2017 (3) TMI 1545 - HC - Customs

Quashing of summons dated 16.03.2017 issued to the petitioner - petitioner seeking to take his lawyer with him at the time of his examination such that the lawyer may be able to see the proceedings but may not be at a hearing distance of the said examination - Held that - the petitioner has been noticed under Section 108 of the Customs Act and is seeking the said protection of prior notice before arrest. There could be cases where the empowered customs officers may arrest a person without even summoning him or her under Section 108 of the Customs Act. Merely because the petitioner has been so noticed, it does not, prima facie, entitle him to seek the aforesaid protection - petition dismissed - decided against petitioner.

Summary

Issues:
1. Quashing of summons under Section 108 of the Customs Act
2. Permission for the petitioner to have a lawyer present during examination
3. Prayer for three days' prior notice before arrest
4. Interpretation of Sections 104, 135, 41, and 41A of the Customs Act and Cr.P.C.
5. Compliance with Supreme Court judgments regarding arrest procedures

Analysis:
1. The petitioner sought to quash a summons issued under Section 108 of the Customs Act. The petitioner's counsel requested permission for the petitioner to have a lawyer present during the examination. The respondent authorities agreed to this arrangement, ensuring the lawyer's presence within visible but not audible distance during the examination. The petitioner was directed to appear with his lawyer on specified dates.
2. The petitioner also prayed for a three days' prior notice in case of potential arrest. The petitioner's counsel argued that certain sections of the Customs Act allow for arrest in specific circumstances, emphasizing the importance of safeguarding fundamental rights under Article 21 of the Constitution of India. However, the opposing counsel cited a Supreme Court case where a similar direction for prior notice was deemed inconsistent with the Customs Act's scheme.
3. The court examined the provisions of Sections 104, 135, 41, and 41A of the Customs Act and Cr.P.C. regarding arrest powers, bail, and grounds for arrest. Reference was made to a circular issued by the Central Board of Excise & Customs on arrest and bail procedures. The court emphasized the need for superior officers to exercise arrest powers judiciously in line with Supreme Court directives.
4. Considering the petitioner's notice under Section 108 of the Customs Act, the court concluded that mere receipt of notice did not automatically entitle the petitioner to prior notice before arrest. The court directed strict compliance with arrest procedures outlined in the Cr.P.C. and Customs Act, emphasizing adherence to Supreme Court guidelines.
5. The matter was adjourned for further consideration, with the respondents instructed to submit their replies within a specified timeframe. The court underscored the importance of compliance with arrest procedures as delineated by the Supreme Court, indicating a meticulous approach to arrest-related matters.

This detailed analysis of the judgment highlights the court's considerations regarding the quashing of summons, presence of a lawyer during examination, prior notice before arrest, interpretation of relevant legal provisions, and adherence to Supreme Court guidelines on arrest procedures.