2017 (3) TMI 1588 - HC - Customs

Prayer to appear before the authority concerned for recording the statement under Section 108 of the Customs Act in the presence of his counsel - Section 104 of the Customs Act - power to summon a person - Held that - From the perusal of the provisions contained under Section 108 of the Customs Act it is evident that the authorities concerned have power to summon a person for giving evidence and produce the documents and in view of Section 108(3) all persons so summoned shall be bound to attend either in person or by an authorized agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject, respecting which they are examined or make statements and produce such documents and other things as may be required - So far as the power to arrest any person against whom the cognizable offence is made out after recording the statement under Section 108 of the Customs Act then he shall be arrested by the Customs Authorities in view of Section 104(1) of the Act if evasion or attempted evasion of duty exceeding fifty lakh rupees. The said offence is non-bailable offence as is clear from Section 104(6)(d) of Customs Act. There is no statutory provision which may allow a person to appear along with his counsel before the authorities concerned while his statement under Section 108 of the Customs Act is to be recorded - For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and 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. The presence of counsel refusal during interrogation/recording the statement of a person under the Customs Act would not be violative of Articles 20(3) and 21 of the Constitution of India. Petition dismissed - decided against petitioner.

Summary

Issues Involved
1. Presence of counsel during recording of the statement under Section 108 of the Customs Act, 1962.
2. Prior notice before arrest under the Customs Act, 1962.

Detailed Analysis

Presence of Counsel During Recording of Statement
The petitioner requested a writ of mandamus to allow the presence of his counsel during the recording of his statement under Section 108 of the Customs Act, 1962. The petitioner cited a Supreme Court judgment allowing the presence of an advocate within visible distance but beyond hearing range during such interrogations. However, the court referred to the Supreme Court's decision in Poolpandi & Others v. Superintendent, Central Excise & Others, which held that there is no statutory provision for the presence of counsel during the recording of statements under Section 108. The court emphasized that the purpose of the inquiry under the Customs Act would be frustrated if individuals were allowed to have their counsel present during interrogation. The court concluded that the refusal of counsel's presence does not violate Articles 20(3) and 21 of the Constitution of India.

Prior Notice Before Arrest
The petitioner also sought a writ mandating three days' prior notice before any potential arrest under the Customs Act. The court examined the relevant provisions of Section 104 of the Customs Act, which grants customs officers the power to arrest individuals if there is reason to believe they have committed an offense punishable under specified sections of the Act. The court cited the Supreme Court's decision in Union of India v. Padam Narain Aggarwal and Others, which held that no order could be passed requiring prior notice before arrest, as it would interfere with the statutory powers of customs officers. The court highlighted that such a condition is not warranted by law and would obstruct the authority of customs officers. The court concluded that the demand for prior notice before arrest lacks merit.

Conclusion
The court dismissed the petition, stating that there is no legal basis for allowing the presence of counsel during the recording of statements under Section 108 of the Customs Act. Additionally, the court found no merit in the request for prior notice before arrest, as it would interfere with the statutory powers of customs officers. The petition was deemed devoid of merit and was accordingly dismissed.