2019 (9) TMI 137 - HC - Customs

Personal presence of the petitioner as a witness through the authorised agent - Section 108(3) of the Customs Act - HELD THAT - This Court is not inclined to accede to the plea of the petitioner that she has a statutory right to appear before the officer concerned as a witness through an authorised agent, in the facts of this case. However, Sri S. Manu, the Learned Central Government Counsel appearing for respondents 2 to 4, on instructions, would submit that since the petitioner is a woman, it shall be ensured that a woman Customs officer will be personally present throughout the questioning process of the petitioner by the officer concerned in pursuance of Ext. P2 summons - The said undertaking of the respondents made through the Central Government Counsel appearing for respondents 2 to 4 is recorded and it is ordered that respondents 2 to 4 shall ensure that a woman Customs officer shall be personally present throughout the questioning process of the petitioner as a witness pursuant to Ext. P2 summons. Original petition disposed off.

Summary

Issues:
1. Petitioner seeks writ of Mandamus to prevent harassment during statement recording under Customs Act.
2. Petitioner requests statement recording in presence of a lady officer.
3. Petitioner asks for written questions and a copy of recorded statement.
4. Petitioner demands statement recording in presence of counsel or parents.
5. Petitioner wants to appear before the respondent through an authorized agent.

Analysis:
1. The petitioner, a BDS student, filed a writ petition due to her husband's arrest in a crime related to the Customs Act. She expressed concerns about being summoned by the 4th respondent and feared harassment. The respondent argued that a summoned witness has no right to demand a lawyer's presence during questioning, citing Apex Court rulings. The Court noted the statutory provision in Section 108(3) of the Customs Act, which allows a summoned person to appear either in person or through an authorized agent. The Court accepted the respondent's contention that the personal appearance of the petitioner as a witness was necessary in this case.

2. The respondent emphasized the discretionary power of the officer to decide if the witness must be present in person or through an authorized agent. The officer issued a summons requiring the petitioner's personal presence as a witness. The Court agreed with the respondent that the personal appearance of the petitioner was crucial. However, considering the petitioner's gender, the respondent assured that a woman Customs officer would be present during the petitioner's questioning. The Court recorded this undertaking and ordered that a woman Customs officer must be present throughout the questioning process.

3. The Court, while not granting the petitioner's request to appear through an authorized agent, acknowledged the respondent's assurance regarding the presence of a woman Customs officer during the questioning. Consequently, the Court disposed of the original petition with directions for a woman officer to be present during the petitioner's statement recording.