TMI Blog2007 (7) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... uashing and setting aside the orders dated 23.04.2007 and 14.05.2007 passed by the learned Metropolitan Magistrate in Criminal Case Nos. 2 1 of 2007. In pursuance of an amendment granted by this Court on 01.06.2007, the petitioners have also made additional prayer for issuance of writ of mandamus and/or writ of prohibition and/or any other appropriate writ, order or direction declaring Section 108 of the Customs Act, 1962 ultra vires to Article 14 of the Constitution of India to the extent that it requires person residing far away to attend to a summons to give evidence or to produce documents, issued under Section 108 of the Customs Act, 1962. 3. It is the case of the petitioners that they had done business with M/s. Krishna Trading Company, M/s. Nirmal Polyester Pvt. Ltd., M/s. Meenu Exim Pvt. Ltd. and M/s. Pradeep Kumar Nirmal Kumar on High Seas sale basis. The petitioners had received full payment of all the goods sold on High Seas sale basis. It is also their case that once the goods are sold to the Indian buyer, it is the duty of the buyer to comply with the custom provisions and to pay the custom duty and/or to fulfill the terms and conditions under which the goods are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, inter alia praying to quash and set aside Criminal Case Nos. 2 1 of 2007 and challenging the orders passed therein. 6. Mr. S.V. Raju, learned advocate appearing with Mr. Chetan K. Pandya for the petitioners has submitted that even if the allegations mentioned in the Criminal Cases are accepted to be true in their entirety, without admitting the same to be true, then also prima facie no offence, much less an offence punishable under Sections 174 175 of IPC is made out against the petitioners. On plain reading of the criminal case Nos. 2 1 of 2007, it is manifest that none of the ingredients of Sections 174 175 of the IPC are satisfied and therefore, no prima facie case is made out against the petitioners. The learned Metropolitan Magistrate has not followed the mandatory requirement of Section 202 of the Criminal Procedure Code when the accused is residing at a place beyond the area in which he exercises his jurisdiction. It is mandatory requirement under Section 202 to postpone the issue of process against the accused where the accused is residing at a place beyond the area in which he exercises his jurisdiction and in such a case, the Magistrate has either to inqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther submitted that even the summons issued to the petitioners to give evidence and/or to produce documents did not say that the inquiry initiated against the High Seas Sale purchase is for smuggling of goods. On the contrary, the petitioners registered all the goods with import department as the petitioners sold the goods in High Seas sale. The petitioners have nothing to do with the diversion of imported Polyester Yarn as the petitioners had sold goods on High Seas sale. Once the goods are sold on High Seas Sale, the petitioners had nothing to do with those goods. It is the duty of the High Seas Sale purchaser to observe the terms and conditions of the advance license and/or to make the payment of the Custom duties as the buyer becomes real importer. He has further submitted that there was no intention on the part of the petitioners to disobey the summonses or to avoid the summonses issued by the respondent No. 2. However, because of the circumstances beyond their control, the petitioners could not travel to Ahmedabad and made available all the documents to the respondent No. 2 and had shown their willingness to appear before the DRI Office at Ludhiana and to give evidence. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Raju has relied on the decision of this Court in the case of Dipak Navnitlal Parikh and Ors. v. The State of Gujarat and Anr. 1995 (1) G.L.H. (U.J.) 25 wherein the Court held that upon a joint reading of the provisions contained under Section 204 and Section 87 of the Code, it becomes abundantly clear that in any case in which the Court is empowered under the Code to issue a summons for the appearance of any person, the warrant may be issued by the Court instead of a summons, if the Court sees reason to believe that such a person has absconded or will not obey the summons. 11. Mr. Raju has further relied on the decision of the Delhi High Court in the case of G. Sagar Suri v. State and Anr. MANU/DE/0678/2003 wherein it is held that bare perusal of relevant sanctions shows that to cause appearance through warrant of arrest it is mandatory for the Court to record reasons in writing and it is only in following two eventualities that such a step is resorted to. Firstly, the Court should see reasons to believe that the said person has absconded or will not obey the summons. Secondly, if such a person has failed to appear despite due service of summons upon him. Thus there is no sco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 108 of the Customs Act, 1962. In this regard, he has submitted that essentially, there is a presumption in favour of the constitutionality of an enactment unless it is found that the provision enacted results in palpably arbitrary consequences. Unless it is so shown and demonstrated, the Courts refrain from declaring the law invalid as legislated by the Legislature. In support of this submission, he relied on the decision of the Hon'ble Supreme Court in the case of R.K. Garg v. Union of India [1982]133ITR239(SC) wherein the Hon'ble Supreme Court has observed that the Court must adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse of any of its provisions come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues. 15. Mr. Raval has further relied on the decision of the Hon'ble Supreme Court in the case of Bhavesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be used against the deponent in any civil or criminal proceedings. Article 14 of the Constitution of India specifies for every one the same rules of evidence and modes of proceedings, in other words, the same rule must exist for all in similar circumstances. It is well settled principle that several laws must have universal application for all persons who are not, by nature, attainment or circumstances, in the same position. There is no hostile discrimination while dealing with the persons who are in possession of information or material which is sought to be questioned under Section 108 and all such persons are treated alike. The discrimination suggested by the petitioners by reason of an alleged protection under a different law i.e. Criminal Procedure Code is unsustainable. The Customs Act, 1962 as per its preamble is an Act to consolidate and amend the law relating to customs. The statement of objects and reasons of the Customs Act stated that the Sea Customs Act, 1878 was a law which lays down basic law relating to customs enacted more than 80 years prior to the present enactment and which was amended from time to time. The last of the important amendments were made in the Sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd some relation to the classification to the objects sought to be accomplished. The provisions of the Act leave little room for doubt that having regard to difficulties faced in cases of the contravention of provisions of Customs Act, the power to obtain the special testimony or the power to summon any person to give evidence or to produce documents from a person who is in possession of the relevant information, has a direct nexus and a just relation to the object of the enactment to prevent and check evasion of customs law. The objects sought to be achieved are to deal with violator of economic offences. He has, therefore, submitted that as per these provisions, Section 108 of the Customs Act cannot be even remotely alleged to be violative of Article 14 of the Constitution of India. The constitutional guarantee provided under Article 20(3) cannot be made a ground to urge that Section 108 is violative of the said provision on almost the same submissions which are urged by him. 18. Mr. Raval has further submitted that the petitioners have invoked the discretionary, extraordinary and highly prerogative writ jurisdiction of this Court under Article 226 of the Constitution of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the adjournment application by the Court, the petitioners have not obeyed the same and, therefore, the Court had reasonable belief that there was an attempt by the petitioners to avoid the proceedings in Court and on account of their absence, the proceedings could not be conducted further. It was under these circumstances that a warrant was ordered to be issued by an order dated 23.04.2007. Subsequent to the said order having been passed, on 14.05.2007 an application was given at Exh. 7 where also an assurance was given for remaining present despite which till this date, the petitioners have chosen not to remain present and it was under those circumstances the Court was constrained to pass the order rejecting the said application. He has further submitted that the petitioners thereafter filed Criminal Misc. Application No. 1835 of 2007 in the court of City Sessions Judge at Ahmedabad under Section 438 of Cr.P.C., praying for grant of anticipatory bail and the learned Additional Sessions Judge, Court No. 6, Ahmedabad vide his order dated 24.05.2007 has allowed the said application by directing that in the event of arrest of the petitioner, Shri Rajnishkumar Tuli in connection wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge exercising jurisdiction as coordinate Court having taken the view, it is now impermissible in law for the petitioners to seek the same relief in a different form and under the circumstances, the present petitions are nothing else but repeated attempts on the part of the petitioners to avoid appearance, firstly by avoiding response to summons and appear before the Officers and thereafter before the Court though promised and assured. 22. Mr. Raval has further submitted that the petitioners have made another attempt to avoid appearance before the Court by filing an application in Cri. Misc. Application No. 6315 of 2007 seeking extension of time to remain present before the Metropolitan Magistrate in compliance of the order passed by the learned City Sessions Court dated 24.05.2007 and as modified by this Court. The petitioner has also made an application on 29.06.2007 praying for exemption from personally appearing on 30.06.2007 on the ground that the petitioner was still not in a position to remain present before the learned Metropolitan Magistrate on 30.06.2007. 23. Even the petitioner of Special Criminal Application No. 1041 of 2007 i.e. Mr. Ruchit R. Tuli, upon his arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Mr. Raju is that though there is specific provision under Section 160(1) of the Code of Criminal Procedure 1973, with regard to recording of statements of the witnesses by the Police Officers of the adjoining police station and also there is specific provision to provide expenses if such statements are recorded at the Police Station which is far away from the residence of the deponent no such provisions are made under Section 108 of the Act. To deal with this argument, it is to be seen that there is always a presumption in favour of the constitutionality of a statute and the burden is upon the person who attacks it to show that there has been a clear transgression of the constitutional principles. This burden cannot be discharged by pointing out a provision contained in Section 160 of the Criminal Procedure Code. As a matter of fact, similar provisions are found in Section 11(3) of the Industrial Disputes Act, Section 33(3) of Insurance Act, Sections 27, 474 and 498 of the Companies Act and Sections 454(6) and (7) of the Banking Companies Act. All these sections provide for recording of evidence with due formality and these provisions are used against the deponent in any civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenge to the provision of Section 108 on the ground that the same being violative of Article 20(3) of the Constitution of India is also devoid of any merits. 26. The Hon'ble Supreme Court has considered this aspect in the case of Veera Ibrahim v. The State of Maharashtra 1976CriLJ860 and observed that when the statement of a person was recorded by the Customs Officer under Section 108, that person was not a person 'accused of any offence' under the Customs Act. An accusation which would stamp him with the character of such a person was levelled only when the complaint was filed against him, by the Assistant Collector of Customs complaining of the commission of offences under Section 135(1) and Section 135(2) of the Customs Act. It is, therefore, clear that when the Summons is issued under Section 108, he is merely called upon to give his evidence for departmental proceedings and, therefore, there is no question of it being in violation of Article 20(3) of the Constitution of India. Similarly, provisions of Section 108 of the Customs Act have also come up for consideration before the Hon'ble Supreme Court in the case of Assistant Collector of Central Excise, Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the criminal cases are filed for offences punishable under Sections 174 175 of the IPC. They are for non-appearance and/or non-production of documents in pursuance of summons issued by the Customs Officer under Section 108 of the Customs Act. The complaint gives detailed factual background about the issuance of different Summons which have not been complied with by the petitioners. The order gives an indication that before issuance of process, the Magistrate had read the complaint and the averments made therein and the complaint clearly reveals that despite issuance of summons, the petitioners did not remain present. Hence, no further inquiry was required to be made as contemplated under Section 202 of the Code. Moreover, while making the amendment in Section 202 by Criminal Procedure (Amendment) Act, 2005, it is clearly stated in notes and clauses that Sub-section (1) has been amended to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction, he shall inquire into the case himself or direct investigation to be made by a Police Officer or by such other person as he thinks fit, for finding out whether or not there was suffic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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