2018 (6) TMI 1629 - HC - Customs

Presence of Counsel on Recording of statements - Section 108 of the Customs Act 1962 - illegal detention of goods or not - HELD THAT - We are not inclined to hold that recording of statement of the petitioners under Section 108 of the Customs Act by DRI officials without the presence of their counsel would in any manner violate any of their fundamental rights - On the contrary if the kind of allegations which the petitioners have made against the DRI officials are accepted on their mere ipse dixit and all the statements of this nature are generally ordered to be recorded in the presence of their advocate the purpose of enquiry under the Customs Act and the other enactments of similar nature may be defeated. If the DRI authorities in the present case have identified many such dubious transactions they have legitimate right to question such importers and persons associated with them in isolation and not necessarily in the company of their counsel. Such act on the part of DRI cannot be held to be violative of Article 20(3) 21 and 22(1) of the Constitution of India. The prayer of the petitioners that their statement should be recorded in the presence of their counsel cannot be accepted. It however goes without saying that the respondents while recording their statement are always expected to follow the due process of law. Petition dismissed.

Issues Involved:
1. Legitimacy of summoning petitioners under Section 108 of the Customs Act, 1962.
2. Allegations of coercion, threats, and physical violence by DRI officials.
3. Petitioners' request for the presence of counsel during interrogation.
4. Application of fundamental rights under Articles 20(3), 21, and 22(1) of the Constitution.

Issue-wise Analysis:

1. Legitimacy of Summoning Petitioners under Section 108 of the Customs Act, 1962:
The petitioners were summoned by the Directorate of Revenue Intelligence (DRI) under Section 108 of the Customs Act, 1962, in connection with the seizure of documents related to 12 consignments of allegedly imported "rough precious stones." The court found that the DRI has the legitimate right to summon individuals for evidence under this section. The petitioners' argument that they are law-abiding citizens did not suffice to invalidate the summons.

2. Allegations of Coercion, Threats, and Physical Violence by DRI Officials:
The petitioners alleged that they would be subjected to third-degree torture, threats, and physical violence if they appeared before the DRI. They cited the example of Mr. Babulal, an employee of Sri Sai Logistics, who was allegedly tortured and coerced into making a false statement. The court, however, was not convinced by these allegations, stating that Mr. Babulal's retraction could not be the basis for a general allegation against the DRI. The court found no justification for the petitioners' sweeping claims of potential torture and coercion.

3. Petitioners' Request for the Presence of Counsel During Interrogation:
The petitioners requested that their statements be recorded in the presence of their counsel, citing various Supreme Court judgments. The court referred to the Supreme Court's ruling in the case of Senior Intelligence Officer, Directorate of Revenue, Intelligence v. Jugal Kishore Samra, where it was held that the presence of a lawyer during interrogation is not a right for a witness. The court also noted the Supreme Court's decision in Poolpandi & Ors. v. Superintendent, Central Excise & Ors., which stated that the presence of a lawyer during interrogation under the Customs Act is not necessary. The court concluded that allowing the presence of counsel could defeat the purpose of the inquiry under the Customs Act.

4. Application of Fundamental Rights under Articles 20(3), 21, and 22(1) of the Constitution:
The petitioners argued that their fundamental rights under Articles 20(3), 21, and 22(1) of the Constitution would be violated if they were interrogated without their counsel present. The court, however, held that recording statements under Section 108 of the Customs Act without the presence of counsel does not violate these fundamental rights. The court emphasized that the DRI's actions are aimed at preventing smuggling and recovering duties, and the interrogation process must be conducted without external influences to be effective.

Conclusion:
The court dismissed the petitions, holding that the DRI's actions under Section 108 of the Customs Act are legitimate and do not violate the petitioners' fundamental rights. The court also rejected the petitioners' request for the presence of counsel during interrogation, stating that such a provision would hinder the inquiry process. The court directed the DRI to follow due process while recording the petitioners' statements.

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