2023 (9) TMI 1394 - HC - Customs

Validity of summons issued in the course of investigation - DRI is a proper officer to issue SCN or not - Detention order passed against the father of the petitioner - HELD THAT - It is well settled that investigation should not be interfered with except in grave and special circumstances and where it would be manifest that no offence had been committed. Bearing in mind the material which stands placed on the record, the relief claimed cannot be sustained - It is by now well settled that High Courts in exercise of either their inherent powers under Section 482 of the Code of Criminal Procedure, 1973 or their constitutional power flowing from Article 226 of the Constitution would interfere with an ongoing investigation or thwart it only in rare and exceptional cases and where it may be established that no offense at all appears to have been committed. The power to arrest stands conferred upon the respondents to be utilised in aid of the enquiry or investigation which may be ongoing. The respondents upon forming the requisite opinion of the presence of a party being required in the course of investigation or inquiry are duly empowered by the statute to summon persons who may then be asked to participate in the inquiry that is pending. Detention order passed against the father of the petitioner - HELD THAT - The learned counsel completely fails to appreciate that the aforesaid detention order has come to be passed by virtue of the provisions made in Section 3 of the COFEPOSA. Section 3 is a preventive measure which is adopted in terms of the provisions contained in COFEPOSA and is designed to ensure that a person against whom requisite belief or opinion has been formed and who is habitually engaged in the commission of offences is restrained from proceeding in violation of the law. This is also evident from the following satisfaction which has come to be recorded by the competent authorities and stands so reflected in the order of detention. It is observed that while certain questions of law do appear to have been framed for further consideration, there is no restraint in the interregnum for the authorities duly empowered under the Act to proceed in accordance with law. There are no merit in the instant writ petition. It shall stand dismissed.

Summary

Issues Involved:
1. Legality of the investigation by the Directorate of Revenue Intelligence (DRI).
2. Validity of successive summons issued under Section 108 of the Customs Act, 1962.
3. Implications of the detention order under COFEPOSA.
4. Relevance of the Supreme Court's order dated 04 July 2023.

Summary:

1. Legality of the investigation by the Directorate of Revenue Intelligence (DRI):
The petitioner sought to set aside the investigation conducted by the Directorate of Revenue Intelligence (DRI) against them. The court noted that investigations should not be interfered with except in grave and special circumstances where it is manifest that no offense had been committed. The court found no basis to sustain the relief claimed by the petitioner, stating that the material on record did not meet the tests for such interference.

2. Validity of successive summons issued under Section 108 of the Customs Act, 1962:
The petitioner argued that once arrested under Section 104 of the Customs Act, 1962, they should be viewed as an accused, and no further summons should be issued. The court clarified that the formation of an opinion of the commission of an offense does not equate to being viewed as an accused. The term "accused" refers to someone against whom cognizance has been taken or a chargesheet filed, which was not the case here. The court also emphasized that the power to arrest is to aid the ongoing investigation or inquiry, and the respondents are empowered to summon persons for participation in the inquiry.

3. Implications of the detention order under COFEPOSA:
The court addressed the relevance of a detention order passed against the petitioner's father under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The court explained that Section 3 is a preventive measure to restrain habitual offenders from violating the law. The court cited various voluntary statements and evidence indicating the involvement of the petitioner's father in evading customs duty and engaging in smuggling activities, justifying the detention order.

4. Relevance of the Supreme Court's order dated 04 July 2023:
The petitioner referenced an order of the Supreme Court framing questions of law regarding the jurisdiction and powers of DRI officers under the Customs Act, 1962. The court noted that while these questions were framed for further consideration, there was no interim restraint on the authorities from proceeding in accordance with the law.

Conclusion:
The court found no merit in the writ petition and dismissed it, allowing the investigation and the issuance of summons to continue as per the legal provisions.