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TMI Blog2020 (11) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... y delay. Sub-section (3) of Section 108 stipulates that, where an officer of Customs has arrested any person under sub-section (1), he shall, for the purpose of releasing the arrestee on bail or otherwise, have the same powers as an officer-in-charge of a police station under the Code of Criminal Procedure, 1898 (5 of 1898). There are substance in the contention of the learned Counsel for the petitioner that the interdiction in Section 172(3) Cr.P.C cannot be relied on to deny copies their Section 108 statements to the accused - Even though there are merits in the contention put forth by the learned Senior Counsel that an application under Rule 222 of the Criminal Rules of Practice ought to be filed on the administrative side, the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DHIKA RAJASEKHARAN P. SHRI.JACOB GEORGE PALLATH SHRI.NAVEEN T.U. FOR THE RESPONDENT : R1 BY SRI.SASTHAMANGALAM AJITHKUMAR, PP FOR CUSTOMS,COCHIN COMMISSIONERATE ORDER Petitioner is the 3rd accused in O.R.No.7 of 2020, registered by the respondent, alleging commission of the offence under Section 135 of the Customs Act (for short, 'the Act'). She is the 2 nd accused in O.R.No.2 of 2020, registered by the National Investigation Agency (NIA) also, and was arrested by the NIA and remanded to judicial custody at Bengaluru. After remand, the petitioner was given to the custody of NIA for the purpose of interrogation. While so, the respondent, after obtaining permission from the Special Court for NIA Cases, formally arrest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 3. Referring to Rule 222 of the Rules, learned counsel for the petitioner submitted that copies of documents produced in court or in the custody of the court are bound to be issued, on an application being filed by a party to the proceedings. Assailing the finding based on Section 172(3) Cr.P.C, it is contended that a statement under Section 108 of the Act is distinct and different from a statement under Section 161 Cr.P.C and hence the interdiction in 172(3) of the Code is not applicable. Reliance is placed on the Division Bench decision in Kishin S Loungani v. Union of India and Others [2017(1) KHC 355] to buttress the contention. 4. Per contra, the learned Senior Counsel submitted that even in respect of an accused, who had give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 108 stipulates that, where an officer of Customs has arrested any person under sub-section (1), he shall, for the purpose of releasing the arrestee on bail or otherwise, have the same powers as an officer-in-charge of a police station under the Code of Criminal Procedure, 1898 (5 of 1898). 6. Section 108(1) confers Gazetted Officers of the Customs Department with the power to summon any person, whose attendance is considered necessary for giving evidence or to produce documents. Going by Sub-section (3) of Section 108, all persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and shall be bound to state the truth upon any subject, with respect to which they are ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the police officer who made them to refresh his memory or if the court uses them for the purpose of contradicting such police officer. 8. In Kishin S Loungini's case (supra), the Division Bench analysed the above provisions threadbare and after elaborate consideration of the precedents concluded that a person arrested under Section 104(1) of the Act need not necessarily be an accused, since the terminology used is 'any person'. It was held that registration of FIR is not necessary before arresting a person under Section 104. That, after Collecting all the materials with respect to the offence, the Customs Officer is not expected to file a final report as provided under Section 173(2) of Cr.P.C, and instead should file a compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. 11. On analysis of the provisions and the precedents, I find substance in the contention of the learned Counsel for the petitioner that the interdiction in Section 172(3) Cr.P.C cannot be relied on to den ..... X X X X Extracts X X X X X X X X Extracts X X X X
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