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2018 (11) TMI 1479 - HC - CustomsAppearance before the authorities - summons under Section 108 of the Customs Act issued - case of petitioner is that he could not get permission; if at all he left the UAE without his employer s permission, he would lose his job. Therefore, he wanted to be examined through a questionnaire sent to him or through video-conference - Department insisted on his appearance. Held that - An officer of the Customs will have the power to summon any person whose attendance he considers necessary either to give evidence or to produce a document. And under sub-section (3), all persons who are summoned shall be bound to attend either in person or by an authorised agent. In fact, Sri Augustian lays stress on this alternative and insists that the witness s physical appearance before the authority is not mandatory. The officer can insist on the witness s presence. When an investigation into a crime is in progress, the officer concerned must have complete freedom to proceed with the investigation unhindered-of course within the legal bounds. This Court will not supplant its view on how an investigation should be carried out - also, a person s liberty, safety, and dignity-not to be subjected to degrading or inhuman treatment, including infliction of physical injury-is sacrosanct. Therefore, to balance the competing interests of the investigating agency and the witness summoned, Sibin cannot seek exemption from appearance when the authority, for reasons that weighed with him, has felt that the witness s physical presence is essential for the progress of the investigation. At the same time, the Department must ensure that the witness, in the name of the inquiry, has not been subjected to any physical violence -say, torture. The writ petition disposed off holding that Sibin will appear before the authorities as summoned. But once Sibin appears, the Investigating Officer will examine Sibin strictly under the law - decided against petitioner.
Issues:
1. Whether the witness can seek exemption from physical appearance in response to a summons under Section 108 of the Customs Act. 2. Balancing the interests of the investigating agency and the summoned witness regarding the necessity of physical presence. 3. Safeguarding the witness from physical abuse during the investigation process. 4. Addressing the concerns of the witness regarding potential mistreatment and ensuring a fair examination process. Issue 1: Exemption from Physical Appearance The petitioner, working in the UAE, was summoned under Section 108 of the Customs Act but expressed inability to visit India due to job security concerns. The petitioner's counsel argued that physical appearance is not mandatory and suggested alternatives like a questionnaire or video-conference. However, the Court held that the officer can insist on the witness's presence if deemed necessary for the investigation's progress. Issue 2: Balancing Interests The Court emphasized the officer's discretion in requiring physical presence for justifiable reasons during an investigation. It maintained that the witness cannot seek exemption when the authority deems physical presence essential. The Court highlighted the need for unhindered investigation within legal bounds while respecting the witness's rights. Issue 3: Safeguarding Against Abuse To prevent physical violence or torture, the Court directed the Department to ensure the witness is not subjected to any form of mistreatment during the inquiry. It ordered the videotaping of the examination process without audio to maintain confidentiality while verifying the absence of physical abuse. Issue 4: Fair Examination Process Addressing the witness's fear of being treated as an accused, the Court allowed seeking legal redressal like anticipatory bail if needed. The petitioner's request for closed-circuit camera recording was granted to monitor the witness's entry, examination duration, and exit to prevent potential mistreatment. The Court also permitted the counsel's presence outside the examination room to oversee a fair and timely process. In conclusion, the Court disposed of the writ petition, mandating the witness's appearance while ensuring a lawful examination process and safeguarding against physical abuse. The judgment balanced the interests of the investigating agency and the witness, emphasizing the importance of respecting the witness's rights and maintaining investigative integrity.
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