2008 (3) TMI 320 - HC - Customs

Summons failure to appear in investigation - The petitioner has received summons under Section 108 of the Act from the Directorate of Revenue Intelligence Zonal Unit, Ahemdabad. However, the petitioner failed to appear before the Directorate of Revenue Intelligence Zonal Unit, Ahmedabad for which criminal proceedings were initiated against him Revenue s contention that it is for the Investigating Agency to decide venue, the timings and questions and the manner of putting such questions is not acceptable - the petitioner is not an accused in this case but he is only to appear as prosecution witness and not as a defence witness the case of the petitioner is squarely covered by the judgment of this court in the case of Tar Balbir Singh - The respondents are directed to examine and record the evidence of the petitioner at their office at Ludhiana.

Summary

Issues:
1. Direction to record petitioner's statement under Section 482 of the Code of Criminal Procedure.
2. Challenge to criminal proceedings initiation under Section 108 of the Customs Act, 1962.
3. Validity of Section 108 of the Act under Article 14 of the Constitution of India.
4. Examination of petitioner by Custom Authorities at Ludhiana.
5. Entitlement of relief under Section 108 of the Act.
6. Requirement of petitioner's presence at Ahmedabad for effective evidence recording.
7. Investigating Agency's authority to decide venue, timings, and questioning during investigation.

Analysis:
1. The petitioner sought directions to record his statement under Section 482 of the Code of Criminal Procedure, concerning the use of advance licenses by various companies. The petitioner, engaged in trading, was summoned under Section 108 of the Customs Act, 1962, by the Directorate of Revenue Intelligence Zonal Unit, Ahmedabad.

2. The petitioner challenged the initiation of criminal proceedings in Gujarat High Court, alleging a violation of Section 202 of the Cr. P.C. and the ultra vires nature of Section 108 of the Act under Article 14 of the Constitution. However, the challenge was dismissed by the Gujarat High Court.

3. The petitioner approached the Punjab & Haryana High Court, requesting his examination by Custom Authorities at Ludhiana, citing inconvenience and the absence of a DRI office in Chandigarh. The court considered the petitioner's plea, emphasizing the need to avoid harassment due to distant summons.

4. The court relied on precedents like Tar Balbir Singh's case to support the petitioner's plea for examination at Jalandhar, ensuring the petitioner's right to legal representation during statement recording. The court directed the authorities to cover the petitioner's travel expenses for the examination.

5. The respondent contended that the relief claimed by the petitioner was not available, citing the jurisdiction of Customs Authorities under Section 108 of the Act to call individuals for evidence during investigations.

6. The respondent argued that the original records being in Ahmedabad necessitated the petitioner's presence there for effective evidence recording. Citing a Supreme Court judgment, the respondent emphasized the Investigating Agency's authority to decide the venue, timing, and manner of questioning during investigations.

7. The court rejected the respondent's contentions, clarifying that the petitioner, not being an accused but a prosecution witness, should have his evidence recorded at Ludhiana. The judgment highlighted the distinction between the rights of the accused and those summoned as witnesses, ultimately allowing the petition and directing examination at Ludhiana as requested.