Customs Act, 1962 Section 138b — Relevancy of statements under certain circumstances
Customs Act, 1962 · Relevancy of statements under certain circumstances
Plain-English Explanation
Overview
Section 138B of the Customs Act, 1962 deals with the relevancy of statements made before customs officers during investigations. It essentially allows such statements to be used as evidence in court or other proceedings under certain specific circumstances, adding weight to their evidentiary value.
Who Does This Apply To?
This section applies to:
- Individuals who have made a statement to a gazetted customs officer during an inquiry or proceeding under the Customs Act.
- Customs officers, specifically gazetted officers, who are conducting inquiries or proceedings.
- Courts or other authorities before which proceedings under the Customs Act are held.
- Businesses involved in import/export activities.
How It Works
Here's the breakdown of how Section 138B operates:
- Statement Requirements: A statement must be made and signed by a person before a gazetted officer of customs during the course of an inquiry or proceeding under the Customs Act.
- Relevancy for Prosecution: Such a statement becomes relevant for proving the truth of the facts it contains in any prosecution for an offence under the Customs Act.
- Situations Where Statement is Relevant: The statement is relevant if:
- The person who made the statement is dead, cannot be found, is incapable of giving evidence, is kept out of the way by the adverse party, or if their presence cannot be obtained without unreasonable delay or expense.
- The person is examined as a witness in court, and the court believes that admitting the statement as evidence is in the interests of justice, considering the circumstances of the case.
- Application to Other Proceedings: The provisions of sub-section (1) also apply to any proceeding other than those before a court, as far as possible. So, for example, an adjudication proceeding.
Important Conditions & Exceptions
- Condition 1: The statement must be made to a gazetted officer. Statements to non-gazetted officers are not covered.
- Condition 2: The statement must be signed by the person making it. An unsigned statement is not admissible under this section.
- Exception: The court has the discretion to decide whether admitting the statement is in the interest of justice, even if the person is present as a witness. The court will consider factors such as the credibility of the witness, potential coercion, and consistency of the statement with other evidence.
Practical Example
Suppose ABC Importers is suspected of undervaluation of goods. During investigation, Mr. Sharma, an employee of ABC Importers, gives a signed statement to a gazetted customs officer admitting to the practice of undervaluation at the behest of his superiors. Later, Mr. Sharma dies. In the subsequent prosecution of ABC Importers, Mr. Sharma's signed statement is relevant and admissible as evidence under Section 138B(1)(a), as he is deceased and cannot testify. Alternatively, if Mr. Sharma is alive and testifies, the court may admit his prior statement under 138B(1)(b) if it believes this is in the interests of justice, perhaps because Mr. Sharma is now recanting his original statement.
Key Amendments
No major amendments since enactment.
No case laws found for this provision yet.
Browse all case laws →Frequently Asked Questions
When is a statement made to a Customs Officer admissible as evidence under Section 138B of the Customs Act, 1962?
A statement made and signed before a gazetted Customs Officer is relevant for proving the truth of its contents in a prosecution under the Customs Act, 1962, under specific circumstances outlined in Section 138B(1). These circumstances include when the person who made the statement is deceased, cannot be found, is incapable of giving evidence, is kept away by the opposing party, or their presence is unreasonably difficult to obtain. Additionally, the statement may be admitted if the person is examined as a witness and the court deems its admission to be in the interest of justice.
Does Section 138B apply to proceedings beyond court settings, such as adjudication or appeals before customs authorities?
Yes, Section 138B(2) explicitly states that the provisions of sub-section (1) apply to any proceeding under the Customs Act, 1962, not just those before a court. This means that statements made to Customs Officers can be considered relevant evidence in adjudication proceedings, appeals, and other administrative actions under the Act, subject to the same conditions.
What are the key conditions for admitting a statement under Section 138B when the maker is examined as a witness?
When the person making the statement is examined as a witness, Section 138B(1)(b) requires the court to form an opinion that admitting the statement is in the interest of justice, considering the circumstances of the case. This provides the court with discretion based on factors like the witness's demeanor, the consistency of their testimony with the prior statement, and any potential biases or influences.
What constitutes 'incapable of giving evidence' under Section 138B(1)(a) of the Customs Act?
'Incapable of giving evidence' isn't explicitly defined within the Customs Act, 1962, but is generally interpreted to include situations where the person suffers from a physical or mental infirmity that prevents them from understanding questions or providing coherent answers. The court will likely consider medical evidence or other relevant information to determine if this condition is met, allowing the prior statement to be used.
If a statement is admitted under Section 138B, does it automatically guarantee a conviction?
No, the admission of a statement under Section 138B does not automatically guarantee a conviction. While the statement becomes relevant evidence, the court will still consider its probative value, reliability, and consistency with other evidence presented. The prosecution must still prove the guilt of the accused beyond a reasonable doubt based on the totality of the evidence.
What is the role of a Gazetted officer of customs in Section 138B of the Customs Act, 1962?
Section 138B of the Customs Act, 1962, states that the statement should be signed before any gazetted officer of customs. The gazetted officer status adds a level of authentication and credibility to the recorded statement. It signifies that the statement was recorded by a responsible officer, reducing the chances of coercion or malpractice during statement recording.
Are there any specific formats or procedures prescribed for recording statements to be admissible under Section 138B?
While Section 138B does not prescribe a specific format, best practices dictate that the statement should be recorded accurately, verbatim, and in the language understood by the person making the statement. The person should sign the statement voluntarily, acknowledging its contents. Any signs of coercion or undue influence can render the statement inadmissible, even if it technically meets the requirements of Section 138B.
Key Conditions & Requirements
| Condition | Details |
|---|---|
| Statement must be made before gazetted officer | The statement must be made and signed by a person before a gazetted officer of customs during an inquiry or proceeding. |
| Relevance in prosecution under Customs Act | The statement is relevant for proving the truth of facts in a prosecution for an offense under the Customs Act. |
| Declarant's unavailability - death or untraceable | The statement is relevant if the person making it is dead, cannot be found, or is incapable of giving evidence. |
| Declarant's unavailability - adverse party influence | The statement is relevant if the person is kept out of the way by the adverse party. |
| Declarant's unavailability - unreasonable delay/expense | The statement is relevant if obtaining the person's presence would cause unreasonable delay or expense, as judged by the court. |
| Declarant examined as witness; justice dictates use | Even if the declarant is a witness, the court may admit the statement if the interest of justice requires it. |
| Applicable to proceedings beyond court settings | The provisions also apply to proceedings under the Customs Act outside of a courtroom setting (e.g., adjudication proceedings). |
Amendment History
Inserted by s. 9 of the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973).(w.e.f. 01.09.1973)