9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (9) TMI 808 - HC - CustomsPower of Customs Officers as Police officers - Power to arrest - Classification of offences u/s 135 of the Customs Act, 1962 - High Seas Sale - It appears from the materials on record and the pleadings that the respondent no.2 is also contemplating to institute criminal prosecution for the offences punishable under Sections 132 and 135 respectively of the Customs Act, 1962. HELD THAT - Any person can be arrested for any offence under the Customs Act, 1962, by the Customs Officer, if such officer has reasons to believe that such person has committed an offence punishable under Section 132 or Section 133 or Section 135 or Section 135A or Section 136 of the Customs Act, 1962, and in such circumstances, the Customs Officer is not obliged to follow the dictum of the Supreme Court as laid in the case of Lalitha Kumari (supra). When any person is arrested by an officer of the Customs, in exercise of his powers under Section 104 of the Customs Act, 1962, the officer effecting the arrest is not obliged in law to comply with the provisions of Sections 154 to 157 of the Code of Criminal Procedure, 1973. The officer of the Customs, after arresting such person, has to inform that person of the grounds for such arrest, and the person arrested will have to be taken to a Magistrate without unnecessary delay. However, the provisions of Sections 154 to 157 of the Code will have no application at that point of time. The Customs/DRI Officers are not the Police Officers and, therefore, are not obliged in law to register FIR against the person arrested in respect of an offence under Sections 133 to 135 of the Customs Act, 1962. A Police Officer, making an investigation of an offence, representing the State, files a report under Section 173 of the Code, becomes the complainant, whereas, the prosecuting agency under the special Acts files a complaint as a complainant, i.e. under Section 137 of the Customs Act. The power to arrest a person by a Customs Officer is statutory in character and should not be interfered with. Section 108 of the Act does not contemplate any Magisterial intervention. The statements recorded under Section 108 of the Customs Act are distinct and different from the statements recorded by the Police Officers during the course of investigation under the Code. Applicability of OM PRAKASH AND CHOITH NANIKRAM HARCHANDANI VERSUS UNION OF INDIA 2011 (9) TMI 65 - SUPREME COURT - HELD THAT - In Om Prakash, the question arose, with respect to the investigation in the cases relating to the Central Excise Act, 1944, and the Customs Act, 1962, as to whether the officers under the said Act could arrest without a warrant in connection with those offences which were non-cognizable and bailable. The powers of the officers of the Excise or the Customs to initiate investigation and to arrest without warrant has been discussed and whether the officers have the powers akin to that of a Police Officer was also looked into. It was held that an offence, in order to be cognizable and bailable, would have to be an offence which is punishable with imprisonment for less than three years. Further, for all those offences which are punishable for a period of three to seven years can be considered as cognizable and non- bailable - The Supreme Court held that the offences under the Indian Penal Code cannot be equated with those listed in the Central Excise Act to draw a conclusion as to which of those offences are non-cognizable and non-bailable. It was held that in view of the Central Excise Act, 1944, the non-cognizable offences are bailable in nature and if a person is arrested, he shall be released on bail. The Supreme Court held that the offences under the Customs Act are bailable and the officers have the same powers as that of a Police Officer. The decision of the Supreme Court in the case of Om Prakash (supra) has no bearing in the case on hand. Scope of the term Any Person u/s 104 - HELD THAT - The expression 'any person' in Section 104 of the Customs Act includes a person who is suspected or believed to be concerned in the smuggling of goods. However, a person arrested by a Customs Officer because he is found to be in possession of smuggled goods or on suspicion that he is concerned in smuggling goods is not, when called upon by the Customs Officer to make a statement or to produce a document or thing, a person is accused of an offence within the meaning of Article 20(3) of the Constitution of India. Where a Customs Officer arrests a person and informs that person of the grounds of his arrest, for the purposes of holding an inquiry into the infringement of the provisions of the Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. The accusation could be said to have been made when a complaint is lodged by an officer competent in that behalf before the Magistrate. The arrest and detention are only for the purpose of holding effective inquiry under Sections 107 and 108 of the Customs Act with a view to adjudging confiscation of dutiable or prohibited goods and imposing penalty Whether the DRI officers are 'proper officers' for the purpose of Section 28 of the Customs Act, 1962? - HELD THAT - This Court had the occasion to deal with the term 'proper officer' in the case of SWATI MENTHOL ALLIED CHEM. LTD. VERSUS JT. DIR., DRI 2014 (9) TMI 186 - GUJARAT HIGH COURT . The issue involved in the said matter pertained to the exercise of powers by the 'proper officers' vis-a-vis Sections 17, 18 and 28 of the Act. It was held that the notification, for the purpose of Section 2(34) of the Customs Act, assigns functions of the proper officer to the various officers including those under the Directorate of Revenue Intelligence, such as Additional Director, Joint Director, Deputy Directors and Assistant Directors for the purposes of Sections 17 and 28 of the Customs Act. The DRI officers are also Customs officers and have been conferred with the powers specified under the various provisions of the Customs Act, 1962. Misuse of Section 108 of the Customs Act, 1962 - allegations of harassment - HELD THAT - As such there is no credible material on record except the bare words of the writ-applicant on the basis of which we can arrive at the conclusion that the writ-applicant is being unnecessarily harassed by the DRI officials stationed at Vapi by summoning him time and again - the writ-applicant has, in the past, attended the DRI office at Vapi and his statements have also been recorded. We may only observe that if no further inquiry is necessary, then the writ- applicant may not be unnecessarily called at the office of the DRI at Vapi for the purpose of inquiry. Application disposed off.
Issues Involved:
1. Arrest without following due procedure under Section 28 of the Customs Act, 1962. 2. Arrest for cognizable offences without complying with Sections 154-157 of the Code of Criminal Procedure, 1973. 3. Jurisdiction of Directorate of Revenue Intelligence (DRI) officers. 4. Whether DRI officers qualify as 'proper officers'. 5. Applicability of the Supreme Court's decision in Om Prakash v. Union of India. 6. Allegations of undue harassment by DRI officials. Detailed Analysis: 1. Arrest without following due procedure under Section 28 of the Customs Act, 1962: The petitioner argued that no arrest can be made under Section 104 of the Customs Act, 1962 without following the procedure under Section 28. The court held that a Customs Officer can arrest any person if there is reason to believe that an offence punishable under Sections 132, 133, 135, 135A, or 136 has been committed. The Customs Officer is not required to follow the procedure under Section 28 for arrest. 2. Arrest for cognizable offences without complying with Sections 154-157 of the Code of Criminal Procedure, 1973: The petitioner contended that arrest for cognizable offences under the Customs Act, 1962 should comply with Sections 154-157 of the Code of Criminal Procedure, 1973. The court clarified that Sections 154-157 of the Code do not apply to arrests made under the Customs Act. The Customs Officer, after arresting a person, must inform the person of the grounds for arrest and take the person to a Magistrate without unnecessary delay. 3. Jurisdiction of Directorate of Revenue Intelligence (DRI) officers: The petitioner questioned the jurisdiction of DRI officers at Vapi to issue summons. The court noted that the DRI officers are appointed as officers of Customs with jurisdiction over the whole of India as per notifications dated 7th July 1997 and 7th March 2002. Therefore, the DRI officers at Vapi have the jurisdiction to issue summons under Section 108 of the Customs Act, 1962. 4. Whether DRI officers qualify as 'proper officers': The petitioner argued that DRI officers are not 'proper officers' under the Customs Act, 1962. The court referred to various notifications and amendments, including the Finance Act, 2019, which clarified that DRI officers are 'proper officers' for the purposes of the Customs Act, 1962. The court concluded that DRI officers are indeed 'proper officers' and have the authority to issue show-cause notices and conduct investigations. 5. Applicability of the Supreme Court's decision in Om Prakash v. Union of India: The petitioner relied on the Supreme Court's decision in Om Prakash, which dealt with the bailability of offences under the Central Excise Act, 1944, and the Customs Act, 1962. The court clarified that Om Prakash focused on whether offences under these Acts are bailable or non-bailable. The decision does not apply to the present case as it dealt with a different context and the provisions of the Customs Act have been amended since then. 6. Allegations of undue harassment by DRI officials: The petitioner alleged harassment by DRI officials at Vapi. The court found no credible material to substantiate these allegations. However, the court advised that if no further inquiry is necessary, the petitioner should not be unnecessarily summoned for interrogation under Section 108 of the Customs Act, 1962. Final Conclusions: 1. Customs Officers can arrest without following the procedure under Section 28. 2. Sections 154-157 of the Code of Criminal Procedure do not apply to arrests under the Customs Act. 3. DRI officers at Vapi have jurisdiction to issue summons. 4. DRI officers are 'proper officers' under the Customs Act. 5. The decision in Om Prakash does not apply to the present case. 6. Allegations of harassment are not substantiated, but unnecessary summoning should be avoided. The writ-application was disposed of accordingly.
|
