TMI Blog2017 (3) TMI 1588X X X X Extracts X X X X X X X X Extracts X X X X ..... akh rupees. The said offence is non-bailable offence as is clear from Section 104(6)(d) of Customs Act. There is no statutory provision which may allow a person to appear along with his counsel before the authorities concerned while his statement under Section 108 of the Customs Act is to be recorded - For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-cooperative attitude to the machineries 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. The presence of counsel refusal during interrogation/recording the statement of a person under the Customs Act would not be violative of Articles 20(3) and 21 of the Constitution of India. Petition dismissed - decided against petitioner. - Criminal Misc. Writ Petition No. 4424 of 2017 - - - Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-2016 carried out at the factory premises has been annexed and marked as Annexure-P6. 5. Thereafter the DRI issued summons dated 20-9-2016 to the petitioner being the partner of the firm to give evidence and produce imports/export documents related with import under duty exemption schemes and exports under drawback schemes and to appear on 21-9-2016 at 11:30 at Noida DRI. By letter dated 21-9-2016 the petitioner informed the Senior Intelligence Officer that due to some personal work was away from the city and requested to give another date for hearing in the following week after 26-9-2016. On 26-9-2016 the DRI issued the summons to the petitioner directing him to present himself on 4-10-2016. Similar summons were also sent to the petitioner on 4-10-2016 to appear on 14-10-2016 by the DRI on the same date in respect of proprietorship firm of the petitioner i.e. M/s. Ria Exports. Meanwhile the petitioner s partnership firm has deposited ₹ 1 Crore against the demand of customs duty and the said information has been supplied to the DRI vide letter dated 13-12-2016. Thereafter a summons dated 14-12-2016 has been issued in respect of M/s. Creative Brass and directed them to app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition No. 3842 of 2017 (Shrey Kumar @ Shrey Gupta v. Union of India and 4 Others) in which this Court had passed an order dated 10-3-2017 which is quoted herein below :- Heard Sri Ajay Bhanot, learned Senior Advocate assisted by Sri Mohit Singh, learned counsel for the petitioner, Sri Imran Sayed, learned A.G.A. for the State and perused the record. Learned counsel for Union of India is not present though the matter has been called in the revised list. By means of present petition, the petitioner has prayed following prayers : (i) A writ, order or direction in the nature of writ of mandamus to the respondent to allow the presence of counsel of the petitioner during recording of the statement under Section 108 of the Customs Act, 1962 on every occasion. (ii) a writ order or direction in the nature of writ of mandamus to the respondents to give 3 days prior notice, in case the respondents proceed to arrest the petitioner for that purpose. Learned counsel for the petitioner at the very outset stated that he confines his argument with respect to prayer No. 2 only and does not want to press prayer No. 1. Learned counsel for the petitioner submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said judgment of the Apex Court has taking into account several earlier judgments of the Apex Court on the issue while judgment relied upon by the learned counsel for the petitioner in Vijay Sajnani v. Union of India (supra) no earlier judgment of the Apex Court has been considered. So far as the prior notice of arrest of the petitioner is concerned and claiming parity with the order passed in Criminal Misc. Writ Petition No. 3842 of 2017 (Shrey Kumar @ Shrey Gupta v. Union of India and 4 Others) is concerned he pointed out that though the DRI through it s Officers were impleaded as respondent Nos. 3, 4 and 5 but notice of the same were wrongly and illegally given to the office of the State of U.P. and as such said petitioner has obtained an order dated 10-3-2017 without placing the settled law laid down by the Apex Court in the case of Union of India v. Padam Narain Aggarwal and Others reported in (2008) 13 SCC 305 = 2008 (231) E.L.T. 397 (S.C.). Hence the present petition is devoid of merits and is liable to be dismissed by this Court. 9. Considered the submissions advanced by learned counsel for the parties in order to appreciate the arguments of learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which lays down the provision to summon power to a person to give evidence and produce documents is quoted herein below :- 107. Power to summon persons to give evidence and produce documents. - (1) Any gazetted officer of Customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) 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 be bound to state the truth upon any subject, respecting which they are examined or make statements and produce such documents and other things as may be required : Provided that the exemption under Section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is to be recorded. The case law which has been relied upon by learned counsel for the DRI the Apex Court in case of Poolpandi Others v. Superintendent, Central Excise Others (supra) in which the earlier judgments of the Apex Court has been considered on the issue and the question which was raised and considered by the Court was whether the witnesses had a constitutional right to the assistance of counsel during their interrogation as witness in the enquiry. The said contention was rejected by the Court that the witnesses had such a right. It was pointed out that the persons concerned were not accused and they could not claim the right available to an accused of being heard through his own counsel. The Apex Court further observed that the purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, however, did not stop there. It stated that if the Customs Authorities found any non-bailable offence against the appellants (the respondents herein), they would not be arrested without ten days prior notice to them. The order passed by the High Court to the extent of directions issued to the Customs Authorities is, therefore, liable to be set aside. (Paras 14, 33, 45, 23, 44) The safeguards/considerations against the abuse of power and the statutory character of Section 104 of the Customs Act, 1962 have to be kept in view while deciding the correctness or otherwise of the directions issued by a Single Judge of the High Court. On the one hand the power to arrest a person by a Customs Officer under Section 104 of the Act is statutory in character and cannot be interfered with, and on the other hand, the power to arrest is circumscribed by objective considerations and cannot be exercised on whims, caprice or fancy of the officer. Such power of arrest can be exercised only in those cases where the Customs Officers has reason to believe that a person has been guilty of an offence punishable under Section 132, 133, 135 or 135A of the Act. Section 104 of the Act also oblig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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