2016 (12) TMI 1594 - HC - Customs

Presence of counsel for the petitioner during the recording of statement under Section 108 of the Customs Act, 1962 - Summon to appear personally with desired documents - Held that - the Supreme Court and this Court have routinely permitted the counsel of the noticee to remain present at the time of interrogation/questioning of the noticee u/s 108 of the Act, subject to the condition that the counsel shall be placed at a visible distance, but beyond audible distance from the place of inquiry, so that the counsel may be able to see that the noticee is not subjected to any physical harm, but he is not able to hear the process of interrogation/inquiry undertaken by the authorities. The inquiry shall be conducted uptill 5 00 p.m. and if the same is required to be continued, the same may be continued on a day to day basis during office hours only. The same shall be conducted in the presence of a lady officer of the DRI. Counsel for the petitioner shall be permitted to accompany her - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Writ petition seeking quashing of summons under Customs Act.
2. Presence of counsel during statement recording under Section 108 of the Act.

Analysis:

Issue 1:
The petitioner filed a writ petition seeking to quash a summons issued by the Directorate of Revenue Intelligence (DRI) under the Customs Act. The petitioner, a majority shareholder in two firms, was summoned to provide documents related to imports made by the firms. Despite repeated summons and explanations for non-appearance, the petitioner challenged the requirement to appear. The court noted the petitioner's substantial stake in the firms and emphasized her obligation to cooperate in the investigation. The court dismissed the petitioner's argument that her appearance would serve no purpose, highlighting her significant role in the firms under scrutiny.

Issue 2:
The petitioner also sought permission for her counsel to be present during the recording of her statement under Section 108 of the Act. The petitioner's counsel cited previous court orders allowing such presence during inquiries. The respondents opposed this request, relying on a Supreme Court judgment emphasizing the investigative process and the limited role of legal representation during questioning. However, the petitioner relied on a subsequent decision that clarified the role of counsel during interrogation. The court granted the petitioner's request, allowing her counsel to be present at a visible but non-audible distance during the inquiry, ensuring oversight without interfering with the investigative process.

In conclusion, the court upheld the summons for the petitioner's appearance and granted permission for her counsel to be present during the inquiry, ensuring compliance with legal procedures while safeguarding the petitioner's rights.