2019 (12) TMI 1247 - HC - Customs

Review petition - request for presence of an advocate at visible, but not audible, distance, during the course of recording of the statement of the petitioner - Misdeclaration of value of imported goods - RO membrane - disobedience of the summons by petitioner - HELD THAT - In the first place, this request cannot be made in a review petition, as it does not satisfy any of the grounds, on which review can be sought, as contemplated by Order XLVII Rule 1 of the Code of Civil Procedure, 1908 - Also, it is a settled position, in law, that the third ground for review, i.e. any other sufficient reason has to be read ejusdem generis to the first two grounds. No doubt, if a litigant, in a particular case, is able to produce credible material to indicate a real and live apprehension, of the possibility of coercive methods being employed, while recording of his statement under Section 108 of the Act, the court can always permit the presence of an advocate, at visible, but not audible, distance, during the course of recording of the statement - The apprehension of coercive measure being employed is, however, required to be real and live, so that the grant of permission to have the presence of an advocate, at visible, but not audible, distance, which is an exception, does not become the rule. In order to satisfy ourselves, regarding the reasonableness of the petitioner s request, we queried, of Ms. Manish, in that regard, whereupon she submits that, during the course of proceedings before the learned Metropolitan Magistrate, her client was surrounded by several officers of the DRI, who served, on him, summons to appear, so that his statement could be recorded. This, she submits, has created apprehensions, in her client s mind, of possible coercion, if and when he appears in response to the summons - To our mind, this can hardly constitute a reasonable basis for the petitioner to apprehend coercion, during the recording of his statement, so as to justify a prayer for being permitted for the presence of an advocate at visible, though not audible, distance, during the course of recording of his statement. Review petition dismissed.

Summary

Issues:
1. Review of order dismissing the writ petition challenging search & seizure and summons.
2. Request for presence of an advocate during the recording of the statement.

Analysis:

Issue 1: Review of order dismissing the writ petition
The petitioner sought a review of the order dated 2nd September, 2019, which dismissed the writ petition challenging the search & seizure conducted on 12th June, 2018, and various summons issued by the Directorate of Revenue Intelligence (DRI). The petitioner had avoided several summons, leading to the initiation of proceedings under Section 174 of the Code of Criminal Procedure, 1973. The prayer clause in the writ petition aimed to quash the search & seizure, set aside the summons, stay further proceedings, and restrain coercive actions. The High Court dismissed the writ petition on the grounds that parties are required to attend in response to DRI summons, and avoiding compliance is impermissible in law. The court emphasized the necessity for the petitioner to cooperate with the investigation. The review petition was filed to allow the presence of an advocate during the recording of the statement.

Issue 2: Request for presence of an advocate during the recording of the statement
The review petition requested the presence of an advocate at a visible but not audible distance during the recording of the petitioner's statement, pursuant to summons under Section 108 of the Customs Act, 1962. The High Court highlighted that such a request cannot be made in a review petition unless it satisfies specific grounds under the Code of Civil Procedure, 1908. The petitioner's counsel cited instances where courts permitted advocate presence based on apprehensions of coercive methods. However, the court noted that the presence of an advocate during statement recording is an exception and should not become a rule. The court emphasized that the petitioner must demonstrate a real and live apprehension of coercion to justify advocate presence. The court dismissed the review petition as the petitioner's apprehensions were deemed insufficient to warrant advocate presence during the statement recording.

In conclusion, the High Court upheld the dismissal of the writ petition challenging the search & seizure and summons, emphasizing the necessity for cooperation with the investigation. The court also rejected the request for advocate presence during the statement recording, highlighting the need for a genuine apprehension of coercion to justify such an exception.