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2016 (12) TMI 1594 - DELHI HIGH COURT

2016 (12) TMI 1594 - DELHI HIGH COURT - TMI - Presence of counsel for the petitioner during the recording of statement under Section 108 of the Customs Act, 1962 - Summon to appear personally with desired documents - Held that: - the Supreme Court and this Court have routinely permitted the counsel of the noticee to remain present at the time of interrogation/questioning of the noticee u/s 108 of the Act, subject to the condition that the counsel shall be placed at a visible distance, but beyond .....

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titioner shall be permitted to accompany her - appeal allowed - decided in favor of appellant. - W.P.(Crl) 3697/2016 - Dated:- 24-12-2016 - Vipin Sanghi, J. For the Petitioner : Anjali J Manish, Priyadarshi Manish For the Respondent : Satish Aggarwala, Amish Aggarwala ORDER Crl. M.A. No. 20195/2016 Exemption allowed, subject to all just exceptions. The application stands disposed of. W.P.(CRL) 3697/2016 1. Issue notice. Notice is accepted on behalf of the State. The petitioner has preferred the .....

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r has not pressed the first relief in the writ petition, and to that extent the writ petition stands dismissed as withdrawn. 3. The case of the petitioner is that the petitioner is a 63 year old lady, who is a sleeping partner in two firms, namely, M/s. Lifa Enterprises and M/s. Goodluck Trading Company. The petitioner claims that Mr. Sanjay Puri, who is the other partner, is active in both the firms. The petitioner has placed on record the partnership deeds in respect of the aforesaid firms, wh .....

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DRI issued a summons requiring the petitioner to appear along with the partnership deed and other documents in respect of import of leggings made by Lifa Enterprises. Summons were issued to the petitioner returnable on 30.09.2016. However, the petitioner did not appear and Mr. Sanjay Puri, sent a response giving reasons for the petitioner s non-appearance. Yet again, summons were issued to the petitioner on 10.10.2016 requiring her to appear on 21.10.2016. A response was sent by Mr. Sanjay Puri .....

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purpose. Once again summons were issued to the petitioner on 16.11.2016, requiring the petitioner to appear with the documents regarding imports made by the firms. The petitioner again sent a response on 23.11.2016 stating that her appearance would serve no purpose except physical exertion to her when she is not feeling well. 7. In view of the repeated non-appearance of the petitioner in response to the notice issued to her, respondent no.3 preferred a complaint bearing CC No.51121/2016 u/s 174 .....

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it petition to seek the aforesaid reliefs. 9. At the outset, I may observe that the petitioner is not an unconnected person with the two firms. She is the majority shareholder in the two firms. As to what is her defence is a matter that she has to disclose to the concerned authorities in response to the summons issued to her. The summons issued to the petitioner u/s 108 of the Act is in respect of an inquiry which respondent no.3 is conducting in relation to import of leggings and pyjamas by the .....

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n of learned counsel for the petitioner is that since the petitioner is a senior citizen and a lady, firstly, her questioning may be undertaken in the presence of a lady officer and during normal office hours. Mr. Aggarwal submits that, though, the respondents conduct the inquiry even beyond the normal office hours - as that may be required on account of exigencies of a particular case, he submits that in the special facts of this case, the respondents shall hold the inquiry during normal office .....

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.29/2012 decided by the Supreme Court on 25.04.2012; ii) Nitin Jain v. DRI & Anr., W.P.(Crl.) No. 2388/2015 decided by this Court on 20.10.2015; iii) Nipul Jain @ Monty Jain v. Additional Director, DRI, W.P.(Crl.) No.1897/2015 decided by this Court on 02.09.2015; iv) Senior Intelligence Officer, DRI v. Jugal Kishore Samra, (2011) 12 SCC 362; v) Mahender Kumar Kundia v. Union of India, 2015 (319) ELT 9 (SC); vi) Rajender Arora & Ors. V. UOI & Ors., W.P. (C) No.389/2010 decided by the .....

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hear the process of interrogation/inquiry undertaken by the authorities. 13. The aforesaid prayer made by the petitioner is strongly opposed by the respondents by placing reliance on Poolpandi v. Superintendent, Central Excise & Ors., AIR 1992 SC 1795 : 1992 (3) SCR 247. The relevant extracts from this decision relied upon by Mr. Aggarwal read as follows: 11. We do not find any force in the arguments of Mr Salve and Mr Lalit that if a person is called away from his own house and questioned .....

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s on lavish scale of which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the .....

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of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits thereunder should not be expanded to favour exploiters engaged in tax evasion at the cost of public exchequer. Applying the just, fair and reasonable test we hold that there is no merit in the stand of appellant before us. 13. The judgment under challenge in Criminal Appeal No. 476 of 1986 .....

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arising under FERA. Consequently Criminal Appeal No. 476 of 1986 has to be allowed against that part of the judgment of the Delhi High Court which dealt with the right of the respondents to have their lawyer during their interrogation. 14. On the other hand, learned counsel for the petitioner has relied upon the judgment of the Supreme Court in Birendra Kumar Pandey & Anr. V. Union of India & Anr., in W.P.(Crl.) No.28/2012 decided on 16.04.2012. The submission of the petitioner is that .....

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