TMI Blog2020 (6) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... exit the gate of customs and such incident was informed to the jurisdictional police station by the Assistant Commissioner of Customs by filing a complaint on 22nd March, 2019. The said complaint was not only against the writ petitioners but also against some unknown police officers who assisted the writ petitioners. The complaint was filed on 22nd March, 2019 is a undisputed fact - The customs authorities had filed the complaint on 22nd March, 2019 and after the complaint was filed, the police has acted upon the same by taking magisterial approval under section 155 of the Code of Criminal Procedure. Thus, the customs lost its jurisdiction to inquire any further in respect of the complaint and is restrained from making parallel inquiry. Section 108 of the Customs Act clearly mandates that proceedings under section 108 is quasi judicial in nature. The person issuing summons has to satisfy qualitative ingredients as prescribed in Section 108 of the Customs Act. In this case, the Additional Commissioner, AIU NSCBI Airport, Kolkata who has issued the summons dated 26th March, 2019 to the petitioners is not the inquiry officer and he has not formed any opinion regarding attendance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Station GD Entry 800 dated 22nd March, 2019 at 23:15 hours is reproduced below: 1. At the marginally noted time one Mr. S. K. Biswas, Assistant Commissioner of Customs, Air Intelligence Unit, NSCBI Airport, Kolkata - 700 052 called at the P.S. and submitted a written information alleging allegations under Section 186/503 of Indian Penal Code read with Section 133 of the Customs Act, 1962 which is reproduced as below. In the intervening night of 15/16th March 2019 at about 1:10 AM, two lady passengers, while passing through the green channel, having arrived at NSCBI Airport, Kolkata from Bangkok by Thai Airways Flight No. TG 313 dated 16.03.2019, were requested by Customs official to show their respective passports. Those two lady passengers named Ms. Rujira Naroola and Ms. Menka Gambhir were randomly selected, considering their movement, profile, the number and size of the baggage they were carrying. These two lady passengers declined to show their passport in spite of several requests which arose suspicion and accordingly, they were requested to put their baggage for scanning in the X-ray machine installed near the green channel, which they again declined. Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came and asked the Customs officers to allow both the ladies to go immediately, without checking their baggage, otherwise they may face problems. However, despite this pressure, the second suspected bag was opened at Counter No. 4 in which two sets of Jewellery (Kundan) were found. 4. Enquiries revealed that Flight TG-313 had landed at 12:40 A.M. on 16.03.2019 and at about 01:50 A.M. on 16.03.2019, a phone call was received from O.C. Airport Police Station on the mobile phone of Shri Jitendra Prasad, APRO on duty(8789580789), after it was diverted from the land line of the PRO Customs (033-2511 8053), enquiring if Ms. Rujira Naroola, said to be wife of Shri Abhishek Banerjee, MP was detained by Customs and if so, she should be released immediately. The matter was communicated immediately both to the Batch D.C., Shri D. Roy and to A.C., A.I.U. Shri S. K. Biswas. Another phone call was received by the PRO Customs from the West Bengal Police Protocol Cell location at the Airport with the same request and the same disclosure of status of the said two lady passengers. The S.I. Airport P.S. along with one constable in uniform and one lady constable in civil dress were physically pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Arup Roy Chowdhury, one of the police personnel present in the meeting, informed that they were in receipt of one complaint against Customs Officials, from one lady who had arrived from Thailand in the early morning of 16.03.2019, alleging misbehavior, harassment, undue detention and extortion of money for clearance of her luggage. He specifically enquired about three officers of Customs namely, Shri S.K. Biswas, Shri Koshalesh Singh and Smt. Pratibha Meena, who were on duty during the incident. They did not divulge the name of the complainant but made it clear that the complaint is related to the incident, for which they had intervened in the early morning of 16.03.2019. 9. The police personnel proposed preparation of a common SOP, which may include easy passage of their VIPs without any interception by Customs in the Green Channel. They added that if there would be any such complaint in future, that would be viewed seriously and severe action will be taken against the concerned Customs Officials, which may include arrest detention of the officer concerned. They wanted an SOP, where VIPs are not checked. The Police Officers were informed in the said meeting that Customs wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as investigation into the commission of non-cognizable offence could not be completed by the police authorities. 3. After filing complaint before the police, the Joint Commissioner of Customs, AIU, NSCBI, Airport, Kolkata being the respondent no. 3 in the instant application issued summons dated 26th March, 2019 to both the petitioners and the summons are reproduced below: GOVERNMENT OF INDIA OFFICE OF THE PRINCIPAL COMMISSIONER OF CUSTOMS (A A) NSCBI AIRPORT, KOLKATA-700052 (SUMMONS UNDER SECTION 108 OF THE CUSTOMS ACT, 1962) F. No. S. 32 (Misc)-15/2019 AP/4831 Dated- 26.03.2019 To, Ms. Rujira Naroola, Holder of OCI No. A2879448, 30/B, Harish Chatterjee Street, Kolkata- 700 026. Sub: Issuance of Summons under Section 108 of the Customs Act, 1962. I have been directed to issue summons to you under Section 108 of the Customs Act, 1962, to appear before the Additional /Joint Commissioner of Customs on 08th April, 2019 at 12:00 hours at the office chamber of the Additional Commissioner of Customs (Airport Administration), Custom House, 15/1, Strand Road, Kolkata in person, in connection to the offence under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said written information was entered into the General Diary and numbered as NSCBI Airport PS G.D.E No. 800 dated 22/3/2019 (P.33).On March 23, 2019 and the jurisdictional police authorities made a prayer before the Ld. Magistrate for investigating into offences. The Ld. Magistrate passed an order permitting the police authorites to investigate into the offence and the investigation is in progress. Statements of several witnesses u/s. 161 of Cr. P.C have been recorded. CCTV footage has been obtained from the airport authorities but suddenly on March 26, 2019, the Customs authorities issued summons u/s. 108 of the Customs Act to the petitioner in connection with the offence under Section 133 of the Customs Act, 1962. Ld. Additional Advocate General further submits that the explanation to the definaition of complaint contained in Section 2 (d) of Cr. P.C provides that a report made by a police officer in a case which discloses, after investigation, the commisision of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. Section 2(r) of Cr. P.C. defines police report to mean a report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate, the Customs authorities are denuded of their authority to make enquiry in connection with the offence under Section 133 of the Customs Act, 1962. 5. Mr. Sujit Ghosh, Ld. Counsel appears for the petitioner Menka Gambhir in W. P. No. 7865(W) of 2019 and Mr. S.N. Mukherjee, Ld. Senior Counsel appears for the petitioner Rujira Naroola in W. P. No. 7489 (W) of 2019. 6. Mr. S.N. Mukherjee, Ld. Senior Counsel for the petitioner, Rujira Naroola raises two questions namely: a) The summons issued under Section 108 of Customs Act, 1962 was beyond jurisdiction and contrary to the Act; and b) The respondent Customs had no power to conduct any inquiry and/or investigation after filing the complaint dated 22nd March, 2019 before the police. Customs cannot Investigate the Petitioner after having filed the Information/Complaint on 22nd March, 2019 and after the policce has acted upon the same by taking approval of the Magistrate under Section 155(3) Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC ). The customs cannot investigate any further for the following reasons: (a) they have formed their mind by conducting an internal enquiry and have come to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is confined to Section 133 of the Act for deciding on penalty under Section 117 of the Customs Act, 1962. Therfore, by their acts and deeds the customs has abdicated the power to investigate to the police . Hence, the customs cannot file a separate complaint under Section 200 of the CrPC. To bolster this argument the petitioner relies upon Section 2(r) and Explanation to Section 2(d) of the CrPC. Section 2 (r) of Cr. P.C. defines police report as In this Code, unless the context otherwise requires a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173 . Section 2(d) of Cr. P.C. defines complaint as In this Code, unless the context otherwise requires any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report . The explanation to S. 2(d) of the Cr. P.C. provides that a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be contravened. Contravention can only happen when there is a duty cast or an obligation . However, the language of Section 133 does not prescribe any such obligation/duty nor can there be any contravention of the provision. It is applicable only where no penalty is prescribed in such provision of the Act. Assuming without admitting that in addition to Section 133, customs can impose a penalty under Section 117, even then such a levy of penalty could take place only when there has been an adjudication of whether the offence under Section 133 has been committed. Mr. Mukherjee, Ld. Senior Counsel refers to Section 108 of the Customs Act, which is as follows: 108. Power to summon persons to give evidence and produce documents (1) Any gazetted officer of customs duly empowered by the Central Government in this behalf, 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.] Thus the necessary elements of a valid summons under Section 108 are: (a) a gazetted officer must conduct the inquiry himself; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Senior Counsel further submits that in order to bolster their case that the Summons is concerning penalty under Section 117 of the Act, the Customs has falsely relied on Section 26 of the General Clauses Act. This reliance is completely misplaced and illegal. Section 26 of General Clauses Act states that when the act constitutes an offence under two or more enactments, then it can be proceeded with simultaneously. However, Sections 117 and 133 are of the same Act and therefore such argument hold no water. Similarly, the customs has erroneously relied on Section 4(2) of the Cr. P.C. There is no doubt that the customs has the authority to investigate offences under the Act. However, in the instant case they have already investigated and thereafter have abdicated their right to further investigate and complain to the magistrate in favour of the police. In any event, as mentioned above, the customs Act (special law) provides that the adjudication of the offence will be in accordance with the Cr.P.C. After the filing of the police information/complaint the petitioner has become an accused and is granted protection of Article 20(3) of the Constitution of India to not give evidence agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the Ld. Additional Solicitor General, issuance of summons is purely an administrative act and is neither quasi-legislative nor quasi-judicial. The summons, by themselves even while affecting the person summoned do not decide any issue and are merely investigatory in nature to take another administrative action. The satisfaction is subjective as long as there are prima facie grounds satisfying the need to issue summons. The involvement of senior custom officers in the process of invocation of Section 108 of the Customs Act, 1962 to assume in themselves the jurisdiction and proceeded to complete what had been interrupted at the Airport cannot much be justified. In other words, there being reasonable grounds for thinking that issuance of summons are necessary, the justification and adequacy of the same cannot be made subject of judicial review. Section 5(2) of The Customs Act, 1962 has to be read with Section 108 and any Gazetted Officer could resume the inquiry conducted by a subordinate officer of customs and issue summons to any person, he considers necessary. Similar exercise of power has been approved by the Hon ble Supreme Court in R.P. Kapur and Others vs. Sardar P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Customs Act, 1962. The expression should be understood in contradistinction to into . In connection to , shows that it may include matters both prior to as well as subsequent to or consequent upon as long as they relate to the principal thing. The obstruction having aborted the inquiry, the same was initiated under the summons and merely because it was subsequent to the obstruction would not make it in any way unconnected to the same so as to attract any legal inhibition about the process. The expression in connection with merely requires some nexus or link and where such nexus or link, no matter how loose exist, everything ancillary and incidental to that in connection with which the summon is issued would be covered by it. Obstruction of an officer on duty is punishable both under the IPC, 1860 and The Customs Act. Prosecution is distinct from adjudication and Section 127 of The Customs Act, 1962 itself shows that the award of confiscation and penalty under the Act would not prevent infliction of punishment under Chapter XVI of the Customs Act, 1962 or under any other law. Consequently, it is open to the Customs Authorities to adjudicate on confiscation and penalty, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ean that the police would investigate the same due to the reason that an offence under Section 133 of the Customs Act, 1962 can only culminate into a complaint under Section 137 of the Customs Act, 1962 in which the police has no role. In making the submission aforesaid, the argument does not travel beyond the summons and is on the contrary relatable directly to it and arises from the very terms in which the same has been issued. Reliance on Article 20(2) of The Constitution of India by the petitioners are also utterly misconceived as the Customs Authorities are not Judicial Tribunals and adjudging of confiscation, increased rate of duty or penalty do not constitute a judgment or order of a Court of a Judicial Tribunal necessary for the purpose of supporting a plea of double jeopardy. To invoke Article 20(2), there must be prosecution and punishment before a Court of law or a tribunal which, admittedly the Customs Authorities are not. In any event, admittedly there has been no completed adjudication, as to require confiscation or penalty and the stage is only on the issuance of the summons which is a preliminary step and precursory to anything which may or may not follow, includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rform all acts himself as contemplated under Section 108 and such a senior cannot partly exercise certain aspects of 108 leaving the rest upon other officers. c) Section 5(2) does not allow an officer, who having taken over the powers of his subordinate (to issue summons), thereafter, abdicates or delegates such power to a third officer. In the instant case, the superior officer had taken over the power to issue summons, having formed the necessary opinion to carry out investigation, then he could not have delegated the investigation per se to a third person who is a subordinate officer. d) It is trite in law that when a Statute provides that power must be exercised in a certain manner, then such power has to be wielded in the same manner and none other e) Section 5(2) of the Customs Act deals with legitimate usurpation of power for administrative exigencies in a situation when a subordinate officer is not available, in order that his absence does not prevent the process from being hampered. However, once power has been assumed pursuant to Section 5(2), the exercise of such power (by the legitimate usurper) has to follow the statutory provisions, which conferred the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 155(3) code of criminal procedure, 1973. The Customs cannot investigate any further for the reasons that, after having formed their opinion (by conducting an internal enquiry) and having come to a conclusion that there is no iota of doubt that the petitioner has violated the provisions of Section 133, they have approached the police by filing a written information. Once that process has been commenced and approval of the Magistrate obtained, then by virtue of Section 138 of the Customs Act, the Customs Authorities must now cease and desist from making a parallel enquiry. From a perusal of the police information/complaint and the internal documents of the customs, the complainant Customs Officer have made it unequivocally clear that the offence that the petitioner and her sister are purportedly guilty of is under Section 133 of the Act and nothing else. There are admissions in these documents that: (i) all bags were checked and no contraband was found; (ii) petitioner and her sister were allowed to leave through the green channel (iii) clearance of the petitioner and her sister was made peacefully . After exchange of multiple incident reports su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition it is unequivocally clear that prior to filing the police information/complaint the commissioner of customs had provided his sanction to seek magisterial intervention by approaching the police and therefore the Customs had already taken steps under Section 133 of the Act. (c) Section 108 of the Act contemplates inquiry by the customs by collecting evidence from the summoned, thereafter, an opinion is formed by the customs and thereafter prosecution is launched. In the present case, the very fact that the sanction from the Commissioner of Customs was obtained before the Customs approached the Police, goes to show that the very act of approaching the police was for the purpose of launching the prosecution, since the sole purpose of obtaining such approval of the Commissioner of Customs was to meet the requirement of Section 137, which provides that no court can take cognizance of an offence unless previous sanction of the Commissioner or Customs has been obtained. (d) The offences complained off in the police information/complaint being non-cognizable offences the police was required to take permission of the magistrate under Section 155(2) of the Cr. P.C. Once the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re no penalty is prescribed in such provision of the Act. ii. The authority was never precluded from initially writing other provisions of law and alleging such contravention by the petitioner. However, no such allegation of Section 117 exists. The summon issued under Section 108 for an offence under Section 133, cannot be expanded for making roving enquiry. Roving enquires in case of summons etc. are impermissible in law. In order to bolster their case that the summons issued pertained to imposition of penalty under Section 117 of the Act, Customs has erroneously relied on Section 26 of the General Clauses Act. Section 26 of General Clauses Act states that when the act constitutes an offence under two or more enactments then it can be proceeded with simultaneously. However, Sections 117 and 133 are of the same Act and therefore such argument hold no water. Similarly, the customs have erroneously relied on Section 4(2) of the Cr.P.C. for the above purposes. Admittedly the said provision of the CrPC provides that provisions of the special law would apply. However, on application of the special law (i.e. the Customs Act), the customs would be forced to revert back to the Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 175 , even a GD entry can also be treated as an FIR if cognisable offence is present. Therefore, this in itself goes to establish that if GD entry is good enough a document to be treated as an FIR and an FIR makes a person accused, then the route adopted in the present case i.e. filing of information under Section 155 (i.e. through GD entry) can also make a person an accused, regardless of the fact that the complaints/allegations made therein are non-cognisable in nature. According to the learned, summons can only be issued to a person with respect to an ongoing inquiry being conducted under Customs Act. However, in the instant case it is an admitted fact that on conclusion of their enquiry and on finding that there is no iota of doubt that the petitioner had violated provision of Section 133 of the Customs Act, the Customs had approached the Police. This is evident from the police information/complaint. Further, this also demonstrates that no internal enquiry was pending, and the customs was unequivocal about its opinion that the petitioner was guilty of offences under Section 133 of the Act, and Sections 186 and 503 of the IPC. During the course of their arguments, Respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , affidavit-in-opposition and affidavit-in-reply. 10. The Commissioner of Customs on 26th March, 2019 prima facie formed his opinion to enquire and seek presence of the petitioners in connection to an incident that occurred on the night of 15/16th March, 2019 and sought aid in enquiry directing Joint/Additional Commissioner of Customs, AIU, NSCBI, Airport, Kolkata to issue summons to the petitioners and the petitioners were directed to appear before Additional Commissioner of Customs (Airport Administration) on 8th April, 2019 for giving evidence and/or produces documents or things in relation to the incident which occurred on 15th /16th March, 2019. 11. Two contested and irreconcilable version of an event was placed before me which occurred on the night of 15th / 16th March, 2019 and has to be inquired into by a competent authority. The two contested and irreconcilable versions are as follows: a) Two lady passengers, the petitioners herein, while passing through the green channel having arrived at NSCBI Airport, Kolkata, refused to show their passports and refused to subject themselves to the procedures as laid down in customs Act. b) The lady passengers/ writ petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent which occurred inside the Customs Airport as defined in section 2 of the Customs Act. 14. However, Section 108 of the Customs Act clearly mandates that proceedings under section 108 is quasi judicial in nature. The person issuing summons has to satisfy qualitative ingredients as prescribed in Section 108 of the Customs Act. In this case, the Additional Commissioner, AIU NSCBI Airport, Kolkata who has issued the summons dated 26th March, 2019 to the petitioners is not the inquiry officer and he has not formed any opinion regarding attendance of the petitioners and he has only directed the petitioners to appear before another Additional Commissioner (Airport Administration) Customs, who is also not the inquiry officer. But when a statute provides that the power under Section 108 of the Customs Act must be exercised in a certain manner, then such power has to be wielded in the same manner and none other. For the above reasons the summons dated 26th March 2019 issued to the petitioners are quashed and set aside. 15. With the above observations the Writ Petition being Nos.W.P. 7865 (W) of 2019 and W.P. 7489 (W) of 2019 are disposed of. No order as to cost. U ..... X X X X Extracts X X X X X X X X Extracts X X X X
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