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TMI Blog2024 (2) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... re carrying some contraband goods, instead of the goods, which were declared in the Import General Manifest ('IGM', in short). On receipt of such an intelligence input, the consignments in question were ordered to be put on hold, till the transshipment permission is given by the Customs Authority. It, however, appears that out of the total three containers, two containers bearing Nos. DRYU9982719 and NLLU4207620, were transferred to Inland Container Depot ('ICD', hereinafter), Bangalore, whereas, the container bearing No. TGHU9180934 was transferred to Chennai Port. 3.1 Subsequently, when the containers in question were traced and were opened, they were found to be carrying areca or beetle nuts, instead of grinding wheels, as was declared in IGM and bill of lading by its importer, namely M.S.K. Engineering Works, and therefore, the same came to be confiscated, as per the provisions of Section 111 of the Customs Act, 1962 ('Customs Act', hereinafter). 3.2 Pursuant to the same, Respondent No. 1-DRI initiated, as stated above, an inquiry. During the course of recording of statement of one Mr. Satish Kumar T., in connection with the aforesaid inquiry, he admitted that he received the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssman, the petitioner might have inquired about the consignment of areca or beetle nuts, but, by that act, itself, it cannot be said that the petitioner is involved in the offence punishable under Section 135 of the Customs Act. 4.1 It was submitted that, even as per the case of the prosecution, it was Mr. Satish Kumar T., who had made arrangements for the credentials of M.S.K. Engineering Works to import the areca or beetle nuts, under the pretext of importing grinding wheels. Mr. Satish Kumar T. was assigned work of customs clearance and other related documents. It was submitted that out of total three containers, two containers bearing Nos. DRYU9982719 and NLLU4207620, were seized at Inland Container Depot, Bangalore, whereas, the third container bearing No. TGHU9180934 was intercepted at Chennai Port. In view of that the petitioner nowhere appears in the offence said to have been committed under Section 135 of the Customs Act. 4.2 It was submitted that what can be gathered from the complaint filed by Respondent No. 1-DRI before the learned Metropolitan Magistrate is that the present petitioner allegedly introduced himself, sometimes as Aakash and other times as Abbas Gulamhus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said to be without jurisdiction? iii. Whether the Customs/DRI Officers are police officers and, therefore, are required to register FIR in respect of an offence under Sections 133 to 135 respectively of the Customs Act, 1962? iv. Whether the provisions of Sections 154 to 157 respectively and 173(2) of the Code of Criminal Procedure, 1973 would apply in respect of the proceedings under the Customs Act, 1962, in view of Section 4(2) of the Code and whether in respect of the offences under Section 133 to 135 respectively of the Customs Act, 1962, the registration of the FIR is mandatory before the person concerned is arrested and produced before the Magistrate?" 4.5.1 It was submitted that, since, the aforesaid questions are pending before the Hon'ble Apex Court for consideration, the question would arise as to whether, Respondent No. 1-DRI has an authority to issue summons under Section 108 of the Customs Act to the petitioner or not, and hence, the present petition is maintainable. 4.6 Referring to the decision of the Hon'ble Apex Court in the case of 'Shri Gurubaksh Singh Sibbia and Others Vs. State of Punjab', reported in (1980) 2 SCC 565, it was submitted that the registrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was submitted that the maximum punishment, which may entail on successful conviction, is less than seven years and therefore, the guidelines issued in the case of 'Arnesh Kumar v/s. State of Bihar', reported in (2014) 8 SCC 273, shall apply in the case of the petitioner. 4.10 The above submissions are made to indicate that the petitioner has reasonable apprehension that he will be arrested, under the pretext of calling him for recording his statement, by issuing Summons under Section 108 of the Customs Act and therefore, it was prayed that this petition be allowed. 4.11 To buttress the submissions made herein above, learned Sr. Advocate, Mr. Barot, has also placed reliance on the following decisions; (1) 'Arun Kumar Gupta Vs. Director of Revenue Intelligence', 2008 (101) DRJ 395; (2) 'Rajesh Ramjibhai Kundariya Vs. State of Gujarat', 2016 SCC OnLine Guj 10144; (3) 'Parth Narendrabhai Shah Vs. State of Gujarat and Others', 2019 SCC OnLine Guj 537; (4) 'Chaman Kumar Shah Vs. Union of India and two Others', Criminal Misc. Bail Application No. 5031 of 2020, Allahabad High Court; (5) 'Anand Navalchand Pugliya Vs. Union of India Through Intelligence Officer Lko.', Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me cannot be brushed aside by simply stating that it is the statement made by a co-accused and recorded by the IO. 5.2 It was submitted that the conundrum, as to whether, the present petitioner is Aakash or he is actually Abbas Gulamhusen Hariyani is required to be solved. It is to be unearthed that who is impersonating, whether Aakash or Abbas Gulamhusen Hariyani. Further, there are two firms have been registered by the petitioner, namely Adarsh Trading and Akash Trading, and he has obtained two different GST numbers for them, however, their address is shown to be the one and the same. It is, therefore, submitted that with a view to clear the aforesaid conundrum, when the petitioner is repeatedly being called, by issuing summons under Section 108 of the Customs Act, by Respondent No. 1-DRI, the petitioner is bound to comply with the same. However, the petitioner has been continuously avoiding and averting the same, though, as many as five summonses have been issued to him. It was, further, submitted that as the officers of Respondent No. 1-DRI are acting within their statutory powers, the petitioner has to comply with the same and cooperate in the investigation. 5.2.1 It was sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence, his arrest is eminent and therefore, this petition is maintainable and he has valid apprehension that the statement given by the co-accused, Mr. Satish Kumar T., shall be made the basis for his arrest. It was reiterated that the petitioner is ready and willing to cooperate with the investigating agency and the fact that the petitioner has answered all the five summonses issued to him, shows bona fide on the part of the petitioner. He also tried to distinguish the judgment rendered by the Coordinate Bench of this Court in Criminal Misc. Application No. 5176 of 2020, Dated: 25.06.2021, and submitted that the Coordinate Bench of this Court, committed an error by relying on the decision of the Apex Court in 'Union of India vs. Padam Narain Aggarwal and Others' (Supra). It was submitted that 'Union of India vs. Padam Narain Aggarwal and Others' (Supra), the Apex Court had not approved the order of the High Court that there shall be no arrest without giving ten days' prior notice to the concerned accused person, as no such orders can be passed, either while exercising the powers under Section 438 of the Code or under any other law for the time being in force and therefore, the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e powers under Section 104 of the Customs Act, it is held as under at Paragraphs- 36 to 40 thereof ; "Safeguards against abuse of power 36. From the above discussion, it is amply clear that power to arrest a person by a Custom Officer is statutory in character and cannot be interfered with. Such power of arrest can be exercised only in those cases where the Custom Officer has `reason to believe' that a person has been guilty of an offence punishable under Sections 132, 133, 135, 135A or 136 of the Act. Thus, the power must be exercised on objective facts of commission of an offence enumerated and the custom officer has reason to believe that a person sought to be arrested has been guilty of commission of such offence. The power to arrest thus is circumscribed by objective considerations and cannot be exercised on whims, caprice or fancy of the officer. 37. The section also obliges the Custom Officer to inform the person arrested of the grounds of arrest as soon as may be. The law requires such person to be produced before a Magistrate `without unnecessary delay'. 38. The law thus, on the one hand, allows a Custom Officer to exercise power to arrest a person who has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e person summoned to state truth upon any subject respecting which he is examined. He is not absolved from speaking truth on the ground that such statement is admissible in evidence and could be used against him. The provision thus enables the officer to elicit truth from the person examined. The underlying object of Section 108 is to ensure that the officer questioning the person gets all the truth concerning the incident. 40. As held by Constitution Bench of this Court in Ramesh Chandra Mehta v. State of West Bengal, (1969) 2 SCR 461, a person called upon to make a statement before the Custom Authorities cannot be said to be an accused of an offence. It is, therefore, clear that if a person is called upon to make a statement under Section 108 of the Act and summon is issued for the said purpose, he is bound to comply with such direction. This view has been reiterated in several cases thereafter." 8.2 An useful reference can be made to the judgment of the Hon'ble Apex Court in the case of 'Veera Ibrahim Vs. State of Maharashtra', reported in 1976(2) SCC 302. Relevant Paragraphs 5 to 9 thereof, read as under; "5. Clause (3) of Article 20 provides: "No person accused of any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g penalties. The Customs officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act with the commission of any offence. His primary duty is to prevent smuggling and to recover duties of customs when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea Customs Act he is not accusing the person of any offence punishable at a trial before a magistrate". 8. After a survey of case law, the Court pointed out the circumstances, the existence of which is ordinarily necessary to clothe a person with the character of a "person accused of an offence": "Normally a person stands in the character of an accused when a First Information Report is lodged. against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial the offence. Where a Customs officer arrests a person and informs that person of the grounds of his arrest (which he is bound to do under Art. 221) of the Constitution for the purpose of holding an enquiry int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.] (2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a magistrate. (3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police-station has and is subject to under the Code of [Criminal Procedure, 1898 (5 of 1898)] [ Now see the Code of Criminal Procedure, 1973 (2 of 1974).]. (4) Notwithstanding anything contained in the Code of [Criminal Procedure, 1898 (5 of 1898)] [Now see the Code of Criminal Procedure, 1973 (2 of 1974).], an offence under this Act shall not be cognizable." 8.5.1 Thus, Section 104(1) of the Customs Act provides that, if, a customs officer has a reason to believe that, any person in India or within the Indian customs waters has committed an offence punishable under section 132 or section 133 or section 135 or section 135-A or section 136, he may arrest such person and shall, as soon as may be possible, inform him of the grounds for such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such 'blanket order' should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device is secure the individual's liberty' it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed." 8.7 The coordinate Bench of this Court in its order dated 25.06.2021, passed in Criminal Misc. Application No. 5176 of 2020, has observed as under at Paragraph-8 thereof; "[8] Thus, as per the law promulgated by the Apex Court the Summons under Section 108 of the Custom Act is only issued for recording the evidence and the High Court cannot direct the respondent authorities not to arrest such accused, as the anticipatory application would be prematu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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