TMI Blog2012 (4) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... d during the process of inquiry which had not been obtained by compulsion, could be made use of in the subsequent proceedings initiated against the petitioner or against other persons - Writ Petition No.29743 of 2011 - - - Dated:- 9-2-2012 - MR.JUSTICE M.JAICHANDREN, J. For petitioner : Mr.AR.L.Sundaresan Senior Advocate for Ms.A.L.Ganthimathi For respondent : Mr.G.K.R.Pandiyan SCGSC O R D E R The petitioner has stated that he is carrying on business in purchase of Red Sander Wood in the auctions conducted by the various Departments of the State Governments. The Red Sander Wood purchased by the petitioner had been sold to various persons, who purchase the same, process it for its utilisation within the country or for the purpose of export. While so, on 26.11.2011, when the petitioner was waiting at the Chennai Airport to board a flight to Pune, he had been apprehended by the officers of the Directorate of Revenue Intelligence, Chennai Unit. Thereafter, he had been taken to Delhi and handed over to the respondent herein. On 27.11.2011, a statement had been recorded by the respondent, as if the petitioner had stated that he had supplied Red Sander Wood to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority or power to issue a summons, under Section 108 of the Customs Act, 1962. The summons issued by the respondent is arbitrary, illegal and void and therefore, it is liable to be set aside. 5. The learned counsel had further submitted that the respondent had registered a criminal case against the petitioner, under the provisions of the Customs Act, 1962, based on the allegation that he had been involved in smuggling of Red Sander Wood to Dubai and other places. The petitioner had also been arrested and produced before the Additional Chief Metropolitan Magistrate, New Delhi, on 30.11.2011. The petitioner had been granted bail in the said criminal case. Since, the petitioner has been arrayed as an accused in the criminal case, he cannot be compelled to give evidence in connection with the said case. As such, the summons, calling upon the petitioner to give evidence or produce the documents and things relating to the alleged smuggling of Red Sander Wood to Dubai and other places, is violative of Article 20(3) of the Constitution of India. 6. The learned counsel had also submitted that the summons issued by the respondent, under Section 108 of the Customs Act, 1962, is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a vital protection to ensure that the prosecution discharges the said onus. 8.2. In M.P.SHARMA AND OTHERS Vs. SATISH CHANDRA, DISTRICT MAGISTRATE, DELHI AND OTHERS (CDJ 1954 SC 137), the Supreme Court had dealt with the question of search and seizure of documents. 9. Per contra, the learned Senior Central Government Standing Counsel appearing for the respondent had submitted that the respondent is empowered, under Section 108 of the Customs Act, 1962, to summon any person, whose attendance he considers as necessary, either to give evidence or to produce a document, or any other thing, in any enquiry, which such officer is making under this Act. All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such, officer may direct, and all persons so summoned shall also be bound to state the truth upon any subject, in respect of which they are examined, or to make statements and to produce the documents and other things, as may be required. Therefore, the petitioner cannot claim that the summons issued, under Section 108 of the Customs Act, 1962, is contrary to law. 10. The learned counsel had also submitted that the summon issued, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms officer. Hence, the statement recorded during an enquiry, under Section 108 of the Customs Act, 1962, or during the confiscation proceedings is not that of an accused, within the meaning of Section 24 of the Indian Evidence Act, 1872. 11.5. In BHANABHAI KHALPABHAI Vs. COLLECTOR OF CUSTOMS (1994) SUPP (2) SCC 143, the Supreme Court had held that statement made by an accused, recorded under Section 108 of the Customs Act, 1962, can be used against the person making such a statement before any complaint or first information report is lodged against him. 11.6. In the said decision, the decision of the Supreme Court in VEERA IBRAHIM Vs. STATE OF MAHARASHTRA (1976) 2 SCC 302), was also quoted, wherein, it has been held that, at the time the statement had been made by the customs officer, the person making such statement had not been formally accused of any offence and therefore, the statement recorded by the Inspector of Customs Officer concerned would not be hit by Article 20(3) of the Constitution of India. 12. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available and in view of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 108 of the Customs Act, 1962, and to conduct an enquiry, without infringing clause 3 of Article 20 of the Constitution of India. 15. It is relevant to cite the following decisions in respect of the issue in question. 15.1. In SUDHIR GULATI Vs. UNION OF INDIA (MANU/DE/0356/1998, the Supreme Court had held that the petitioner is accused of an offence, in respect of the FIR noticed hereinbefore, within the meaning of Article 20(3) and cannot be compelled to be a witness against himself. But the scope of offence under the aforesaid FIR and scope of enquiry under Customs Act, 1962, are different. An enquiry under the Customs Act, 1962, primarily relates to the smuggling of goods. Section 108 confers upon a Gazetted Officer of the Customs the power to summon any person, whose attendance he considers necessary, to give evidence or to produce a document or any other thing, in any enquiry, which such officer is making in connection with the smuggling of goods. The person so summoned is bound to attend and to state the truth, upon any subject in respect of which he is examined, or to make statements and produce such documents and other things, as may be required. Therefore, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry into. India of dutiable goods, without payment of duty and of goods of which the entry is prohibited. He does not, on that account, become, either a police officer, nor does the information conveyed by him, when the person guilty of an infraction of the law is arrested, amount to making of an accusation of an offence against the person so guilty of infraction. Even under the Act of 1962 formal accusation can only be deemed to be made when a complaint is made before a Magistrate competent to try the person' guilty of the infraction, under Sections 132, 133, 134 and 135 of the Act. Any statement made under Sections 107 and 108 of the Customs Act, 1962, by a person, against whom an enquiry is made by a Customs Officer, is not a statement made by a person accused of an offence. 16. In such circumstances, it is made clear that the petitioner shall not be compelled by the respondent to give evidence against himself, as he is an accused person in the alleged smuggling activities of Red Sander Wood to Dubai and to other places. However, the evidence obtained by the respondent, from the accused, during the process of enquiry conducted by him, under the relevant provisions of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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