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TMI Blog2019 (12) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... s, from China, by mis-declaring the value thereof, a raid was conducted, at the premises of the petitioner, on 12th June, 2018, and goods were seized. Since then, investigations, in the matter, are proceeding. 4. Several summons were issued, many of which were avoided by the petitioner. We have noted, in our order dated 2nd September, 2019, that the petitioner avoided the summons issued to him, on 26th February, 2019, 4th March, 2019, 1st April, 2019, 15th April, 2019 and 13th June, 2019. Proceedings under Section 174 of Code of Criminal Procedure, 1973, have also been initiated against the petitioner, for willful disobedience of the summons issued to him. 5. The prayer clause, in the writ petition filed by the petitioner, reads thus: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween of the parties and the complexity of the situation. 15. As the investigation is ongoing, we are not going much into and upon the facts of the case. Suffice it to state, that the petitioner has to attend hearing before the DRI Ahmedabad, as per summons issued to this petitioner. 16. At this stage, we see no reason to quash the search and seizure dated 12th June, 2018 carried out by Respondent No.2 at the premises of this petitioner. Nor we see any justifiable reason for quashing and setting aside the summons, as stated in the prayer clause. 17. If the petitioner is non-cooperative, actions are bound to be action to be initiated by respondents in accordance with law. 18. Hence, there is no substance in this writ petition and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eview, even on merits. 12. Ms. Manish candidly concedes that there is no absolute entitlement, in law, for an advocate's presence, at visible, but not audible distance, during the course of recording of a statement, pursuant to summons under Section 108 of the Customs Act, 1962 (hereinafter referred to as "the Act"). She has, however, drawn our attention to various orders, passed by the Supreme Court and High Courts, wherein this concession has been granted. 13. She drew our especial attention to order, dated 16th April, 2012, passed by the Supreme Court in Birendra Kumar Pandey v. U.O.I WP (Crl). 28/2012 (order dated 16.04.2012), in which the Supreme Court had permitted the presence of an advocate at visible, though not audible, distance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts could be made to extort confessions from them. 16. No doubt, if a litigant, in a particular case, is able to produce credible material to indicate a real and live apprehension, of the possibility of coercive methods being employed, while recording of his statement under Section 108 of the Act, the court can always permit the presence of an advocate, at visible, but not audible, distance, during the course of recording of the statement. 17. The apprehension of coercive measure being employed is, however, required to be real and live, so that the grant of permission to have the presence of an advocate, at visible, but not audible, distance, which is an exception, does not become the rule. 18. A person, to whom summons have been issued u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." (Emphasis supplied) 19. In order to satisfy ourselves, regarding the reasonableness of the petitioner's request, we queried, of Ms. Manish, in that regard, whereupon she submits that, during the course of proceedings before the learned Metropolitan Magistrate, her client was surrounded by several officers of the DRI, who served, on him, summons to appear, so that his statement could be recorded. This, she submits, has created apprehensions, in her client's mind, of possible coercion, if and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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