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2022 (7) TMI 1195 - HC - CustomsValidity of summons issues - SEZ unit - Impact of proceedings under PML Act over Customs Act - allegation of diversion of duty free gold clandestinely diverted duty into the domestic market and exported fake ornaments made from little quantity of gold by mis-declaring them as studded jewellery. - Seeking to declare the action of the respondents in summoning the petitioners under Section 108 of the Customs Act, 1962, as illegal and contrary to the provisions of the Cr.P.C. - seeking to direct the respondents to record the statement of the petitioners through video conferencing - Sections 4, 5, 160 and 161 of Cr.P.C. and Section 108 of the Customs Act, 1962 - HELD THAT:- Not only under Section 104(3) relating to arrest, but also under Section 105(2) relating to search of premises it was specifically mentioned that the Code of Criminal Procedure is applicable. Under Section 108(3) prviso, it is stated that the exemption under Section 132 of the Code of Civil Procedure shall be applicable. Thus, wherever the concerned provisions are applicable, it is specifically stated in the Act. In the PML Act, there is a specific provision under Section 65 stating that the provisions of Cr.P.C. are applied insofar as they are not inconsistent with the provisions of the said Act to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under the Act. But, there is no such specific provision in the Customs Act, 1962, applying the Code of Criminal Procedure to all the provisions relating to the stages of investigation, trial etc. Admittedly, the Hon’ble Apex Court observed in the case of POOLPANDI VERSUS SUPERINTENDENT, CENTRAL EXCISE [1992 (5) TMI 147 - SUPREME COURT] that it was not at the whims of the person that the investigation should be done at his or her convenience. Hence, the petitioners could not take shelter of the judgment of the Delhi High court when it was not in accordance with the judgment of the Hon’ble Apex Court. Whenever a statute creates a new offence and also sets up a machinery for dealing with it, the provisions of Cr.P.C. relating to the matters covered by such Statute would not be applicable to the said offences. The Customs Act was enacted in 1962 and had created the offences under Chapter-XVI and the manner of enquiry and investigation are prescribed in Chapter-XIII. The Customs Act is enforced only by the Customs Officers by its own machinery. The Customs Officers are empowered with the power of investigation as contemplated under Chapter-XIII of the Customs Act, 1962 - The Customs Officer is not a police officer as per the judgment of the Hon’ble Apex Court in STATE OF PUNJAB VERSUS BARKAT RAM [1961 (8) TMI 28 - SUPREME COURT] and the statement made before him by a person who is arrested or against whom an enquiry is made are not covered by Section 25 of the Indian Evidence Act. As summoning of the petitioners by the respondents would not amount to taking any coercive steps like arresting them or prosecuting them, but only to proceed forward with the investigation and, however, as the learned Additional Solicitor General of India also conceded that they were not insisting on the presence of petitioners No.1 and 2, it is considered fit to allow the petition with regard to petitioner Nos.1 and 2 and to dismiss the petition with regard to petitioner Nos.3 to 5. The petitioners No.3 to 5 are directed to comply with the summons and to give their statements in person and to co-operate with the investigation in the interest of justice. The Writ Petition is partly allowed.
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