2021 (4) TMI 312 - HC - Customs

Recording of investigation by way of videography - validity of summons issued - Smuggling - seizure of 15 kgs of gold - HELD THAT - A Committee of experts appears to have been constituted to prepare a road map and standard operating procedure, and the response of various States have been sought. Central investigation agencies are also said to have supported this concept. After taking into account all these aspects, the Bench records that a centrally driven plan of action is the right approach and the plan of action should be implemented in a phased manner with a milestone based review mechanism. Supreme Court in D.K.Basu 1996 (12) TMI 350 - SUPREME COURT wherein the earlier directions that CCTV cameras be installed in all police station and prisons was made. In addition, an oversight mechanism was also directed to be created where an independent committee would study the footage from CCTV cameras and periodically publish reports of its observations. The matter was directed to be listed for periodic monitoring by the Supreme Court - the Supreme Court laments that the majority of the affidavits reports failed to disclose the exact positioning of the CCTV cameras and are bereft of details with regard to the total number of CCTV cameras, their working condition, whether they have recording facilities and for how many days/weeks the data will be stored. Thus the need for comprehensive videography, and the installation of CCTV cameras in all investigating agencies has been recognised and directions issued as early as in 2018. This appears to be a work in progress. Meanwhile Courts continue to be flooded with writ petitions of the present nature putting forth allegations and apprehensions of abuse and torture, both perceived and justified. This would be obviated had a mechanism been put in place to ensure recording of the investigation. Such a process would seek to serve the interests of not only the person under investigation, but also the investigating agency. In the absence of any instructions that are reported regarding the status of CCTV cameras in the DRI offices at Kolkata, it is directed that the process of investigation of the petitioners be videographed and the data stored till completion of the proceedings.

Summary

Issues Involved:
1. Validity of summons issued under Section 108 of the Customs Act, 1962.
2. Jurisdiction and authority of Directorate of Revenue Intelligence (DRI) in Chennai vs. Kolkata.
3. Petitioners' role as witnesses vs. accused.
4. Conduct of investigation via video conference.
5. Humanitarian grounds for conducting investigation in Chennai.
6. Requirement of videography during interrogation.

Detailed Analysis:

1. Validity of Summons Issued under Section 108 of the Customs Act, 1962:
The petitioners challenged the summons issued under Section 108 of the Customs Act, 1962, arguing that the summons did not indicate any adverse material linking them to the alleged illegal activities. The court noted that the provisions of Section 108 authorize officials to issue summons for evidence or production of documents. However, the summons in question marked 'NA' for both parameters, leading the petitioners to claim harassment. The court evaluated the legal precedents cited by the petitioners and concluded that the summons were issued validly for the purpose of investigation and could not be quashed on the grounds presented.

2. Jurisdiction and Authority of DRI in Chennai vs. Kolkata:
The petitioners argued that since the DRI in Chennai had already initiated proceedings and recorded their statements, the DRI in Kolkata should not re-initiate or continue the proceedings. They contended that the re-examination by Kolkata authorities was unnecessary and constituted harassment. The court, however, found that the role of the petitioners in the transactions was yet to be determined and that it was inappropriate to intervene at this stage. The court dismissed the argument that proceedings should be confined to one location and upheld the jurisdiction of the DRI in Kolkata to issue summons.

3. Petitioners' Role as Witnesses vs. Accused:
The petitioners, including employees and a freelance accountant, claimed they were only witnesses and not accused in the case, as evidenced by a show cause notice issued to the accountant. They argued that the summons should be quashed since they had no nexus with the transactions in question. The court, however, rejected this argument, stating that the investigation was ongoing and the petitioners' roles were yet to be clearly defined. The court emphasized that it was not appropriate to quash the summons based on the current stage of the investigation.

4. Conduct of Investigation via Video Conference:
During the COVID-19 pandemic, the court had initially directed that the proceedings be conducted via video conference. However, the respondents did not follow this order and argued that video conferencing was not suitable for investigations, citing various judgments. The court acknowledged the petitioners' apprehensions of high-handedness and arbitrariness by the respondents and reiterated the importance of video conferencing in the context of the pandemic. The court directed that the investigation be conducted via video conference to ensure proper decorum and adherence to legal prescriptions.

5. Humanitarian Grounds for Conducting Investigation in Chennai:
One petitioner, a director of the company, requested that the investigation be conducted in Chennai on humanitarian grounds, citing medical complications from COVID-19. The court noted the medical report submitted and the lack of objection from the respondents. Consequently, the court set aside the summons for this petitioner and directed that fresh summons be issued by the authorities in Chennai. The petitioner was ordered to cooperate with the proceedings in Chennai.

6. Requirement of Videography During Interrogation:
The petitioners expressed concerns about potential abuse and torture during interrogation and requested that the investigation be videographed. The court referred to various Supreme Court judgments emphasizing the importance of videography and the installation of CCTV cameras in investigation agencies. The court directed that the investigation of the petitioners be videographed and the data stored until the completion of the proceedings. This measure was intended to protect the interests of both the petitioners and the investigating agency.

Conclusion:
The court dismissed the writ petitions challenging the summons, except for the petitioner on humanitarian grounds, whose case was allowed with directions for fresh summons from Chennai. The court emphasized the need for videography during interrogation to ensure transparency and protect the rights of individuals under investigation.