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2017 (3) TMI 1545 - DELHI HIGH COURT

2017 (3) TMI 1545 - DELHI HIGH COURT - TMI - Quashing of summons dated 16.03.2017 issued to the petitioner - petitioner seeking to take his lawyer with him at the time of his examination such that the lawyer may be able to see the proceedings but may not be at a hearing distance of the said examination - Held that: - the petitioner has been noticed under Section 108 of the Customs Act and is seeking the said protection of prior notice before arrest. There could be cases where the empowered custo .....

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ice. Though the petitioner has preferred this writ petition to seek quashing of the summons dated 16.03.2017 issued to the petitioner under Section 108 of the Customs Act, learned counsel for the petitioner submits that the petitioner would be satisfied and would not challenge the said notice, if the petitioner is permitted to take his lawyer with him at the time of his examination such that the lawyer may be able to see the proceedings but may not be at a hearing distance of the said examinatio .....

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ned authorities on 23.03.2017 at 11:30 a.m. in the first instance, and on such other dates as may be fixed by the respondent authorities. The petitioner need not appear today for his examination. This Court has observed that similar requests are received by the noticees under Section 108 of the Customs Act. It is hoped that the respondent authorities shall take steps so that uniformly the aforesaid procedure is adopted so as to safeguard the rights of the noticees. The petitioner has also made a .....

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n 135 of the Customs Act, the cases relating to offences of goods, the market price of which exceeds Rs. One crore; or the evasion or attempted evasion of duty exceeds ₹ 50 lakhs; or where the goods in question are prohibited goods, as notified in the Official Gazette by the Central Government, or where the claim for duty draw back or exemption from duty is in excess of ₹ 50 lakhs, the term of imprisonment could extend to seven years with fine, and in other cases, it may extend to th .....

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g to prohibited goods or where the evasion or attempted evasion of duty exceeds ₹ 50 lakhs, the offence is categorized as cognizable. In respect of offences categorized under Section 135(1)(d)(i), the offences have been categorized as non-bailable. Learned counsel submits that the empowered custom officers may, therefore, arrest any person by exercising power under Section 104(1) of the Customs Act. She submits that in case a complaint were to be made to the police making an accusation aga .....

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-bailable under the Customs Act. Learned counsel has, therefore, submitted that the grant of protection to the petitioner by directing that three days prior notice be given - in case the respondents decide to arrest the petitioner, would safeguard the petitioner s fundamental rights guaranteed under Article 21 of the Constitution of India and would enable the petitioner to seek pre-arrest bail by approaching a competent court. She has further submitted that objects of the Customs Act relate to c .....

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e Supreme Court held the said direction to be a blanket direction and inconsistent with the scheme of the Customs Act. The said direction was, therefore, quashed. Though, the power of arrest is vested by Section 104 of the Customs Act on the authorized customs officer, Section 104 itself provides that the concerned officer should have reason to believe that the concerned person who is sought to be arrested has committed an offence punishable under Sections 132, 133, 135, 135A or 136 of the Custo .....

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this decision as follows: 10. We are of the opinion that if the provisions of Section 41 CrPC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproduc .....

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the petitioner has tendered in court a circular issued on 17.09.2013 by the Central Board of Excise & Customs, inter alia, to all Commissionerates of Central Excise and Customs dealing with the aspect of arrest and bail under the Central Excise Act. She states that a similar circular had been issued in respect of arrest and bail under the Customs Act with pari materia provisions. Mr. Narula has submitted that even after the decision in Arnesh Kumar (supra), a circular has been issued on 23.1 .....

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