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TMI Blog1985 (3) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... to believe that the appellant is guilty of an offence under Section 135 of the Customs Act arrested him at 10 a.m. on 5-1-1985, under Section 104(1) of the Customs Act and produced him before the Magistrate the same evening at 3-30 P.M. The appellant thereafter was released on bail on the same day. In the affidavit filed in support of the writ petition, the appellant had stated that when he was in the Air Port at Madras on the 3rd of January, 1985, with a clearing agent, he was called by the Director of Revenue Intelligence Officials and taken to Air cargo Complex, and from there he was taken to their office in T. Nagar, Madras-17. He was taken inside a room and surrounded by two officers and other employees of the Department and was interrogated by them throughout the night. They did not allow him to sleep nor even to sit. He was severely beaten and ill treated and kept in unlawful detention till 5-1-1985 and forced to subscribe to statement made against his will. During the above period, he was not allowed to contact anybody including his advocate in spite of specific request. In fact, it was his case that his advocate was searching for him from 3rd of January, 1985 onwards, went ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the smuggling of any goods to require any person to produce or deliver any document or thing relevant to the enquiry and to examine any person acquainted with the facts and circumstances of the case. Section 108 gives power to any gazetted officer of customs 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 in connection with the smuggling of any goods. Clause (3) of Section 108 further provides that all persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct and that all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produced such documents and other things as may be required. These provisions, therefore, enable a customs officer to summon any person to give evidence or for the purpose of interrogation in connection with any enquiry which such officers is making in, connection with the smuggling of any goods. Neither these provisions in section 107 nor Section 108 nor any other provision in the Act or the rules fram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, Tamil Nadu, Public Dept., etc. - 1984 (15) E.L.T. 289 =(1983 Law Weekly Criminal page 289) in paragragraph 48 observed : "If, in a given case, the Customs official detains any person required or summoned under the provisions of the Customs Act for a prolonged period, even exceeding twenty-four hours, or keeps him in closed doors as a captive prisoner surrounded by officials or locks him in a room or confines him to an office premises, he does so at his peril because Ss. 107 and 108 of the Customs Act do not authorise the officer belonging to the Customs Department to detain a person for a prolonged custody and deprive him of the elementary facilities and privileges to which he is entitled. In such a situation, the officer must be held to have over-stepped his limits, and any confessional statement obtained from such a person by keeping him in a prolonged custody has to be regarded with grave suspicion, because there is always room for criticism that such a confession might have been obtained from extorted mal-treatment or induced by improper means. As pointed out by the Supreme Court in Nathu v. State of Uttar Pradesh - (A.l.R. 1956 S.C. 56), the prolonged custody may stamp th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where such supportive skill is absent for one side." Legal aid was considered as an inalienable element of fair procedure and Article 39-A requiring every State to secure equal justice and free legal aid is interpretative tool for Article 21. They further held that personal liberty cannot be cut out or cut down without fair legal procedure. All these forcible observations of the Supreme Court were made with reference to the right of appeal to a convicted prisoner and his right to be provided with every facility for exercise of his right of appeal or revision and not in regard to any interrogation or examination of a person in pursuance of a summons under Section 108 who at that time cannot even be considered to be a person in custody much less a person accused of any offence. In Francis Coralie v. Union Territory of Delhi (A.1.R. 1981 S.C. 746) the Supreme Court considered the validity of the conditions of detention order dated 23-8-1975 issued by the Delhi Administration with reference to a person who was detained under the preventive detention provision in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. After pointing out that the right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted under Section 108 may be a person involved in the commission of any offence or may be a person who only knows some facts or about somebody else committing it, who is in the nature of a witness unconnected with the offence. In the nature of things the investigation will have to be discreet and secret and therefore the only thing that is expected is the procedure adopted in the matter of examination or interrogation should be reasonable and not arbitrary and as held by the Supreme Court, no law which authorises and no procedure which leads to torture, cruel, inhuman and degrading treatment can ever stand the test of reasonableness and non-arbitrariness. As already stated, Section 108 does not authorise any such torture or cruelty or inhuman treatment. The decision in A.K. Roy v. Union of India (A.1.R. 1982 S.C. 710) relied on by the learned Counsel, in our opinion, also is of no assistance. That decision related to the right of a detenu who was detained under the National Security Act to be represented by a lawyer before the Advisory Board constituted under that Act. Of course, the ratio of the judgment is to the effect that a right to legal assistance is also part of Articles 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable for consultation to any accused person under circumstances of near-custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice." (emphasis ours). Therefore, this right of a person to have his lawyer's presence during interrogation has to be tested only with reference to his right against self-incrimination. In one of the earliest cases in R.C. Mehta v. West Bengal (A.I.R. 1970 S.C. 940) with reference to a statement recorded by an officer of the customs in an enquiry under Section 171-A of thu Sea Customs Act corresponding to Section 108 of the Customs Act, 1962, the Supreme Court observed : "Under Section 171-A of the Sea Customs Act, a customs officer has power in an enquiry in connection with the smuggling of goods to summon any person whose attendance he considers necessary, to give evidence or to produce a document or any other thing, and by clause (3) the person so summoned is bound to state the truth up on any subject respecting which he is examined or makes statements and to produce such documents and other things as may be required. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 S.C.C. 302) which was a case under Section 108 of the Customs Act, 1962. We may also notice in this connection the following two decisions reported in Ashadevi v. K. Shivraj (A.I.R. 1979 S.C. 447) and Sevantilal v. State ot Maharashtra (A.I.R. 1979 S.C. 705). In Ashadevi v. K. Shivraj (A I.R. 1979 S.C. 447), a detention order under Section 3 (1) of COFEPOSA, 1974 was made against one Gopal Ghermal Mehta on the ground that it was necessary with a view to preventing him from engaging and transporting smuggled goods. The grounds of detention were served on the detenu. It was stated in the grounds that on receipt of certain information the officers of the customs kept a watch for a Fiat car and the said car with five occupants was intercepted near a railway crossing and the occupants which included the detenu and 4 others were taken to the Customs Divisional Officer for examination. The detenu and the other occupants denied that they were carrying any smuggled gold or prohibited articles; but, on a search, of one of the occupants, a large quantity of gold bars with foreign markings were recovered. Two statements were recorded, one statement on that day itself and another the next day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order, the Supreme Court considered whether the non-communication to the detaining authority that during interrogation of the detenu in spite of request neither the presence of nor the consultation with an Advocate was permitted would vitiate the order. Though the Supreme Court quoted the passage in Nandini Satpathy's case (A.I.R. 1978 S.C. 1025) which we have extracted above and said that owing to some misconception of the legal position the request for the presence/consultation of a lawyer was turned down, it did not hold that there was a Constitutional guarantee even during interrogation under Section 108 of the Customs Act to have the presence of a lawyer; but that the detention order is vitiated by the fact that this vital fact of refusal to permi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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