TMI Blog2018 (11) TMI 1479X X X X Extracts X X X X X X X X Extracts X X X X ..... an authorised agent. In fact, Sri Augustian lays stress on this alternative and insists that the witness's physical appearance before the authority is not mandatory. The officer can insist on the witness's presence. When an investigation into a crime is in progress, the officer concerned must have complete freedom to proceed with the investigation unhindered-of course within the legal bounds. This Court will not supplant its view on how an investigation should be carried out - also, a person's liberty, safety, and dignity-not to be subjected to degrading or inhuman treatment, including infliction of physical injury-is sacrosanct. Therefore, to balance the competing interests of the investigating agency and the witness summoned, Sibin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed this writ petition. 2. Sri P.A. Augustian, the petitioner's counsel, submits that Sibin works for a meager salary abroad. His employer simply instructed him to receive foreign currency from a person coming from India. But that person, on his way to the UAE, was intercepted. Later, based on the information provided by the person intercepted, the Department summoned Sibin's employer, first. 3. Sri Augustian further submits that Sibin's employer confessed to the whole crime and expressed his willingness to cooperate with the investigation. In the alternative, he also asserts that the offence itself is compoundable and it does not require a witness's appearance before the authorities. Sibin cannot be termed a material w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acket in foreign currency, and it is detrimental to the nation's economy. Therefore, the Department, according to him, has rightly insisted on Sibin's appearance. 7. The Court queried about Sibin's apprehension: a threat to his physical safety or, as it is popularly put, the third-degree treatment he may receive. In reply, the learned Senior Standing Counsel assures the Court that the authorities will abide by the law, and will cause no harm to Sibin. 8. Heard Sri P.A. Augustian, Sibin's counsel, and Sri Sreelal Warrier, the learned Senior Standing Counsel for the Customs Department. 9. Indeed, Sibin is summoned as a witness under Section 108 of the Act. To the Ext.P1 notice dated 10.08.2018, the first one, Sibin pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be applicable to any requisition for attendance under this section. ( 4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860). 11. As seen from the above extract, an officer of the Customs will have the power to summon any person whose attendance he considers necessary either to give evidence or to produce a document. And under sub-section (3), all persons who are summoned shall be bound to attend either in person or by an authorised agent. In fact, Sri Augustian lays stress on this alternative and insists that the witness's physical appearance before the authority is not mandatory. Yet the next part of sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential, yet the process ensures that the witness has not been met with any physical abuse. 15. Here, I must mention one fear Sibin underlined before the Court: that on his appearance, Sibin would be treated as an accused and arrested. Law permitting, Sibin is free to seek any other legal redressal such as securing an anticipatory bail if he apprehends arrest or other consequences that affect his liberty. 16. At this juncture, Sibin's counsel has submitted that the Department has been in the habit of videotaping only the innocuous part of the investigation; later they shift the witness or accused to another room and physically assault him to extract confessions. Therefore, he needs the authorities to record through the closedcircui ..... X X X X Extracts X X X X X X X X Extracts X X X X
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