2017 (6) TMI 663 - HC - Customs

Validity of summons issued - petitioner s case is that the act of the respondents in issuing summons to the petitioner is mala fide, the manner of issuing summons and its service being improper and that the action is vitiated and, therefore, the summons deserve to be quashed - Held that - From the documents filed by the petitioner himself, it appears that he has been evading the summons issued by the investigating agency in the past - Summons under Section 108 of the Customs Act, 1962 cannot be answered in the manner sought to be responded to. It is the bounden duty of the petitioner to respond to the said summons by appearing before the investigating officer and making his statement setting out facts that are within his knowledge. Petition dismissed - decided against petitioner.

Summary

Issues:
1. Quashing of summons under Section 108 of the Customs Act, 1962 issued to the petitioner.
2. Permission for the presence of the petitioner's counsel during the recording of statement under Section 108 of the Customs Act, 1962.

Analysis:

Issue 1: Quashing of Summons
The petitioner sought the quashing of the summons issued under Section 108 of the Customs Act, 1962, by invoking Article 226 of the Constitution of India. The petitioner alleged that the summons were mala fide and improperly served. The investigating agency was probing transactions of a partnership firm involving the petitioner's father. The evidence gathered suggested mis-declaration of goods to evade customs duty. The petitioner received substantial amounts from the firm without providing a satisfactory explanation. The court, after reviewing the investigation summary, declined to quash the summons, citing the petitioner's prima facie involvement in the firm's affairs and transactions, necessitating a proper probe at this crucial investigative stage.

Issue 2: Presence of Counsel during Statement Recording
The petitioner also requested the presence of counsel during the recording of his statement under Section 108 of the Customs Act, 1962. The court noted the petitioner's past evasion of summons and emphasized his duty to respond to the investigating officer's queries. The respondents opposed the presence of counsel during questioning, arguing it may hinder the investigation. The petitioner relied on precedents to support the presence of counsel. However, the court distinguished the present case from those precedents, highlighting that the petitioner was summoned as a witness, not an arrestee. The court found no special circumstances warranting the presence of counsel during questioning and dismissed the petition, emphasizing the lack of grounds to grant such a privilege.

In conclusion, the court dismissed the petition, emphasizing the petitioner's obligation to cooperate with the investigation and respond to the summons under Section 108 of the Customs Act, 1962. The court found no basis to allow the presence of counsel during the petitioner's questioning, highlighting the absence of special circumstances necessitating such a privilege. The status report submitted by the investigating agency was returned, and no further directions were issued in the matter.