TMI Blog1999 (11) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... , Chennai requesting it to produce evidence from the producer of the firm, whether M/s. Oakgrove International Ltd., Hong Kong has got the right to sell such film with world right. The said authorities made their own inquiries from M/s. AIMS and confirmed that they are the producers of the film. Since the Customs authorities did not release the goods, writ petitions in W.P. Nos. 1083 to 1086 of 1999, praying to issue a writ of mandamus, directing the respondents therein to release the goods were filed and the learned Judge directed the respondents therein to release the cassettes and on such release the petitioner was directed to furnish a copy of the same to the second respondent of the said writ petitions. On that basis 40 films were released and so the petitioner has come forward with the plea that the Customs authorities have accepted that there was no case. But, as informed by the Customs Department, the Enforcement Directorate searched the premises of the petitioner at Coimbatore and its firm's Tirupur office on 3-8-1999. According to the petitioner, no incriminating documents were seized and the petitioner was summoned even prior to the raids on 23-6-1999 and 5-7-1999. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel appearing for the petitioner has relied on the decision in Roshan Beevi v. Joint Secretary to the Govt., Tamil Nadu, Public Dept. etc. — 1983 L.R. (Crl.) 289, in support of his submission. The Full Bench of this Court in the said decision has held that Sections 107 and 108 of the Customs Act do not give any power to the customs officials to take any person under compulsion and detention for a prolonged period under the guise of enquiry and interrogation. 8.But, while dealing with a situation of detention of a person for a prolonged period, the said Full Bench has held as follows : "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 Sections 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 situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 officer 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 framed thereunder restrict the right of the Customs Officer to require the person to appear only at stated hours. In the nature of things, therefore, it will have to depend on the facts and circumstances of the case and, therefore, the only things which we can expect is that the time and place shall be reasonable and fair having regard to the facts in that particular case. Normally it is expected that such interrogation or examination will be done during the normal office hours or during day time. However, we could not say that in every case it could be done only during day time or during office hours. If the circumstances demand an examination or interrogation immediately or during the night subject to all other reasonable facilities provided to the person interrogated or examined it could be done at any time. The other thing which is expected is that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him in a prolonged custody has to be recorded 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, (AIR 1956 SC 56), the prolonged custody may stamp the confessional statement so obtained as involuntary one, and the intrinsic value of such a statement may be vitiated. The question whether a person has been kept in prolonged custody is a question of fact, which has to be carefully considered against the background of the circumstances disclosed in each case. So, it is neither advisable nor possible to lay down any inflexible standards for the guidance of Courts, though in the ultimate analysis, it is the Court which is called upon to decide the circumstances of a particular case". 11.The Apex Court in the decision in Dukhishyam Benupani v. Arun Kumar Bajoria, 1998 Crl. L.J. 841, has held as follows :- "It seems rather unusual that when the aggrieved party approached the High Court challenging the order passed by a subordinate Court the High Court made the position worse for the aggrieved pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o chalk out such measures as are necessary to protect the health of the person who would be subjected to interrogatory process. They cannot be nailed to fixed modalities stipulated by the Court for conducting interrogations. It is not unusual that persons involving themselves in economic offences, particularly those living in affluent circumstances are afflicted by conditions of cardiac instability. So the authorities dealing with such persons must adopt adequate measures to prevent deterioration of their health during the period of custodial internment. Court would interfere when such authorities fail to adopt necessary measures. But we are not in favour of stipulating in advance modalities to be followed by the authorities for that purpose. According to us such anticipatory stipulations are interferences with the efficient exercise of statutory functions when dealing with economic offences. Hence, learned Single judge ought not have imposed such conditions on the Directorate." 13.From the above said decisions, it is clear that the authorities should not overstep their limits and third degree method should not be adopted for the purpose of getting statement as they like, and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Tulsi as against that part which allowed the presence of a lawyer when the respondent is interrogated. It has been rightly contended on behalf of the appellant that the relevant provisions, in this regard, of the FERA and the Customs Act are in pari materia and the object of the two Acts is also similar. As pointed out earlier the case of Ramanlal Bhogilal, AIR 1973 SC 1196 (supra) was one arising under FERA. Consequently Criminal Appeal No. 476 of 1986 has to be allowed against that part of the judgment of the Delhi High Court which dealt with the right of the respondents to have their lawyer during their interrogation.' Shri N. Jothi, the learned Counsel for the petitioners contended that the judgment of the Delhi High Court in the case of 'K.T. Advani, New Delhi v. The State of New Delhi, 1985 Cri. L.J. 1325', should be taken as affirmed by the Supreme Court in all other respects. He submitted that the Supreme Court has reversed the said judgment of the Delhi High Court only so far as it relates to presence of the lawyer with the person concerned at the time of interrogation. Shri V.T. Gopalan, learned Senior Counsel submitted that a precedent is an authority only for wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admission. The learned Counsel for the petitioners stated that the petitioners did not make such a statement in paragraph 10 of the reply affidavit so as to wound the feelings of the learned Senior Counsel; the statement was made in their anxiety that third degree method should not be used even in any case, and the said statement may be understood accordingly. Further Shri V.T. Gopalan, placed before me copy of the order of the Supreme Court in the case of 'Union of India through The Secretary, Ministry of Finance and Ors. v. Prem Prakash', Criminal Appeal Nos. 98-99 of 1994 disposed of on 4-2-1994, to contend that in a similar situation the Supreme Court observed that constitutional rights of the person would be duly protected. Paragraph 2 of the said order reads thus :- 'Shri Chidambaram then submitted that the respondent apprehends the use of force against him during the inquiry even though the respondent has been fully cooperating with the authorities in this behalf. Mr. Chidambaram submitted that a statement on behalf of the appellants assuring the respondent of full protection of his rights would go a long way in giving to the respondent the needed assurance. All th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been committed and if so by whom and in what manner and with what result. It may be that the result of investigation disclose ultimately no offence or violation or that it might have provided a clue or turned put to be a hunch or a hoax. To read into Section 40 of the Act any limitations and restrictions on the exercise of powers by the concerned officer even at the stage of investigation would not only derail and demoralise the investigation and retard the effective enforcement of an important legislation having serious impact upon the economic viability and very development of the nation but also would help real culprits to escape from the clutches of the law with impunity." 18.The learned Senior Counsel also relying on the decision reported in D.K. Basu v. State of W.B., AIR 1997 SC 610, has submitted that the Apex Court has permitted the arrestee to meet his lawyer during interrogation. In the said case, the Apex Court has held that in addition to the statutory and constitutional requirements, it can be useful and effective to structure appropriate machinery for contemporaneous recording and accountability. While observing so, the Apex Court, has held as follows :- "36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the company of persons who provide encouragement to them in adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made 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." 20.In the decision of the Division Bench of this Court in Vijayaraj Jain v. Union of India, 1996 Crl. L.J. 2071, the learned Judges, while dealing with the similar issue, have held as follows :- "58. The said submission of the learned Counsel for the petitioners also cannot be accepted in view of the decision reported in AIR 1974 SC 120 : 1974 Crl. L.J. 280, Balkrishna Chhaganlal Soni v. State of West Bengal, where (in paragraph 15) it is stated thus :- '... A businessman may be want only humiliated if he is arrested and kept in the bazaar and interrogated at length in the presence of a crowd which is sure to collect. The provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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