Part II. Customs Enquiries and Criminal Jurisprudence: Admissibility of Statements under Section 108

This is Part II of the article.*****

IV. Evolution of separation of powers and developments in Customs Act

The Criminal Procedure Code of 1898 entrenched magistrates dual executive-judicial role, reflecting colonial priorities of administrative control over judicial independence. To address this, Dr. B.R. Ambedkar introduced Article 50 (initially Article 39-A) during the Constituent Assembly debates, mandating separation of the judiciary from the executive in public services. This constitutional principle aligns with the doctrine of separation of powers—part of the Constitution’s basic structure—even though not explicitly stated. The 1973 CrPC, replacing jury trials and older colonial provisions, reinforced judicial independence and outlined clear procedures for investigation, trial, and safeguards against misuse of power. Article 50 became critical in ensuring impartial justice. The CrPC, effective from April 1, 1974, serves as the procedural backbone of India’s criminal justice system, ensuring balance between law enforcement powers and individual rights. With the rise in customs and excise litigation in the 1970s, the need for specialized and independent appellate bodies emerged. The 47th Law Commission Report (1973) recommended a uniform appellate system with independent revision authorities, leading to the establishment of Tribunals as part of the judicial framework, moving appeal and revision powers away from the executive to ensure fair adjudication.

With great respect, it is submitted that issue whether the retracted confessional statement before Custom Officer is inadmissible in evidence under Section 24 of the Evidence Act and what is the scope for its consideration has been examined in many cases. Section 24 of IEA deals with the Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. It has been held that If a Customs Officer takes evidence under Section 171A and (4) of Sea Customs Act, there is an admission of guilt, it will be too much to say that that statement is a confession to a police officer as a police officer never acts judicially and no proceeding before him is deemed to be a judicial proceeding for the purpose of sub-sections 193 and 228 of the Indian Penal Code or for any other purpose. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in BHAGWAN SINGH Versus STATE OF PUNJAB - 1952 (4) TMI 34 - Supreme Court.The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the Court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the Court for ordering conviction. However, rule of prudence and practice does require that the Court seeks corroboration of the retracted confession from other evidence. The confession must be one inculpating the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true. 

However, with great respect, it is submitted that many of the case laws cited to buttress the argument that whatever has been admitted before Custom Officer need not be proved; they are deemed judicial proceedings etc etc pertain to periods predating enactment of Customs Act, 1962. In majority of cases, amended statutory provision, especially Section 138B which was inserted in 1973 and amended CRPC Code of 1973 have not even been discussed or appreciated. Recently, Constitutional Courts have laid down clear law after appreciating Section 138B in adjudication proceedings and need for applicability of safeguards provided in CRPC to Customs arrests proceedings.

Attention is invited to larger bench decision of RADHIKA AGARWAL Versus UNION OF INDIA AND OTHERS 2025 (2) TMI 1162 - Supreme Court (LB). This judgment plays an important role for aligning and clarifying the procedures for arrest under the Customs and GST in Acts.The Supreme Court in ARVIND KEJRIWAL VERSUS DIRECTORATE OF ENFORCEMENT - 2024 (7) TMI 760 - SUPREME COURT emphasized the following conditions before making an arrest, namely, Material must be in possession of the customs officer; 'Reasons to believe' must be recorded in writing before arrest and arrest under Customs and GST Act should not be on mere suspicion; the person arrested must be informed of the grounds of arrest immediately.; the decision to arrest must be based on admissible evidence, not arbitrary discretion. Points to be noted while making an arrest under this section are as follows, namely, that person being “guilty of an offence” and a person “committing an offence” are both same and is used interchangeably; that Section 104(1) does not explicitly require a customs officer to have “material in their possession” does not imply that a customs officer can conclude that an offence has been committed out of thin air or mere suspicion; that the framework of the Customs Act, which explicitly classifies offences into bailable and non-bailable, as well as cognizable and non-cognizable, the “reasons to believe” must reflect these classifications when justifying an arrest. The reasoning must weigh in why an arrest is being made in a specific case, particularly given the specific severity assigned to the offence by the legislature.

The rights of the arrestee which should fundamentally be provided while making an arrest either under Customs or GST Acts are held by Apex Court are as follows, Right to be informed of the grounds of arrest (Article 22(1) of the Constitution, Section 50 of CrPC); Right to meet an advocate during interrogation but not throughout; Right to have a relative or friend informed of the arrest (Section 50A of CrPC); Right to reasonable care of health and safety while in custody (Section 55A of CrPC). What safeguards must be followed to ensure arrests under these Acts do not violate personal liberty, including the requirement of 'reasons to believe,' informing grounds of arrest, and preventing coercion for tax payments have been made mandatory by Apex Court. The Court mandated strict compliance with safeguards, Officers must record 'reasons to believe' based on explicit, credible material (Paras 24, 59); Arrestees must be informed of grounds of arrest in writing, per Article 22(1) and D.K. Basu guidelines (Paras 25-26, 62); Customs officers, though not police officers, must maintain records akin to case diaries (Paras 19, 23); Arrested persons have the right to meet an advocate during interrogation, within visual but not hearing distance (Paras 26-27).

While this judgment serves as a landmark ruling in streamlining arrest procedures under the Customs and GST Acts, reinforcing legal safeguards and upholding the constitutional rights of the arrestee. However, one issue that begs answer is that whether arrest proceedings can be recorded by Commissioner based merely on a statement recorded under Section 108 before Gazetted Officer. It must be noticed that designated officer is required to arrive at a conclusion of guilt based on the “material” examined and such guilt can only be based on admissible evidence. Question that needs judicial scrutiny is that whether sole reliance on untested statement can be made to record arrest in light of Section 138B.Guilt can only be established on admissible evidence to be led before quasi judicial authority and cannot be based on inadmissible evidence. In this regard, Para 34 of larger bench decision of Apex Court is worth reproducing :-

“34. On the nature of “material” examined by the DoE, Arvind Kejriwal (supra) states that such “material” must be admissible before a court of law. This is because the designated officer is required to arrive at a conclusion of guilt based on the “material” examined and such guilt can only be based on admissible evidence. The relevant portion reads:

47. DoE has drawn our attention to the use of the expression ‘material in possession’ in Section 19(1) of the PML Act instead of ‘evidence in possession’. Though etymologically correct, this argument overlooks the requirement that the designated officer should and must, based on the material, reach and form an opinion that the arrestee is guilty of the offence under the PML Act. Guilt can only be established on admissible evidence to be led before the court, and cannot be based on inadmissible evidence. While there is an element of hypothesis, as oral evidence has not been led and the documents are to be proven, the decision to arrest should be rational, fair and as per law. Power to arrest under Section 19(1) is not for the purpose of investigation. Arrest can and should wait, and the power in terms of Section 19(1) of the PML Act can be exercised only when the material with the designated officer enables them to form an opinion, by recording reasons in writing that the arrestee is guilty.””

The investigating officer is also required to look at the whole material and cannot ignore material that exonerates the arrestee. A wrong application of law or arbitrary exercise of duty by the designated officer can lead to illegality in the process. The court can exercise judicial review to strike down such a decision.

In view of above discussion, let’s examine the question as to Whether, in light of the right against self-incrimination under Article 20(3) of the Constitution, a statement recorded under Section 108 of the Customs Act before a Gazetted Officer of Customs can be relied upon by another authority, such as the Commissioner, as a relevant piece of evidence to form a 'reason to believe' that a person has committed an offence or is guilty under the Customs Act, particularly when a copy of such statement is not furnished to the arrested person at the time of arrest. Second issue is whether a person is entitled to receive a copy of the statement recorded in course of inquiry in such deemed judicial proceedings under the Customs Act, especially when such statement is relied upon by the Commissioner to form a 'reason to believe' that the person is guilty of an offence under the Act.

It has been practice that statements are recorded to extract confessions. In most of the reason to believe recorded by officer authorizing the arrest, i.e. the Commissioner, it is mentioned that a person has admitted to have done xyz contraventions knowingly and therefore is placed under arrest. In cases, even valuation and classification is done based on confessionary statements extracted from person. Normally, reason to believe is often full of confessions/admissions only.

Apex Court has held that a statement recorded by Customs Officers under Section 108 of the Customs Act is admissible in evidence. However, incase statement is being used in subsequent proceedings; officer should ensure that said statement meets judicial standards. The Authority, i.e. Commissioner has to test whether the inculpating portions were made voluntarily or whether it is vitiated on account of any of the premises envisaged in Section 24 of the Evidence Act. Authority has to test whether the statement meets the test of Section 138B. It must be noted that statement does not have value of confessionary statements since conditions meant for same in BNSS are not followed nor Gazetted Officers recording statements are explicitly vested with powers of Civil Court.

It is true that under Article 20(3) of the Constitution of India no person can be compelled to give evidence against himself. The powers under Section 108 of the Customs Act, 1962 are subject to the aforesaid constitutional bar and it cannot be said that the Customs authorities have any right to compel any person to give evidence against him. It would be always open for summoned person to decline to answer to any question which may incriminate him and which violates the provisions of Art. 20(3) of the Constitution of India. He has always got that right and he can exercise such right at all time during the enquiry by the customs authorities. However, it must be noted that nothing in most of the statements recorded under Section 108 suggests that person has been cautioned and warned against self incrimination and right under Section 20 of Constitution. Despite clear statutory provisions of informing grounds of arrest, CBIC has issued guidelines mandating the communication in writing only after decisions of Apex Courts. Earlier, despite statutory provisions, it was contended by revenue that grounds have been VERBALLY explained to arrested person. Apex Court rejected such argument. Issue stands settled as far as issuance of grounds of arrest is considered. On similar lines, Government may think of framing relevant guidelines to sensitize summoning officers and those authorizing arrests under Section 104 about specific provisions like Section 138B and Section 138C and Article 20 of Constitution.

Apex Court has held that a customs officer is not a judicial tribunal and that a proceeding before him is not a prosecution or civil court proceedings perse. It cannot be denied that the relevant provisions of the Customs Act like power of arrest are indeed penal in character. The appropriate customs authority is empowered to make an inquiry in respect of an offence alleged to have been committed by a person under the said Acts, summon and examine witnesses, decide whether an offence is committed, make an order of confiscation of the goods in respect of which the offence is committed and impose penalty on the person concerned. To such a situation, though the provisions of the Code of Criminal Procedure or the Evidence Act may not apply except in so far as they are statutorily made applicable, the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply. If so, the burden of proof is on the customs authorities and they have to bring home the guilt to the person alleged to have committed a particular offence under the said Acts by adducing satisfactory evidence and not just confessional statements without even cautioning person.

The need for observance of procedural safeguards such as Article 20 and Section 138B, particularly in cases of deprivation of life and liberty is of prime importance to the body politic. It is, therefore, imperative that the custom authority must 'apprise' a summoned person of his constitutional right under Article 20 to not self incriminate himself and provide him a copy of statement, incase, same is used as evidence for recording arrest. If reasons to believe and grounds of arrest rely on statement which is harped as confessional statement in subsequent arrest proceedings, copy of same has to be invariably supplied. The right to challenge arrest based on confessionary statement or even file retraction subsequent to recording of confessionary statement is of  little avail if the detenu is not informed of his right to not self incriminate during recording of statement and not even supplied a copy of same. Authorities warrant that Retraction has to be specific. However, vague retraction without access to copy of statement becomes meaningless. There is need for detailed guidelines for retraction procedure incase a copy of confessionary statement has not been supplied to person and relied upon to curb his liberty. 

As per larger bench decision of Apex Court, Arrest cannot be recorded based on inadmissible evidences. Statements recorded under Section 108 are not deemed confessairy statements as provided in BNSS. Self incriminating statements in cases where person has not been informed about his constitutional right against self incrimination are meaningless. In case, statement is relied for recording arrest, a copy of same or atleast a part of it should be provided to person immediately.

Next issue is whether a statement recorded under Section 108 of the Customs Act during a particular inquiry can be treated as a confessional statement in subsequent proceedings, and whether such proceedings are deemed to be judicial proceedings for the purpose of all other actions under the Customs Act. As discussed earlier, statement recorded under Section 108 is not a confessionary statement given before Court and incase it is used in subsequent proceedings it has to be made relevant in light of Section 138B. Whether statements recorded under Section 108 of the Customs Act, without administering the caution or warning contemplated under Section 183 of the BNSS, are admissible and relevant for the purpose of effecting arrest under the Customs Act, particularly where the Customs Officer fails to inform the person that they are not bound to make a confession and that any such statement may be used as evidence against them.

With the utmost respect, it is submitted that the revenue’s reliance on decisions such as K.I. Pavunny v. Assistant Collector (Preventive), Kanungo & Co. v. Collector of Customs, and Collector of Customs v. D. Bhoormall, may not advance the proposition that statements recorded under Section 108 of the Customs Act are, by themselves, sufficient for the purposes of arrest, imposition of tax liabilities by adjudicating authorities, or initiation of prosecution proceedings. This submission is made for the following reasons, firstly, the principal issue examined in the aforementioned cases was whether confessional statements, allegedly made under threat, inducement, or coercion, were rendered inadmissible under Section 24 of the Indian Evidence Act, 1872. The judicial dicta in these cases primarily rest upon the following settled legal principles:

• That the person making a statement under Section 108 is not an accused at the time of recording such a statement; he assumes the status of an accused only upon the filing of a complaint and issuance of summons by a competent court;
• That although Customs Officers are deemed to be 'persons in authority' for the purpose of Section 24 of the Evidence Act, their statements cannot automatically be characterized as having been obtained under coercion, inducement, or promise;
• That Customs Officers do not qualify as 'police officers' within the meaning of Section 25 of the Evidence Act, and therefore, the bar on admissibility applicable to police confessions does not extend to them.

In K.I. Pavunny (supra), the Hon’ble Supreme Court held that evidence collected under Section 108 is primarily intended for confiscation proceedings and for the imposition of penalties. With due deference, it is respectfully submitted that the issue of arrest on the basis of confessional statements was not directly in issue before Court nor was adjudicated upon in that matter.

Moreover, while the Apex Court did observe that such statements may be admissible in prosecution proceedings initiated under Section 135 of the Customs Act or other statutes, it must be emphasized that statements under Section 108 are also frequently relied upon as the basis for arrest, particularly in the formation of the 'reason to believe' required under Section 104 of the Customs Act and GROUNDS of ARREST. Indeed, it is a matter of practice that in a significant number of cases, confessional statements forms the basis for recording many arrests, and is also reproduced extensively in the grounds of arrest. The formation of a valid 'reason to believe' by the competent authority is often premised solely upon such statements.

It is now a settled law that decisions relating to arrest or prosecution or adjudication must rest upon admissible evidence. The Hon’ble Supreme Court, in a number of authoritative pronouncements, has unequivocally held that a conclusion as to guilt—or even the reason to  believe that a person has committed an offence—must be founded on admissible and credible evidence. It is impermissible to predicate such a belief on inadmissible or uncorroborated material.

It is further submitted that decisions such as Kanungo & Co. and D. Bhoormall (supra) did not involve the question of admissibility or relevancy of statements in the context of arrest or adjudication. As such, reliance upon these decisions for the present issue may not be apposite.

It is pertinent to note that the Customs statute has undergone substantial amendments over the years. Under the erstwhile Sea Customs Act, arrests could be effected based on a 'reason to doubt'. Section 173 provides that any person reasonably suspected of committing an offence under the Sea Customs Act may be arrested without a warrant by a Customs Officer or other person employed for prevention of smuggling.The Sea Customs Act, 1878 was a colonial-era law, simpler but broader in discretionary powers, with less accountability. The Customs Act, 1962 modernized the framework post-Independence, introducing structured enforcement, safeguards. Power of arrest became more centralized and regulated in the 1962 Act — now requiring higher-rank officer authorization and differentiating offences by gravity.

With subsequent amendments, especially those made in 1973 and 1985, it got more aligned with constitutional protections, basic structure doctrines and Criminal Procedure Code 1973. Under the prevailing Customs Act, 1962, the statutory threshold for arrest has been elevated to the formation of a 'reason to believe', as envisaged under Section 104. The Larger Bench of the Hon’ble Supreme Court has laid down the contours of what constitutes a valid 'reason to believe', and has clarified that the arresting authority must be satisfied that the person has committed an offence, and that such satisfaction must not be based on inadmissible or extra-legal material. The Customs (Amendment) Act, 1973, while considerably enhancing the powers of Customs Officers—particularly in the recording of statements—also incorporated necessary safeguards, notably Section 138B, to prevent abuse of these powers and to ensure procedural fairness.

A catena of decisions by constitutional courts, including the Larger Bench of the Hon’ble Supreme Court in RADHIKA AGARWAL Versus UNION OF INDIA AND OTHERS - 2025 (2) TMI 1162 - Supreme Court (LB), have emphasized the application of procedural safeguards under the Code of Criminal Procedure, 1973, to proceedings under the Customs Act, especially in relation to search, seizure, summons, and arrest. These decisions reflect the judicial commitment to harmonise statutory powers with constitutional protections, and to prevent arbitrary or unlawful deprivation of personal liberty.

Conclusion

In light of the evolving statutory framework and the constitutional emphasis on procedural fairness, it is submitted that the reliance on confessional statements recorded under Section 108 of the Customs Act, as the basis for arrest, warrants careful judicial scrutiny. Earlier decisions did not directly address the admissibility and relevancy of such statements in the context of arrest powers under Section 104, nor did they account for subsequent legislative developments such as the insertion of Section 138B in 1973 or the applicability of safeguards under the CrPC, 1973. With the advent of the BNSS and authoritative guidance from the Larger Bench in Union of India v. Radhika Agarwal, it is imperative to re-examine the practice of basing arrests solely on uncorroborated confessions, to ensure alignment with constitutional mandates and to uphold the rule of law.