2018 (1) TMI 1281 - HC - Customs

Permission for interrogation u/s 108 of the Customs Act, 1962 in the presence of his Advocate - Held that - similar issue decided in the case of Vijay Sajnani & Anr. Versus Union of India & Anr. 2012 (4) TMI 706 - SUPREME COURT OF INDIA , where it is directed that the petitioners advocate should be allowed to be present during the interrogation of the petitioners. He/they should be made to sit at a distance beyond hearing range, but within visible distance and the lawyer must be prepared to be present whenever the petitioners are called upon to attend such interrogation. The respondent is directed that as and when the petitioner is called upon under Section 108 of the Customs Act, 1962 by the Customs Authorities, he shall be interrogated in the presence of his Advocate who shall be available at a visible distance but beyond the hearing range - petition allowed.

Summary

Issues:
1. Invocation of writ jurisdiction under Article 226 of the Constitution of India, read with Section 482 of Cr. P.C.
2. Direction for interrogation under Section 108 of the Customs Act, 1962 in the presence of an Advocate.
3. Opposition to the prayer based on non-appearance before Customs Officer.
4. Request for permission to have counsel present during the recording of the statement.

Analysis:
1. The petitioner invoked the writ jurisdiction of the court under Article 226 of the Constitution of India, in conjunction with Section 482 of the Cr. P.C. The prayer sought a writ of mandamus directing the respondents to interrogate the petitioner under Section 108 of the Customs Act, 1962 in the presence of his Advocate, who would be within visible distance but not within the hearing range. This jurisdiction was exercised to address the issue of interrogation procedures under the Customs Act.

2. The respondent, represented by CGSC, opposed the petitioner's prayer on the grounds that the petitioner had been issued notice multiple times but had not appeared before the Customs Officer as requested. Instead, the petitioner had been sending documents by post. The opposition was primarily based on the petitioner's failure to comply with the standard procedure of appearing before the authorities, leading to the contention that the petitioner was not entitled to relief.

3. The petitioner, summoned under Section 108 of the Customs Act, 1962 in connection with an import case, had sent all requested documents by post but had not received a response regarding the presence of his counsel during the interrogation. The petitioner expressed concerns about potential coercive methods during the interrogation and sought permission for his Advocate to be present at a visible distance but not within the hearing range, citing precedents where similar prayers had been allowed by the Hon'ble Supreme Court.

4. Referring to previous judgments, the court allowed the petitioner's prayer and directed that during any interrogation under Section 108 of the Customs Act, 1962, the petitioner should be interrogated in the presence of his Advocate, who must be available at a visible distance but not within hearing range. The court emphasized that the Advocate should not interfere in the interrogation process. The petition was disposed of with this direction, ensuring the presence of the Advocate during future interrogations.