an item has been inserted in Section 167, Sea Customs Act namely, item No. 81 which has widened the scope of that section to a large extent & includes any person who knowingly and with intent to defraud the Government or evade prohibition on restriction, acquires possession of, or is in any way concerned with carrying removing depositing harbouring, keeping or selling, or in any manner dealing with any goods which nave been unlawfully removed from the warehouse or are charged with the duty which has not yet been paid etc. Such person shall on conviction before the Magistrate, be liable to imprisonment for a term not exceeding two years or with fine or with both.
17. Mr. Sen points out that Ch. XVI of the Sea Customs Act, is headed 'offences and penalties', and in fact it commences with the words 'punishments for offences -- the offences mentioned in the third column of the same with reference to such offences respectively'. If a person commits an 'offence' as specified in Section 167 (8) the 'penalty' is confiscation, as also a penalty not exceeding three times the value of the goods or not exceeding Rs. 1000.
18. Mr. Sen argues that his client, namely,the partners of the petitioner firm, have plainlybeen accused of contravention of certain legal enactments which are offences, if committed, andare 'punishable with forfeiture, fine and' imprisonment. He argues that 'Penalty' is nothing but afine.
That it may be true that officers who have purported to act under Section 171A, cannot at present and in the immediate proceeding before them, punish the petitioner with more than confiscation or penalty, but if the partners of the petitioner firm are compelled to appear and give evidence or to produce documents, then, upon the strength of such evidence or documents, the Customs Authorities will be entitled to initiated proceedings before a Magistrate which may result, upon conviction, to fine or imprisonment or both.
According to Mr. Sen this constitutes a clear. infringement of Article 20(3) of the Constitution. On the other hand, Mr. Kar appearing on behalf of the respondent argues that the whole of Article 20, including Article 20(3) applies only to criminal proceedings. He says that proceeding before the Customs Officers is in the nature of an administrative enquiry and therefore there is no scope for the application of Article 20(3) of the Constitution, in connection with Article 20(3) of the Constitution Mr. Kar refers to a Supreme Court decision, 'Maqbool Hussain v. State of Bombay' : 1983ECR1598D(SC) , where Bhagwati J. states, as follows:
'The words 'before a Court of law or judicial tribunal' are not to be found in Article 20(2). But if regard be had to the full background indicated above it is clear that in order that the protection of Article 20(2) be invoked by a citizen, there must have been a prosecution and punishment in respect of the same offence before a Court of law or tribunal, required by law to decide the matters in controversy judicially on evidence on oath which It must be authorised by law to administer and not before a tribunal which entertains a depart-mental or administrative enquiry even though set up by Statute but not required to proceed on legal evidence given on oath.
The very wording of Article 20 & the words used therein: 'Convicted', Commission of the Act charged as an offence', 'be subjected to a penalty', commission of the offence', 'prosecuted and punished', 'accused of any offence', would indicate that the proceedings therein contemplated are in the nature of criminal proceedings before a Court of Law or a Judicial Tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of Law or Judicial Tribunal in accordance with the procedure prescribed in the Statute which creates the offence and regulates the procedure'.
19. It would be seen that in the case cited above, the learned Judge was dealing with Article 20(2), where the word 'prosecuted, is used, and it was held that prosecution could only refer to a criminal trial. It is true that the learned Judge did refer to Section 20(3). The question is, whether it was intended to lay down that in order that Article 20(3) should apply, the testimonial compulsion should be actually during the course of a criminal trial
Mr. Kar has also referred me to my own unreported decision dated 27-3-1955, in 'How Jenn Chyan v. S.K. Srivastava (B)'. In that case certain persons were called upon by the customs Authorities to show cause why action should not be taken against the petitioner for contravention of Clause 37(c) and (d) and of Section 167, Sea Customs Act, read with Section 23A, Foreign Exchange Regulations Act, 1947.
Concurrently there were criminal proceedings against the parties for having committed an offence under the Opium Act read with the Penal Code. The petitioner urged that in view of the pendency of the criminal proceedings he should not be compelled to give an explanation as that would be disclosing evidence which, would prejudice him in the criminal trial. I was unable to grant this prayer, and held that there was no contravention of Article 20(3) in asking him to furnish an explanation and to produce documents in support because it did not amount to compelling him to be a witness against himself.
I further said that Article 20(3) means that the person shall not be compelled to testify against himself in the course of the trial of a criminal offence. I regret to say that in the said case the matter was not so exhaustively argued as in the present case, and my finding that the testimonial complusion should be in course of a criminal trial requires some modification.
20. Before proceeding further, I might mention that it is admitted on both sides that Shark's skin and velvet, which have been seized are prohibited goods. I must also further mention that Mr. Sen had offered in his petition to produce, in court the relevant invoice and documents in respect of the two bales seized, showing that they have been imported into Pondicherry & the proper import duty including penalty had been paid. He points out that on the relevant date there was no restriction of the importation of these goods from Pondicherry into India.
In fact Mr. Sen produced these documents in court, but after a cursory glance at them, Mr. Kar was instructed to inform me that the Customs authorities would not be satisfied unless custody of these documents, which may not be genuine were made over to the Customs authorities. Mr. Sen's clients were not willing to hand over the documents to the Customs authorities although he had no objection to the documents remaining in Court. In view of this, nothing further could be done.
21. Coming back to Article 20(3) of the Constitution, we find that the words are 'accused of any offence'. As I have already stated, the word, 'offence' is to be construed by the General Clauses Act, which defines it as meaning, 'any act or omission made punishable by any law for the time being in force'. I think that this definition is quite consistent with the observation made in 'Maqbool Hussain's case (A) (Supra).
The word 'punishable' has a distinctive meaning and it indicates that the act or omission will entail forfeiture, fine or imprisonment. Anything which is punishable that is to say, any act or omission which entails forfeiture, fine or imprisonment, is an offence, and therefore certainly is of a criminal nature. If we confine ourselves to Section 167(8), we find that the Penalty is confiscation as also payment of a 'Penalty'.
Mr. Sen argues that 'Penalty' is but another name for a fine. Mr. Kar however argues that the Customs Authorities cannot themselves proceed to realise the penalty unless they have custody of the goods (Section 193). He further points out that in such a proceeding the Customs authorities cannot administer oath. It is not necessary however to confine ourselves to Section 167(8), because, as I have shown above, the offences with which the partners of the petitioner firm are accused, consist) of infringements of several Acts, which, if established, may result in proceeding's before a Magistrate, that is to say, a full-fledged criminal trial ending in imprisonment or fine or with both.
22. The position therefore amounts to this. At the moment, under powers conferred by Section 171A, Sea Customs Act, the partners of the petitioner firm have been called upon to appear and produce documents before the Customs authorities, who have accused them of contravention of several statutes. Such evidence might result in a criminal trial being initiated, although at the moment, the authorities are making investigations preliminary to taking such steps.
It must be clearly borne in mind that the proceedings taken are of two kinds. Firstly there is the notice to show cause why proceedings should not be taken under Section 167(8), Sea Customs Act. Secondly there are the notices under Section 171A, Sea Customs Act, to give evidence and produce documents. So far as the first kind of proceeding is concerned, there is no testimonial compulsion. If the petitioner does not show cause or produce his documents, that is his own affair. He has been granted an opportunity to clear himself and it is for him to avail himself of it or not.
But the proceedings under Section 171A, are of a different nature altogether. Here, he is compelled to give evidence and to depose truthfully. He is also compelled to produce any document. In either case, he might incriminate himself. Although such, a proceeding is not in course of a criminal trial, it is obivious that it is preliminary to it. The notices given under Section 171A do not state that the investigation is purely for purposes of the enquiry under Section 167(8).
Upon this point, Mr. Sen has relied on a Supreme Court decision: '(M. P. Sharma v. Satish Chandra' : 1978(2)ELT287(SC) . The facts of that case are shortly as follows: Messrs Dalmia Jain Airways, Ltd. went into liquidation on 13-6-1952. An Investigation into the affairs of the company was ordered by Government, and a report of the Inspector appointed under Section 138, Companies Act, indicated an organised attempt to misappropriate and embezzle the funds of the company.
It was alleged that various offences under the Indian Penal Code had been committed, and the first information report was lodged on 19-11-1953. On the basis thereof, an application was made to the District Magistrate of Delhi under Section 96, Cri. P. C. for the issue of a warrant for the search of documents in the places as per schedule named. The District Magistrate issued a warrant for simultaneous searches at 34 places, and a voluminous mass of records were seized from various places The petitioners made an application before the Supreme Court under Article 32 of the Constitution, praying that the search, warrants may be quashed, and asking for return of the documents. One of the points taken was that the search to obtain documents in regard to any offence amounted to compulsory procurement of incriminating evidence from the accused himself, and constituted a violation of Article 20(3) of the Constitution. Jagannadhadas J. elaborately reviewed the origin and intendment of Article 20(3). reviewing the English and American authorities. He summed up as follows:
'Broadly stated the guarantee in Article 20(3): is against 'testimonial compulsion'. It is suggested that this is confined to oral evidence from a person standing his trial for an offence when called to the witness stand. We can see no reason to confine the content of the Constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantialpurpose and to miss the substance for the sound as stated in certain American decisions.
The phrase used in Article 20(3) is 'to be awitness', A person can 'be a witness' not merely by giving oral evidence, but also by producing documents or making intelligible gestures as in the case of a dumb witness. (See Section 119 of the Evidence Act) or the like. 'To be a witness' is nothing more than 'to furnish evidence' and such evidence can be furnished through the lips or by the production of a thing or of a document or in other modes. So far as the production of documents is concerned, no doubt Section 139 of Evidence Act says that a person producing a document on summons is not a witness.
But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word 'witness', which must be understood in its natural sense, i. e. as referring to a person who furnishes evidence. Indeed, every positive volition or act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of evidence so procured is confined to what transpires at the trial in the Court room.
The phrase used in Article 20(3) is 'to be a wit-ness' and not 'to appear as, witness'. It follows that the protection afforded to an accused in so far as it is related to the phrase 'to be a witness' is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case'.
23. I think that from these observations of the learned Judge the following principles may be adduced :-
(1) That the protection afforded to a person accused of an offence merely in respect of testimonial compulsion in the Court room (Sic) but extends to that which may be obtained from him previously, but which in normal course may result in a prosecution.
(2) It is sufficient if there is a formal accusation relating to the commission of an offence, which in the normal course may result in prosecution.
(3) In this respect, the calling of a person to give evidence and calling upon him to produce documents which may reasonably be need as evidence against him, stand on the same footing.
24. Mr. Kar points out that in the case quoted above there was actually a first information report. In my opinion that is not a fatal objection. The question is whether an accusation has been made that an offence has been committed and whether the investigation may lead to a prosecution for the alleged offence. A formal accusation need not depend upon a F. I. R. being filed. It depends on the facts of each case.
Mr. Sen pertinently points out that the protection against testimonial compulsion is most urgently required not at a trial but at a point of time preceding it. During the course of a trial an accused is under the protection of Court. It is only at a point of time, when the police or other authorities are gathering materials for launching a prosecution, that the accused requires the greatest protection.
Mr. Sen points out that in this particular case it has been definitely stated that his clients have contravened the provisions of the Sea Customs Act, Import and Export (Control) Act and Foreign, Exchange Regulations Act, all of which might entail a prosecution. If his clients are compelled. to give evidence against themselves, and to produce documents, it might incriminate them for purposes of a prosecution which might follow. Why then does Article 20(3) not apply to this case?
Sharma's case (C) (Supra) seems to have laid at rest at least two points, namely, as to whether the Article applies to a stage before the trial, and secondly, as to whether it applies to the production of documents. Mr. Kar has drawn my attention to a decision of this Court, 'Satya Kinkar Roy v. Nikhil Chandra' : AIR1951Cal101 . It was there laid down by Harries, C. J. that the procedure in Sections 94 and 96, Criminal P. C. cannot possibly be said to conflict with any provision making it illegal to compel an accused person to give evidence or answer any questions addressed to him by the Court.
Section 94, Criminal P. O. merely contemplates the compelling of an accused to produce a document for what it is worth. What use will be made of that document and how it will be proved are not matters in which an accused can be compelled to assist, it seems to me that the reasoning of this decision is no longer valid, since the Supreme Court has decided that the production of a document preliminary to a trial (not to speak of compelling an accused to produce a document at the trial) is in the nature of testimonial compulsion which offends against the Provisions of Article 20(3) of the Constitution.
25. I have already mentioned above that there are three notices with which we are concerned in this case. The first notice does not purport to be under Section 171A, Sea Customs Act. This notice seems to be the usual kind of notice given under Section 167. It usually calls for an explanation, and in this case also called upon the party to produce any evidence that may be in his Possession to snow that the goods were legally imported. There is no question of any compulsion here.
The question of Section 171A arises in respect of the three remaining notices which purport to have been issued under Section 171A. Mr. Sen has not argued that Section 171A is wholly ultra vires. He states that it is ultra vires in so far as it enables a person accused of an offence to be compelled to give evidence against himself either in person or by producing documents. As I have already indicated earlier. Mr. Kar has sought to meet this point by saying that the proceedings before the Customs authorities are purely administrative and, therefore, Article 20(3) is not attracted.
26. In my Opinion, The Argument of Mr. Sen is sound on this point and should be accepted. It will be observed that under Section 171A, Sea Customs Act, the enquiry has been expressly declared to be a judicial proceeding within the meaning of Sections 193 and 228, Penal Code. Also it lays down that a person sumoned shall be bound to state the truth upon any subject respecting which he is examined, or make statements and produce such documents and other thins as he may be require to do.
Mr. Kar points out that in such proceedings the customs officers have not the power to administer oath. In view, however, of the provisions or Section 171A, this does not seem to be of much consequence. The proceedings are in the nature of judicial proceedings and the examination is in the nature of depositions before a Court. It may be that at that stage, it cannot be characterised as a full-fledged criminal trial.
It may further be that in respect of offences which are punishable by fine or imprisonment, the authorities would have to lodge a complaint before a Magistrate, it is, however, clear from Sharma's case (C) (Supra) that Article 20(3) is not merely applicable to a criminal trial in Court. It applies to proceedings which may lead to such a trial. In this particular case the partners of the petitioner firm have been accused of a violation of the Sea Customs Act, the Import and Export (Control) Act, 1947, and the Foreign Exchange Regulations Act. Such violations may amount to the commission of offences which are punishable by fine and imprisonment.
If the partners of the petitioner firm are compelled to give evidence against themselves at this stage and/or to produce documents under compulsion, I do not see how it can be said that Article 20(3) is not attracted. Supposing if such evidence tends to prove that offences have been committed under the said Acts, it is too much to expect that the authorities would not forthwith proceed to en-force the remedy given under the relative statutes, and initiate fullfledged criminal proceedings.
Mr. Kar has strongly argued that without these powers it would be impossible to bring smugglers to book. It would not be proper for me to go into, the policy which has impelled the framers of the Constitution to grant to citizens a right under Article 20(3). The historical necessity for it has been lucidly set out in the Supreme Court Judgment by Jagannadhadas J., cited above.
Since, however, there is such a right, I do not see how a person can be called upon to give evidence against himself and/or to produce documents which might incriminate him, when he has been accused of having violated the provisions of certain statutes, the violation of which is punishable with fine and imprisonment. The first notice dated 19-5-1955 under Section 167, Sea Customs Act, is on a different footing. Here the authorities contemplate action under Section 167(8) and (39).
The person to whom the notice has been addressed is being given an opportunity of explaining the charges made therein and produce documents which might exonerate him. He is not bound to do, as he is under Section 171A. In my opinion, the provision of Section 171A in so far as it enables the authorities to compel a person accused of an offence to give evidence against himself and/or to produce documents for that purpose, offends against Article 20(3) of the Constitution and is bad. This, therefore invalidates the three notices issued respentively on the 19th May and the 23rd May 1955, by D. C. Banerjee and the notice dated the 20th May, 1955, issued by J. Smith.
27. The next point is with regard to the seizure of the goods and documents. These stand on a different footing and must be treated separately. I shall firstly deal with the goods. The power to issue search warrants is to be found in Section 172, Sea Customs Act. A Customs Collector has under this section to make an application before a Magistrate, stating his belief that dutable or prohibited goods are secreted in any place within the local limits of the jurisdiction of such a Magistrate.
The Magistrate then issues a warrant to search for such goods. Such search warrants are to be executed in the same manner and have the same effect as a search warrant issued under the law relating to criminal procedure. Much was said before me as to the provisions of Chapter 7 of the Criminal Procedure Code relating to search warrants. For example, Mr. Sen argued that a search warrant was not issued under Section 96, Cri. P. C. in a general form but that a warrant in a general form is only issued under Section 98, in case of stolen property.
Reference was made to the English case of 'Entick v. Carrington 19, Howell's State Trials. 1030 (E)', I do not think that it is relevant to go into the nature of the search warrants issued or which can be issued under Section 96 or 98. The search warrant is issued not under the Criminal Procedure Code but under Section 172, Sea Customs Act. It is merely executed in such manner as the Criminal Procedure Code provides.
Section 96 of the Code speaks about an inspection but does not mention anything about seiaure. But the provisions of Sections 101 to 105 plainly show that seizure is implied. Under Section 555 of the Code, the forms set forth in the Fifth Schedule 'with such variation as the circumstances of each case require' are to be used for purposes therein mentioned. The form of search warrant is to be found in Schedule V, Forma Nos. VIII and IX.
Form No. VIII relates to Section 96 i. e. the search for specified articles, whereas Form No. IX is under Section 98 and is for general search for stolen property. In either case the forms contain a direction, that the articles seized must forthwith be brought to Court. In a search warrant under Section 172, Sea Customs Act, it would not be necessary to produce the things in Court, because at that stage, proceedings would not be pending therein. The form of the warrant must, therefore, be suit-ably modified so as to authorise the Sea Customs authorities to seize the articles and take possession thereof.
Unfortunately, in the warrant issued as set out above, there is no such direction. Mr. Sen therefore argues that the Sea Customs authorities were strictly bound. by the warrant and the Magistrate has not conferred upon them the power to seize the articles. The articles, i.e.., the two bundles or shark's skin and velvet, as also the files, were undoubtedly seized by virtue of the warrant, as the return endorsed on the back of the warrant itself shows.
Although there is this apparent shortcoming in the warrant, I do not think that the seizure has been unlawful. I have already pointed out that under Section 96 of the Code, seizure is not mentioned, but, nevertheless, it cannot be said that the Code contemplated mere search without seizure, because that would be meaningless. In my opinion, seizure is implied in a search made under a search warrant.
In a search warrant issued under Section 172, Sea Customs Act. what is contemplated is search and secure by the Customs authorities, who are armed with such warrant. It is in aid of the preventive action contemplated by the Sea Customs Act to check violation of the said Act and the avoidance of payment of the revenue. It clearly contemplates that the Sea Customs authorities should be enabled to search for dutiable or phohibited goods which are secreted in any place. It is obvious that in most cases this will be a general search and would be in the nature of proceeding s under Section 98 of the Code applicable to stolen goods.
If seizure is implied in such search, then obviously it contemplates that the Sea Customs authorities should take custody of the offending articles if found on search. There would be no point in producing them before a Magistrate. Mr. Kar has also argued that even if it is held that there was some defect in the warrant which did not include the power of seizure of the goods, the customs authorities had clear power under Section 178, Sea Customs Act, to seize the goods and, therefore, this Court should not make an order upon the authorities to undo a thing which can be supported by a power granted under the statute.
As regards Section 178, Mr. Sen points out that in fact, action had not been taken under Section 178. The return to the warrant shows that action was taken under Section 172. Further, he says that Section 178 itself provides a restriction. The only things that can be seized under that section are things which are 'liable to confiscation' under the Act. He points out that in the affidavits filed, nowhere is it stated that the two bundles seized are liable to confiscation.
In the lengthy affidavit of Mr. Srivastava it has not been stated that these bundles were articles which are liable to confiscation. Mr. Sen argues that Section 178 lays down an objective condition. In -- 'Province of Bombay v. Khushaldas K. Advani' : [1950]1SCR621 , Das, J. has laid down what was the duty of administrative officers when there was an objective test to be satisfied. At that stage it was not necessary that the officer should conduct an enquiry in the presence of all parties concerned to arrive at a decision whether the objective condition had been satisfied.
It was sufficient if he applies his mind and bona fide came to the conclusion that the objective condition existed. Mr. Sen argues that this rest has not been satisfied in this case. There is nothing in the affidavit of Mr. Srivastava to show that the Rummaging Officer or the Collector of Customs had applied their minds and come to that conclusion.
28. The case of the documents stands on a slightly different footing. Previously Section 172, Sea Customs Act, did not provide for search 'warrants being issued in respect of documents. This has now been rectified by Section 13, Sea Customs (Amendment) Act, 1955. By this amendment, search warrants may now be issued in relation to documents relating to such goods. While, however, Section 172 has been amended, there has been no amendment to Section 173. Mr. Kar has not argued that documents can be seized under Section 178.
29. In my opinion, a search warrant Issued for the search of offending goods and documents implies the power of seizure thereof. In future, Magistrates in issuing warrants under Section 172, Sea Customs Act, might well insert therein this 1 direction as to seizure by the Customs authorities. In my opinion, however, the absence of such a specific direction has not made the seizure by the customs authorities illegal.
To search for offending goods or documents would be meaningless if there was no power to inspect the same or seize any goods which upon inspection were found to be prohibited goods or goods which had avoided payment of duty, as also documents in relation to them. In my opinion, to hold otherwise would be to nullify the object with which the legislation has been enacted. In view of this, it is unnecessary to deal with Section 178 of the Act, but I might make a few observations therein.
Although the affidavit of Mr. Srivastava is not very satisfactory on this point, it must be remembered that Ex. D clearly says that the customs preventive officers had come to the conclusion that the two bundles seized were prohibited goods and/or goods which had avoided duty. So far as the goods are concerned, Section 178 therefore applies. In any event it would be meaningless to direct the respondents to restore the goods which they could immediately seize once again under that very section.
30. For the reasons abovementioned, this application succeeds in part only. The rule is therefore made absolute to this extent that a writ of mandamus is issued directing the respondents to forbear from giving effect to or take steps under the following notices:
(1) Notice dated 19-5-1955, issued by D. G. Banerjee to Sree S. N. Jajodia, partner of Messrs Calcutta Motor and Cycle Co., being Ex. A to the petition;
(2) Notice dated 20-5-1955, issued by J. Smith to the partners of the petitioner firm, being Ex. B to the petition; and
(3) Notice dated 23-5-1955, issued by D. G. Banerjee to the petitioner firm, being annexure 'A' to the affidavit of Mannalal Jajodia affirmed on 23-5-1955.
A writ in the nature of Certiorari is also issued quashing the orders contained in the said notices.
31. The rest of the rule is discharged. All interim orders are vacated, except the interim orders in respect of the three notices abovementioned, which had merged in this final order.
32. There will be no order as to costs.