Petition praying that in the circumstances stated therein the High Court will be pleased to call for the records of the Additional Chief Metropolitan Magistrate, E.O.I., Egmore, Madras in Cri. M.P. No. 407/87 in C.C. No. 248 of 1987 dated - and quash the same.


Order : -This petition coming on for hearing upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr. P. Rajamanickam, Central Government Public Prosecutor on behalf of the petitioner and of Mr. C.M. Syed Fasiuddin, Advocate for the respondent, the Court made the following order :-


The Assistant Collector of Central Excise, Madras, who had filed a complaint against the respondent and another for an offence under Section 135(1)(b)(i) of the Customs Act, now pending before the Additional Chief Metropolitan Magistrate (Economic Offences-l) Egmore, Madras, as C.C. No. 248 of 1987, has filed this petition, to set aside the notice issued by the above Court under Section 165 of the Evidence Act, directing him to produce the recorded information, regarding the commission of the offence and the order granting rewards, if any.


2.Facts briefly are :- On information that a huge consignment of foreign made zip fasteners was arriving by lorry from Thanjavur - Nagapattinam side, for delivery to the first accused, in his furniture shop at Door No. 144, Greams Road, Madras-6 and that the zip fasteners, would be immediately removed by a car and a taxi, the Revenue Intelligence Officer (P.W.I) on31-8-1982atabout11.45p.rn. reached the above premises along with others. Round about midnight, an Ambassador Car bearing T.M.Q. 7713 and an Ambassador Taxi, bearing Registration No. MDO 3401 entered the compound and about 15 minutes latter, a lorry bearing Registration No. MDF 4047 also came there. The respondent was present in the taxi. Under the supervision of the respondent, one of the bags were loaded inside the dicky of Ambassador Car TMQ 7713. P.W. 1 and other Officers came near the vehicles, revealed their identity and found that the lorry contained some maize bags and also 14 gunny bags containing Japan made Y.K.K. Zip fasteners. Similarly, the gunny bag that had been loaded inside the Ambassador Car TMQ 7713, was also found to contain Y.K.K. Zip fasteners. The respondent and others, had no valid documents for possession of the above articles. In the presence of the watchman of that shopping complex and another, the above articles were seized under mahazars. The market value of the zip fasteners seized was Rs. 3, 56, 280/-. Copies of the mahazars were given to the respondent and others, a case was registered, further investigation was done, statement from the respondent and others were obtained and finally a complaint was filed against the respondent, as the second accused and his co-accused.


3.During trial, P.Ws. 1 to 5 were examined on behalf of the petitioner. At that stage, the respondent filed an application under Section 91 Cr. P.C. to direct the Deputy Director, Revenue Intelligence, to produce the reward file in the above case to find out (a) whether there was any information about the case; (b) whether reward was given to the informant in the above case and (c) how much reward was given. It was stated that P.W. 1, when examined had deposed, that the crime was detected on specific information and the informant was entitled to get reward from the Department, and that the above particulars were necessary for better appreciation of the evidence. The petitioner resisted the above prayer inter alia contending, that the information called for was privileged under the Evidence Act and it would not be in public interest, to disclose the grant of reward or the quantum of reward to the informers and also that, these facts were, totally irrelevant to the issue in the case.


4.After both sides had argued the petition, the respondent withdrew his petition as 'not pressed'. Learned Trial Judge, therefore, dismissed the petition as not pressed but issued the impugned notice, which is as follows :-


"Whereas in this case, evidence has been given about the alleged contents of an information received and recorded by one of the Officers of your Department and it is urged by the accused in course of cross-examination that no such information was in fact received leading to distribution of rewards. To clear the conscience of the Court and to find out the truth of the alleged information existing, it is hereby ordered that the alleged recorded information as well as the alleged order granting rewards if any, are directed to be produced before this Court on or before 22-6-1987.'The petitioner invokes the inherent powers of this Court under Section 482 Cr. P.C. to quash the above notice.


4.Thiru P. Rajamanickam, learned counsel for the petitioner, contended that both the documents, called for by the trial court, came within the purview, of Sections 124 and 125 of the Evidence Act as being privileged and, since the disclosure of the same would affect public interest, the petitioner could not be compelled to produce the documents. Learned counsel also contended that the documents were irrelevant and had no bearing on the issues in the trial. Reliance was placed upon certain decisions, which I shall refer to later.


5.The question that arises for consideration is whether the recorded information regarding the commission of an offence against the public revenue and the order granting rewards to informants of such information, are entitled to the immunity extended under Sections 124 and 125 of the Evidence Act.


6.I shall first consider, whether the information recorded by the Customs Officials regarding the commission of an offence under the Customs Act, would come within the purview of Section 124 of the Evidence Act. Section 124 of the Evidence Act is as follows :-" *


No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interests would suffer by the disclosure.


"That Customs Officials are Officers of the Revenue, is now established beyond any doubt. If any authority is required, one could refer to the decision of the Supreme Court inRamesh Chandrav.State of West Bengal 1999 (110) ELT 324, 1970 AIR(SC) 940, 1969 (2) SCR 461, 1970 (72) BomLR 787, 1970 CrLJ 863, 1961 AIR(Bom) 227, 1968 AIR(Cal) 28, 1971 (2) SCJ 123), wherein the Supreme Court held that in view of the fact that Customs Officers acting under the Customs Act of 1962, have powers to search premises or conveyances, collect evidence, grant bail, held enquiry into disputed case of smuggling and in view of the further fact, that their orders are appealable and are subject to revisional jurisdiction of the Central Board of Revenue and to the Central Government and the powers conferred upon them are primarily for collection of duty and prevention of smuggling, they are for all purposes Officers of the Revenue.


7.It is also now settled that Section 124 of the Evidence Act, includes not only communications made in Official confidence by one public officer to another but also communications made in official confidence by a private individual to a public officer. A single judge of this Court inIn Re Subramanian Chettiar 1967 CrLJ 1232), while considering the question as to whether the statements of witnesses recorded by the Revenue Divisional Officer in an enquiry under Section 145 of the Police Standing Orders, could be considered as a communication made by witnesses to the public officer in official confidence, held that the section includes, not only the communications made in official confidence between two public officers, but also include communications made by private persons to a public officer.


8.The above decision was followed by a Bench of the Andhra Pradesh High Court inPublic Prosecutorsv.P.S. Ismail- 1973 CrLJ 931). In that decision, recorded Information, furnished by a private citizen to the Assistant Collector, which led to the surprise raid resulting in the discovery of the commission of crime, was held to be a privilege communication, coming within the purview of Section 124 of the Evidence Act.


9.The next question is whether such a communication can be said to be made in official confidence. This aspect has also been discussed by the bench of the Andhra Pradesh High Court in the decision already referred to viz., Public Prosecutors. P.S. Ismail (1973 Crl. LJ. 931). They quoted with approval a decision of the Bombay High Court inBhalachandrav.Chanbasappa 1939 AIR(Bombay) 237)." *


In my opinion a communication in official confidence requiring protection under Section 124, Evidence Act, must be such as to necessarily involve the willful confiding of secrets with a view to avoid publicity by reason of the official position of the person in whom trust is reposed, under an express or implied promise of secrecy. The test must be whether the disclosure would result in betrayal of the person confiding by the publication of the communication having regard to the nature thereof. The prerogative right therefore has to be distinguished from the evidence showing how it arises in a particular case.

"Finally the Bench observed :


'The heart of the matter is whether the disclosure of the communication would result in an injury to the public interest and it would not amount to betrayal of person who under a bona fide and honest impression that the source as well as the contents thereof would not be published, made that communication to the public officer. In other words, the information though of a confidential nature, is given by a citizen or an officer to a public officer to enable him to take appropriate action and protect public interests.'


It follows therefore that such information's, are passed on by private citizens to public officers required to discharge certain duties, with the object of enabling them to take necessary action with reference to the subject matter of the information. The informants, therefore, when they give information to Customs officials about the commission of any offence relating to revenue, do so, with the object of making the Customs officials take action either to prevent the crime or if the crime is committed, to set the law in motion against the offenders, such communications, are made in official confidence.


10.Learned Counsel for the Petitioner, while elaborating upon his plea that the contents of the recorded information relating to the commission of crimes are privilege under Section 124 of the Evidence Act, contended that these communications belong to a class, which would require immunity and the Court has to extend that immunity, when prayed for by the officials concerned, even without calling for the production of the documents and even without the Court itself looking into the contents of the documents. Learned Counsel found support for this concept of class-immunity, already judicially recognized in several decisions, and finally elaborated inS.P. Guptav.Union of India (hereinafter referred to as Judges transfer case). In that case, the Supreme Court held, that there are contain classes of documents which belong to a class and should not be disclosed, irrespective of the actual content of each document of that class. Law recognizes, their immunity from disclosure, as a class. As illustration of these documents coming under Section 123 of the Evidence Act, cabinet papers, minutes of discussions of Heads of departments and high level documents relating to the inner working of the Government machines or concerned with the framing of Government policies were indicated. Learned counsel for the petitioner contended that if under Section 123 of the Evidence Act, such a class immunity could be offered to documents coming within the purview of that section, in the same way and for the same purpose for which such class immunity would recognise, official communications of a particular kind, could be classified as a class and privilege under Section 124 of the Evidence Act extended, irrespective of the contents of the individual documents. According to the learned counsel information about the commission of a crime, is a class, to which immunity should be extended under Section 124 of the Evidence Act and which, therefore, the Court cannot order production. In the instant case, according to the learned counsel, the trial court knew the nature of the documents it was calling for and that itself should indicate to the court that it belonged to a class for which privilege should be extended and, the question of granting or rejecting privilege should not depend upon the contents of the particular document. The trial court, was not justified in calling for the production of the recorded information about the crime to decide whether the document is privileged or not.11.I am unable to accept the contention of the learned counsel for the petitioner. The class immunity recognised by the Supreme Court is under Section 123 of the Evidence Act. Further, privilege, being an exception to general law that all admissible and relevant material, should be placed before the Court and also made available to the adverse party, has to be construed, not too liberally. Even in the Judges' transfer case, the Supreme Court had indicated that the claim of class immunity, is an extraordinary claim because it is based not upon the contents of the documents in question, but upon the membership to a class whatever its contents may be and that, therefore Court should be very low in upholding such a broad claim. Finally, on the facts of that case, the Court held that the correspondence exchanged between the Law Minister or other high level functionary of the Central Government, the Chief Justice of the High Court, the State Government and the Chief Justice of India in regard to appointment or non-appointment of a High Court Judge (of Supreme Court Judge) or the transfer of a High Court Judge, and the notes made by these constitutional functionaries in that behalf, cannot be regarded as a protected class entitled to immunity against disclosure.


12.While considering the question of the possible injury to public interest resulting from the disclosure of documents for which privilege is claimed, the Supreme Court observed, that the nature of the proceedings in which the disclosure is sought and the importance of the documents in the determination of the issues arising in it, are also vital considerations to be taken into account in deciding the issue. A passing observation has also been made that in a criminal trial, where the liberty of an accused is at stake any document, which is necessary to support the defense of the accused, must be disclosed whatever on the nature of the document.13.In the light of the above observations of the Supreme Court, I am unable to accept the contention of the learned counsel for the petitioner that the recorded information about the commission of crimes, should constitute a class, for which immunity should be given under Section 124 of the Evidence Act, irrespective of the contents of the information. This is more so, in view of the fact that the proceeding, in which these documents are now called for, Is a criminal trial. Recorded information about the commission of an offences, cannot constitute a class, to which immunity should be extended irrespective of the contents of each document.


14.It is seen that the petitioner has come to this Court, with this petition, immediately on receipt of the impugned notice. No privilege as such has been claimed under Section 124 of the Evidence Act by the official concerned. Proper procedure, therefore, would be for the official, to apply to the trial court, which would decide as to whether the claim of privilege of the official is not based upon a perverse, unjust or mala fide exercise of discretion. No doubt the public officer is the sole judge to decide, as to whether the disclosure of the contents of the document would impair public interest. These would be matters for the trial court to decide.


15.Learned Counsel also referred to the decision reported inState of Andhra Pradeshv.P.S. Ismail 1973 CrLJ 931), wherein, on identical facts, the information received by the Collector of Customs from a private citizen leading to the search of premises and seizure of contrabands was held to be a privilege under Section 124 of the Evidence Act. These would be matters which the trial court would decide at the appropriate time. The notice of the Learned Magistrate directing the production of the text of the recorded information cannot be quashed by this court at this stage. Apart from that, P.W. 1 in his evidence has, more or less, stated all the necessary details about the information. According to P.W. 1, on 31 -1 -1982 at 10 p.m. specific information was received that a huge consignment of zip fasteners of foreign origin was arriving by lorry for Thanjavur - Nagapattinam side for delivery to the first accused in his furniture shop and that the zip fasteners would at once be removed by a car and taxi. This information was recorded by Thiru T.N.S. Mani, Assistant Director, D.R.I, in the information slip, kept in the safe custody of Deputy Director, D.R. I. in charge of Madras Zonal Unit. When, therefore, the text of the recorded information has been referred to by P.W. 1 in his evidence, the question of disclosure does not really arise.16.The next document that is called for by the trial court is the order granting rewards, if any. The trial court, in the impugned order, has made it clear that the above document is called for, in view of the fact that the accused urges in the cross-examination, that no information in fact was received leading to distribution of rewards and that, therefore, the alleged order granting rewards, if any, has to be produced. I am not able to find any such suggestion put to the witness P.W. 1 in the cross-examination. The only question that has been put to him is whether the informant has been given any reward, to which P.W. 1 has answered that he does not know. P.W. 1 has also added that the Deputy Director, D.R.I, is the Officer, who has to disburse the rewards to informants.


17.That apart, Section 125 of the Evidence Act is as follows:" *


No Magistrate or Police Office shall be compelled by say whence he got any information as to the commission of any offence, and no Revenue Officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue."


When, therefore, the Customs Officials cannot be compelled to say from where he got information, which in other words would mean who actually gave him information, the court cannot compel him to disclose the name of the informant or the source of information. A plain reading of Section 125 of the Evidence Act indicates that when the order granting reward to the informant in this case is called for, it has the effect of requiring the petitioner to disclose the name of the informant as well. It would be impossible to split up the order into parts to eschew the name, identity and address of the informant. It is significant that while under Section 124 of the Evidence Act a Public Officer can claim privilege only if he considers that the public interest would suffer by the disclosure of the communication, under Section 125 of the Evidence Act, the Police, Magistrate and the Revenue Officer can claim privilege from disclosing the name of the informant, without any other consideration coming in. No further proof of, public interest being adversely affected by the disclosure of the name of the informant, is necessary under Section 125 of the Act. In the instant case, the petitioner, even in the counter filed to the application of the respondent under Section 91 Cr. P.O. had claimed privilege under Section 125 of the Evidence Act regarding details about the reward given to the informant.18.Learned Counsel for the petitioner also contends that the question as to whether any reward was paid to the informant, in the instant case, is a totally irrelevant consideration, so far as the trial is concerned. Learned counsel placed reliance upon a decision of the Supreme Court inAsian Narainv.State of Maharashtra 1973 CrLJ 1839), wherein in a trial for an offence under Section 165-A I.P.C. committed on 14-8-1964, the nothings of the officials concerned, about the informant claiming reward, made between 21-5-1965 a

nd 7-6-1965 were held to be irrelevant and not to impinge on the guilt or innocence of the accused. 19.It is common knowledge that in a preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974, the recorded information, leading to detection of offence which is placed before the detaining authority, is embodied in the detention order and the copy of the recorded information is also furnished to the detenu to enable him to make an effective representation against his detention. It is only the source of the information that is withheld from all concerned. In fact, a Bench of this Court inMahaveer Chand, P.v.Union of India(1985 LW. Cri. 209), following the decision of the Supreme Court inState of Punjab and Othersv.Jagdev Singh Telwandi 1984 AIR(SC) 444, 1984 (1) Crimes 224, 1984 CrLR(SC) 409, 1983 (2) Scale 942, 1984 (1) SCC 596, 1984 SCC(Cr) 135, 1984 (2) SCR 50, 1984 (90) CRLJ 177) has held that the detenu is not entitled to be informed of the source of information, but that the gist of the information forms part of the order of detention. The Supreme Court has reiterated the principle in a still later decision inState of Rajasthanv.Sham Sher Singh 1985 (91) CRLJ 1348, 1985 AIR(SC) 1082, 1985 (2) Crimes 242, 1985 CAR 218, 1985 CrLR(SC) 270, 1985 (2) Scale 306, 1985 (S) SCC 416, 1985 SCC(Cr) 421, 1985 (S1) SCR 83, 1985 SSCC 416. 20.It, therefore, follows that as far as the order granting rewards to the informant is concerned, the same is privileged under Section 125 of the Evidence Act. The trial court cannot require the petitioner to produce the copy of the order, since the same would only amount to disclosing the name of the informant. That part of the notice of the trial court, therefore, has to be set aside.21.In the result, the notice issued by the trial Court in so far as it relates to requiring the petitioner to produce the order granting rewards to the informant in the case, is quashed. In other respects, the notice is sustained. It will be open to the petitioner to claim privilege, if he so chooses, regarding the recorded information relating to the commission of the offence and the trial court will dispose of the matter according to law. This petition is ordered accordingly.