The principle of protection against self-incrimination is a fundamental principle of the British system of criminal jurisprudence. From there the principle find its place in all civilized legal system following common law jurisprudence. It has been adopted by the American system by the Fifth Amendment of the American Constitution, which provides that no person shall be compelled in any case to be a witness against himself. Thus the protection in American Constitution is available to all persons and in every proceeding, civil or criminal and the Courts have given a very wide interpretation to the protection.
Under Indian law the principle have been given Constitutional status by incorporating it under Article 20(3) of the Constitution. Various Statutory provisions like Section 161 of the Code of Criminal Procedure, 1973, Section 132 of the Indian Evidence Act, 1872 etc. also incorporate the same principle.
India is a signatory3 of the International Covenant on Protection of Civil and Political Liberties, 1966. Article 14 of the convention gives minimum guarantees available to all persons in a criminal trial. Article 14(3)(g) of the convention gives right against self-incrimination to all persons.
However, Section 14 of the Central Excise Act1944 and Section 108 of the Customs Act, 1962 make a provision that a person is bound to state the truth. These Sections are silent on the principles of protection against self-incrimination. This paper seeks to examine the relationship of the Sections imposing a duty on a person to state the truth and the fundamental principle of protection against self-incrimination.
In this paper the author has treated the law “as it ought to be” rather than “as it is”. Further in view of the author a legal position is never settled, unless until it is in harmony with the reason. The author looks a law as a dictate of reason. Reason is the very life of law, for when the reason of law once ceases, the law itself generally ceases, because reason is the foundation of all our laws.4 Rightly said, reasons are the heart and soul of law.
CONSTITUTIONAL PROTECTION AGAINST SELF-INCRIMINATION:
Article 20(3) of the Constitution of India reads as,
“ No person accused of any offence shall be compelled to be a witness against himself.”
Thus the protection under Indian Constitution is available only to a person accused of an offence. The Supreme Court has given a wide definition to the term “accused”. It is not only those persons against whom prosecution have been started, but includes those persons also against whom FIR has been recorded and investigation has been initiated.5 Even when a person name has not been mentioned in the FIR, if there are oral or circumstantial evidence pointing towards guilt of a person, the person is an accused within the meaning of Article 20(3) of the Constitution.6The supreme Court went on saying that the expression “accused of any offence” cannot be interpreted in a restrictive manner and includes even a suspect of an offence.7
The protection given under Article 20(3) is in the nature of privilege to be exercised by a person accused of any offence. Accused includes a suspect or a person against whom there are some oral or circumstantial evidence pointing towards guilt. Thus as per Constitutional mandate, when a person is interrogated and during interrogation he perceives that he is being suspected for commission of some offence or when he is treated as an accused or suspect by the interrogating agency, he should have liberty to claim the privilege granted to him under Article 20(3) of the Constitution.
This Article gives only a privilege.8 Further it can be argued that the protection against self-incrimination is available to all persons. Various Fundamental Rights enumerated in Part-III of the Constitution are not water-tight compartments.9 Article 20 of the Constitution has to be read together with Article 21 of the Constitution which guarantees Right to life and liberty. Article 20(3) gives this right to the accused persons solely, merely because in case of accused persons, possibility of violation is perceived by the makers of the Constitution. A person who is not an accused of any offence or against whom there is no suspicion or against whom there is no oral or documentary evidence, the privilege of Article 20(3) is not useful to him. Further even when such person is called to give his evidence and the moment a question is asked from him, which gives the impression that he is a suspect, he has the privilege to claim protection under Article 20(3). Thus Article 20 is merely a subset of Article 21. All the rights and privileges given under Article 20 is available under Article 21, Article 20 gives additional protection to these rights in situations when there is a possibility of its violation.
The next question which comes that whether the violation of Customs Law or Central Excise Law are “offences” within the meaning of Article 20(3) of the Constitution. These laws provide for penalty, confiscation of goods and imprisonment for violation of law. Offences means an act or omission punishable by law.10 Offence is an act committed against law, or omitted where the law requires it, and punishable by it.11 By the word offence under Article 20(1) of the Constitution of India, it means something which is a violation of law in force and for the violation for which the law prescribes a penalty.12 Even breaches of Customs Law entailing a monetary penalty or forfeiture of goods concerned would be an offence contemplated by Article 20(3) of the Constitution.13 Thus under Indian law the term “offence” has been given a wide definition and violation of Customs Law or Central Excise Law is offences within the meaning of the Article 20(3) of the Constitution.
DUTY TO SPEAK THE TRUTH:
Section 108(3) of the Customs Act, 1962 and Section 14(2) of the Central Excise Act, 1944 reads as,
“ All persons so summoned shall be bound to attend, either in person or by an authorized agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting with they are examined or to make statements or to produce such documents and other things as may be required.”
The language used in these sections are very wide. But they have to be read subject to the provisions of the Constitution. If they are to given their natural meaning, the Sections will become unconstitutional and void. In Sudhir Gulati v/s UOI 14 the Delhi High Court declared that when a person is an accused of an offence within the meaning of Article 20(3) of the Constitution of India, then also he is bound to appear before the concerned officer under Section 108 of the Customs Act to answer such questions which do not tend to incriminate him. Thus a person within the meaning of Article 20(3) can claim protection under the Article even when he is summoned and his statement recorded under these sections and may refuse to answer questions, which tend to incriminate. Certainly it is the person summoned who will decide which answer is having a tendency to incriminate.
Under the Customs Act the Courts have given a very narrow definition of accused persons. In Veera Ibrahim v/s State of Maharashtra15 the Supreme Court held,
“A person becomes accused only when the complaint, regarding commission of the offence under Section 135, is filed against him by the Assistant Collector of Customs. But a person arrested by a Customs Officer, because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not, when called upon by the Customs Officer to make a statement or to produce a document or thing under Section 108 of the Sea Customs Act, a person accused of an offence because the Customs Officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act with the commission of an offence but to prevent smuggling and to recover duties of customs. Therefore, such statements before the Customs Officer were not to be from a person accused of any offence and hence were not hit by Article 20(3) of the Constitution.”
Similarly in Romesh Chandra Mehata v/s State of West Bengal16 the SC held,
“Guarantee against testimonial compulsion under Article 20(3) of Constitution of India not available to a person suspected of customs duty evasion and smuggling and in that connection tendering statement before Customs Officer under Section 108 of Customs Act, 1962 – Such person does not stand in the capacity of an accused person at that stage – He becomes an accused person only when a complaint is filed against him before a Magistrate under Section 135 ibid – Section 122 ibid corresponding Sections 9, 14 and 33 of Central Excises and Salt Act, 1944.”
Such definitions of accused person have a restrictive effect on the rights guaranteed under the Constitution of India. Further this results in negation of the right itself. The officers are getting the liberty to examine a person and recording self-incriminatory statements, which shall be admissible as evidence before filing the complaint. On this definition of accused person it can safely be inferred that Article 20(3) has no application in case of offences related to Customs or Central Excise law. In view of this author, certainly this is not the Constitutional mandate of Article 20(3) of the Constitution. When the Constitution has not given any exception to the right or any right to the Parliament to impose restriction, such interpretation doesn’t appear to be in conformity with generally wide interpretation of fundamental rights by the Hon’ble Supreme Court.
This interpretation doesn’t appear to be correct on other grounds also. The Article says “ to be a witness” and not “ to appear as witness”. Thus the protection under Article 20(3) is not merely confines to the Court room but extend to compelled testimony previously obtained from him.17 It may be mentioned that statement recorded under Section 14 of the Central Excise Act and under Section 108 of the Customs Act and admissible as evidence in the Court of law. In Kartar Singh v/s State of Punjab, the Supreme Court declared that everyone has a right against self-incrimination and a right to be silent under Article 20(3) which implies his freedom from police or anybody else. Further the court went on to say that,
“ the acts of the person, of course, is neither negative attitude of silence or submission on his part, nor is there any reason to think that the protection in respect of the evidence procured is confined to what transpires at the trial in the court-room. The phrase used in Article 20(3) is to be a witness and not to appear as a witness. It follows that the protection accorded 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.”
In Kartar Singh (supra), the Supreme Court have given a wide meaning to the Protection against self incrimination. It is a right of everyone and it is a liberty against anybody. Further it relates to testimonial compulsion even previously obtained.
In Nandini Sathapaty v/s P L Dani18, the Supreme Court held that even a suspect is an accused within the meaning of Article 20(3) of the Constitution. Krishna Iyer, J. rules in the case that Article 20(3) ought to extend to police investigation also since enquiries under criminal statutes with quasi-criminal investigations are of an accusatory nature and are sure to end in prosecution, if the offence is grave and the evidence gathered is good. To deny the protection of Art. 20(3) to a suspect because the enquiry is preliminary and may possibly not reach the Court is to erode the substance. Article 20(3) is not confined merely to the court trial. It extends to “any compulsory process of production of evidentiary documents which are reasonably likely to support the case against him. Not only compelled testimony previously obtained is excluded but the preventive blow falls on pre-court testimonial compulsions.
It may be mentioned that the observation of nandini was not followed by the Supreme Court in Poolpandi,19 where the Supreme Court held that,
“Both Mr. Salve and Mr. Lalit strongly relied on the observations in Nandini Satpathy v. Dani (P.L.) and Anr. : 1978 (3) S.C.R. 608, at pages 623, 624, 626-629, 645 and 646. We are afraid, in view of two judgments of the Constitution Bench of this Court in Romesh Chandra Mehta v. State of West Bengal : 1969 (2) S.C.R. 461, and Illias v. Collector of Customs, Madras : 1969 (2) S.C.R. 613 = 1983 (13) E.L.T. 1427 (S.C.), the stand of the appellant cannot be accepted. The learned counsel urged that since Nandini Satpathy’s case was decided later, the observations therein must be given effect to by this Court now. There is no force in this argument.”
Technically the court was right in following the judgments of Constitutional Benches. However, it humbly submitted that the view is erroneous. These judgments are of a time when Gopalan20 was the basis of the interpretation of Fundamental Rights. Those were the times when even the Fundamental Rights were interpreted literally, as a positive law. The situation has changed after Maneka Gandhi and Keshawanand Bharti.
The Court has distinguished between offences under Customs Act and other Acts, which is not contemplated by the Constitution. Administrative inconvenience or implementation of an Act cannot be a good ground for denying a fundamental right conferred by the Part-III of the Constitution. The definition of accused should not be different for offences under Customs Act and other acts. Investigation cannot be differentiated on the ground that whether it is conducted under Customs Act or under the Code of Criminal Procedure. Thus the judgments of Supreme Court which held that in Custom (or Central Excise) proceeding, a person becomes an accused only when a formal complaint is filed against him is not a good law based on reasons, and the author submits, in view of Nandini and Kartar Singh that these judgments needs to be reviewed.
PROTECTION OF THE EVIDENCE ACT, 1872.
In Duncan Agro Industries21 the Supreme Court held that although the statement recorded under Section 108 of the Customs Act is admissible in evidence, the statement has to pass through the test of Section 24 of the Indian Evidence Act. It may be mentioned that protection of Section 24 of the Act is available only to an accused persons. Thus the Court, indirectly accepted that the person giving statement under Section 108 is an accused person while denying the status of accused person under Article 20(3) of the Constitution. In Ghulam Hussain22, the Supreme Court approved Duncan Agro and held that statement recorded under Section 108 of the Customs Act must be scrutinized under Section 24 of the Indian Evidence Act.
Thus the Courts have accepted that if statement recorded has been caused by threat or promise, such statements must not be relied upon. However, giving a warning that the person is bound to state the truth is not a threat within the meaning of Section 24 of the Indian Evidence Act, as has been the settled law. Then the question comes that can a legislation violate the right given under Article 20(3) of the Constitution.
It may further be noted that Section 132 of the Indian Evidence Act gives protection to the witness against self-incrimination. The proviso of Section 132 of the Act reads as, “ Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding…….” While examining the similarity between Section 132 of the Evidence Act and Section 108 of the Customs Act (then Section 171A of the Sea Customs Act, 1878), the Supreme Court held,23
“There is really no substantial difference in the treatment under law between a witness in a judicial proceeding and one who is summoned under Section 171A. Both are compelled to answer questions, the answer of which will incriminate them. Article 20(3) will protect both of them in case they are charged with a criminal offence. There is, no doubt, a difference in method of securing full and true disclosure of facts. That cannot mean there is differentiation.”
CAN A LAW CURTAIL THE FUNDAMENTAL RIGHT?
Article 13(2) of the Constitution of India reads as,
“ The state shall not make any law which takes away or abridges the rights conferred by this part (Fundamental Rights) and any law made in contravention of this clause shall, to the extend of the contravention, be void.”
Similarly Article 13(1) declares all pre-Constitutional law, inconsistent with the Fundamental Rights void to the extent of inconsistency.
Thus, not merely an executive action but even a legislation cannot violate a fundamental right. Thus either section 108 of the Customs Act or Section 14 of the Central Excise Act must be construed in a manner not inconsistent with the Article 20(3) of the Constitution. Any inconsistency will make the law void in the eyes of the law.
It means that a Customs or a Central Excise officer has a right to summon a person and the person is bound to state the truth. However, if the truth is self-incriminatory the person summoned can exercise privilege granted under Article 20(3) of the Constitution. A self-incriminatory statement is not admissible in any criminal or even a quasi-criminal proceeding, following the wide definition of offence within the meaning of the Article 20(3) of the Constitution and the term “to be a witness” as opposed to “to appear as witness”.
CAN A PERSON WAIVE THE PRIVILEGE GIVEN UNDER ARTICLE 20(3)?
It is a settled position of law that a Fundamental Right cannot be waived.24 Nevertheless the right given under Article 20(3) of the Constitution is in the nature of a privilege and person holding this privilege may refuse to exercise this privilege. The right is against “compulsion to testify”, and not against “testify” as it is. Thus a person may testify against himself.
However the waiver of privilege must be a real and substantial waiver. If a person does not know that he has this privilege and if out of ignorance he fails to exercise this privilege, it is not a real and substantial waiver. In that case the statement is hit by Article 20(3) of the Constitution whenever it is brought before adjudicating authority or Court. Further when a person has this privilege, and the officer recording his statement gives the legal threat of Section 108, which is not applicable when Article 20(3) is applicable; this amounts to compulsion and the statement is hit by Article 20(3) and not applicable.
The author is of the view that Custom and Central Excise authorities must inform the person summoned that he has this protection under Article 20(3) of the Constitution, when the situation so requires. In Nandini, followed in Kartar Singh, the Supreme Court has given direction to the police that they should bring this right to the notice of the person whose statement they are recording and they should take a written acknowledgement. There is no reason as to why this direction should not be applicable in case of Customs and Central Excise.
The exiting position of law as declared by the Hon’ble Supreme Court with respect to applicability of Article 20(3) to customs and Central Excise proceeding is erroneous. It doesn’t reflect the soul of the Constitutional provision or the guarantees contained in international conventions. It is humbly submitted that the Hon’ble Supreme Court should review these judgments. The Hon’ble Supreme Court observed in Maneka Ghandhi,25
“The attempt of the Court should be to expand the reach and ambit of the Fundamental rights rather than to attenuate their meaning and content by a process of judicial interpretation.”
Bhagawati, Justice observed,26
“It must be remembered that Fundamental Rights are constitutional guarantee given to the people of India and are not merely paper hopes or fleeting promises and so long as they find a place in the Constitution, they shouldn’t be allowed to be emasculated in their application by a narrow or constricted judicial interpretation.”
In view of these observation the author is of the view that the judgments placing a restricted meaning to the Article 20(3) should be reviewed and the Article should be given a free play in all sphere of people’s life, including the sphere of Customs and Central Excise law.
Written by:- Advocate Rajesh Kumar. The author can be contacted on The author can be contacted on [email protected] , Web: www.rajeshkumar.co.in