2024 (2) TMI 1274 - HC - Customs

Maintainability of the writ petition - availability of alternative remedy - Direction to respondents to not to arrest the petitioner against the summons issued under Section 108 of Customs Act 1962 - seeking expeditious disposal of enquiry pertaining to the Seizure of Betel Nuts, pending since May 2023 preferably within a stipulated time period - HELD THAT - It is not in dispute that the maintainability of the writ petition under Article 226 of the Constitution of India is concerned, the same is maintainable with only rider that such power should be exercised sparingly and the same has been considered the judgement in Choodamani Parmeshwaran Iyer 2018 (12) TMI 1897 - GUJARAT HIGH COURT . Thus, at this stage we are not inclined to entertain the writ petition - Accordingly, the writ petition is disposed of.

Summary

Issues Involved:
The issues involved in the judgment are the maintainability of a writ petition under Article 226 of the Constitution of India, the power to arrest under Section 108 of the Customs Act 1962, and the applicability of bail provisions for offences under the Customs Act.

Maintainability of Writ Petition:
The Union of India raised a preliminary objection regarding the maintainability of the writ petition, arguing that the power to arrest a person under the Customs Act should not be interfered with by the court. Citing a judgment of the Apex Court, it was emphasized that statutory powers of arrest must be based on objective facts of an offense committed. The Union of India also contended that the provisions of Section 438 of the Criminal Procedure Code cannot be invoked when summoned under Section 108 of the Customs Act. Referring to previous judgments, it was argued that pre-arrest protection is not a guaranteed right and should be sparingly exercised by the High Court.

Power to Arrest under Customs Act:
The petitioner, on the other hand, relied on a Supreme Court judgment to argue that offenses under the Customs Act should be considered bailable, similar to offenses under the Central Excise Act. The petitioner emphasized that Customs Officers have the power to release on bail upon arrest for non-cognizable offenses under the Customs Act. Previous judgments were cited to support the argument that offenses under the Customs Act should be considered bailable, and bail should be granted in accordance with the provisions of the Act.

Disposition of Writ Petition:
The High Court, after considering the arguments presented, decided not to entertain the writ petition at that stage. It was emphasized that the respondent authorities should proceed in accordance with the law. The court acknowledged the maintainability of the writ petition under Article 226 but highlighted that such power should be sparingly exercised. Consequently, the writ petition was disposed of without granting the reliefs sought by the petitioner.