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TMI Blog2022 (7) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically stated in the Act. In the PML Act, there is a specific provision under Section 65 stating that the provisions of Cr.P.C. are applied insofar as they are not inconsistent with the provisions of the said Act to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under the Act. But, there is no such specific provision in the Customs Act, 1962, applying the Code of Criminal Procedure to all the provisions relating to the stages of investigation, trial etc. Admittedly, the Hon ble Apex Court observed in the case of POOLPANDI VERSUS SUPERINTENDENT, CENTRAL EXCISE [ 1992 (5) TMI 147 - SUPREME COURT] that it was not at the whims of the person that the investigation should be done at his or her convenience. Hence, the petitioners could not take shelter of the judgment of the Delhi High court when it was not in accordance with the judgment of the Hon ble Apex Court. Whenever a statute creates a new offence and also sets up a machinery for dealing with it, the provisions of Cr.P.C. relating to the matters covered by such Statute would not be applicable to the said offences. The Customs Act was enacted in 1962 and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Nos.4 and 5 were the sons of Pradeep Kumar. SKELLP was one of the group companies of Sri Krishna Group, Hyderabad. Sri Shiv Charan was the Chairman and his son Pradeep Kumar was the Vice-Chairman and the Managing Director of Sri Krishna Group. M/s. Sri Krishna Jewellery Private Limited (SKJPL) was also one of the group companies of Sri Krishna Group, Hyderabad. SKELLP imported huge quantity of duty free gold under SEZ provisions to use the same for manufacturing and export of gold jewellery. SKELLP clandestinely diverted duty free gold into the domestic market and exported fake ornaments made from little quantity of gold by mis-declaring them as studded jewellery. Basing on intelligence that SKELLP was mis-declaring the export goods and was clandestinely diverting the gold generated out of such mis-declaration into local market, the officers of Directorate of Revenue Intelligence (DRI), Hyderabad Zonal Unit, intercepted one Sri B. Venkatesh, Assistant Security Officer, SKJPL at Siddiamber Bazar, Hyderabad on 03.05.2019 and seized 10 kgs., of foreign marked gold bars i.e. 10 gold bars of 1 kg. each, with defaced serial numbers under panchanama dated 03.05.2019. A series of simulta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962. Their investigation further revealed that duty-free gold smuggled by SKELLP and SKJPL was sold in the local market among others, to two gold bullion traders based in Siddiamber Bazar Road, Hyderabad and Gunfoundry, Hyderabad. The sale proceeds of smuggled gold of Rs.62,00,000/- and Rs.1,62,00,000/- were seized from the said two gold bullion traders under panchanamas dated 14.05.2019 and 16.05.2019 respectively on a reasonable belief that the same were liable to be confiscated under the provisions of Customs Act, 1962. The search and seizure operations conducted by DRI, Hyderabad Zonal Unit in relation to mis-declaration of exports and diversion of imported gold by SKELLP and SKJPL also resulted in recovery of lot of material evidence in the form of documentary records and vast electronic data. The electronic data was sent for forensic examination and the report on the same was also received. The petitioners had to be examined regarding the documentary evidence recovered and also the electronic data received after forensic examination. As several instances of smuggling were unearthed during the course of investigation and recording of crucial statements of higher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioners were law abiding citizens and always cooperated during the course of investigation. There was no necessity of seeking their personal presence by the respondents. Seeking their personal presence was only to harass the petitioners. The petitioners were ready and willing to cooperate in the enquiry and could join the investigation through video conference. The statement made by a summoned person could be used against their own interest, in case they were made as an accused. The petitioners were still not aware whether they were being called as a witness or as an accused. The compelling attendance of the petitioners was violative of Article 20 (3) of the Constitution of India as well as the provisions of Section 91 of Cr.P.C. Section 108 of Customs Act would provide that the summoned person was bound by the statement. The proceedings conducted were judicial proceedings within the meaning of Sections 193 and 228 IPC. The petitioners were apprehending that while recording their statements in person under Section 108 of the Customs Act, they might be arrested and forced to give statements incriminating themselves. Having no other alternative remedy, the petitioners filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he DRI, Hyderabad Zonal Unit filed a counter affidavit in the said writ petition. There was in fact evidence to suggest that the petitioners were involved either directly or indirectly in the smuggling of duty free gold from SKELLP in Hyderabad Gems SEZ Limited or from MMTC Limited. As the issue was time bound and the Managing Partner/Managing Director Shri Pradeep Kumar was going abroad frequently under the guise of business development, DRI, Hyderabad Zonal Unit to speed up the investigation issued summons dated 27.04.2021 to the petitioners for their appearance. 6.1. He further contended that the Customs Officers under the Customs Act, 1962, were not police officers as stated under Chapter-XII of Cr.P.C. or for any other purpose. Wherever Cr.P.C. was applicable to an investigation under the Customs Act, 1962, the same had been specifically provided in the said Act. The statements recorded under Section 108 of the Customs Act were distinct and different from the statements recorded by the police officers under Section 161 Cr.P.C. The summons were issued under Section 108 of the Customs Act, 1962 but not under Section 161 Cr.P.C. The provisions of Sections 160 and 161 Cr.P.C., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Cr.P.C. are applicable to all the offences under IPC and also to the offences under other laws subject to the provisions in the said enactments dealing with the relevant aspects on investigation, enquiry and trial. 9. Section 4 of Cr.P.C. reads as follows: 4. Trial of offences under the Indian Penal Code and other laws : (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 10. A savings clause is provided under Section 5 of Cr.P.C. as follows: 5. Saving: Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB, Section 376-E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer. 12. As the summons were issued to the petitioners under Section 108 of the Customs Act, it is considered necessary to extract Section 108 of the Customs Act, 1962. It reads as follows: 108. Power to summon persons to give evidence and produce documents: (1) Any gazetted officer of customs duly empowered by the Central Government in this behalf, shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under control of the person summoned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of crimes. It is intended to prevent evasion of duty and in order that the duty might not be evaded, the evasion is made an offence and it is only to a limited extent and for that limited purpose that powers of searches, seizure and investigation are given to the Customs officers. Further reference to the provisions also shows that it is not obligatory on the Customs authorities to prosecute every person who has violated the provisions of the Act of 1962. Indeed, it must depend upon the facts of each case. There may be cases which are not of much importance and there may also be cases which by their gravity might be serious. In some cases no prosecution might be called for while in the other prosecution may become necessary. If, therefore, the test as laid down in Badaku Joti's case, , is to be applied, inasmuch as the Customs officers are not equated with police officers acting under the Criminal Procedure Code and are not bound to make a report, it is clear that they cannot be regarded as police officers and statements recorded by them cannot be hit by S. 25 of the Indian Evidence Act. 16. In the above judgments, the Hon ble Apex Court as well as the High Court of Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a woman, it is rightly contended by the learned counsel for the petitioners that she is entitled to benefits of all the procedures applicable to the woman under the relevant law and to that extent, the respondents at the threshold shall have to comply with the provisions of law. 43. The contention that exclusive procedure for summoning a person under Section 50 not providing the safeguards to a woman as under various provisions of Cr.P.C. and therefore, no benefit as is available to the woman under Cr.P.C. can be conferred upon her, is devoid of merits and suffers from misconception of law inasmuch as concededly by virtue of Section 65 of P.M.L. Act, provisions of Cr.P.C. as are not inconsistent with the provisions of P.M.L. Act are applicable to the proceedings under P.M.L. Act and it cannot be said that the provisions providing safeguard to a woman under Cr.P.C. cannot stand with the provisions of P.M.L. Act and therefore, such provisions cannot be said to be inconsistent with P.M.L. Act. 21. In the PML Act, there is a specific provision under Section 65 stating that the provisions of Cr.P.C. are applied insofar as they are not inconsistent with the provisions of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special provision excluding the jurisdiction or applicability of the Code. That reading of Section 2 of the Code r/w Section 26(b) which governs any criminal proceeding as regards the course of which an offence is to be tried and as to the procedure to be followed renders the provision of the Code applicable in the field not covered by the provision of FERA or Customs Act. Admittedly, Apex Court in Deepak Mahajan's case (Supra) was not dealing with the proviso of Section 160 Cr.P.C. but was dealing with the applicability of Section 167 of the Code to a case to be filed under FERA. It is not denied that Section 160 and Section 167 of the Code fall under the same Chapter i.e. Chapter XII under the title Information to the police and their power to investigate . It was while dealing with and interpreting Section 167 Cr.P.C. under Chapter XII the Apex Court made the observation in Deepak Mahajan's case (Supra). The fact of the matter is that once the special legislation or enactment like FERA is silent with regard to certain procedure like where to investigate a woman, one cannot but have to have recourse to the code. Admittedly FERA is silent in this respect regarding investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e done at his or her convenience. Hence, the petitioners could not take shelter of the judgment of the Delhi High court when it was not in accordance with the judgment of the Hon ble Apex Court in the above case. 25. The Hon ble Apex Court while considering the challenge to the proviso to Section 108 on the ground that it was violative of Article 20(3) of the Constitution of India in Veera Ibrahim v. The State of Maharashtra 1976 AIR 1167 observed that: When the statement of a person was recorded by the Customs Officer under Section 108, that person was not a person 'accused of any offence' under the Customs Act. An accusation which would stamp him with the character of such a person was levelled only when the complaint was filed against him, by the Assistant Collector of Customs complaining of the commission of offences under Section 135(1) and Section 135(2) of the Customs Act. It is, therefore, clear that when the Summons is issued under Section 108, he is merely called upon to give his evidence for departmental proceedings and, therefore, there is no question of it being in violation of Article 20(3) of the Constitution of India. Similarly, provisions of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in evidence and could be used against him. Section 108 of the Customs Act enables the officer to elicit truth from the person examined. The underlying object of Section 108 is to ensure that the officer questioning the person gets all the truth concerning the incident. It was also held that the statements recorded under Section 108 of the Customs Act are distinct and different from the statements recorded by police officers during the course of investigation under the Code. The Supreme Court followed the decisions in Ramesh Chandra Mehta v, The State of West Bengal, AIR 1970 SC 940, and Assistant Collector of Central Excise, Rajahmundry v. Duncan Agro Industries Ltd., (2000)7 SCC 53. 27. The learned counsel relied upon the interim orders passed in WP Nos.32848 and 32849 of 2016 with regard to the applicability of Section 160 Cr.P.C. and whether the petitioner was justified in taking umbrage under the said provision or whether the provision of PML Act would prevail over the provisions of Cr.P.C., wherein it was held that: Until further orders, the 2nd respondent is directed not to proceed with pursuant to the impugned order and the matter shall be kept in abeyance. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18) 16 SCC 158 relied on by the learned counsel for the petitioners is with regard to the applicability of Section 167 (2) Cr.P.C. to the cases arising out of PML Act. The judgment of the Gauhati High Court in Niloy Dutta v. District Magistrate, Sibsagar District and others 1991 SCC OnLine Gau 37, relied on by the learned counsel for the petitioners is with regard to the applicability of proviso to Section 160 (1) Cr.P.C., to the exercise of power by the Army Authority under the Central Act 28 of 1958. The above judgments are considered not applicable to the facts and issue in the present case. 32. Whenever a statute creates a new offence and also sets up a machinery for dealing with it, the provisions of Cr.P.C. relating to the matters covered by such Statute would not be applicable to the said offences. The Customs Act was enacted in 1962 and had created the offences under Chapter-XVI and the manner of enquiry and investigation are prescribed in Chapter-XIII. The Customs Act is enforced only by the Customs Officers by its own machinery. The Customs Officers are empowered with the power of investigation as contemplated under Chapter-XIII of the Customs Act, 1962. The Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of contraband and imposition of penalty. [6] The self-same evidence is admissible in evidence on the complaint laid by the Customs Officer for prosecution under Section 135 or other relevant statutes. 34. Considering the legal position and the object of the enactment of the Customs Act and the judgments of the Hon ble Apex Court extracted above, it is considered that the provisions of Section 160 Cr.P.C. are not applicable to Section 108 of the Customs Act, 1962. 35. The judgment relied on by the learned counsel for the petitioners in Hanumanthaiah G. s case (2 supra) is with regard to challenging the summons issued by the respondent therein under Section 50 of the PML Act, wherein they were directed to join the enquiry through video conferencing. As this aspect is raised by the petitioners in WP (Crl) No.329 of 2020 and the same is pending before the Hon ble Supreme Court, this Court does not intend to make any observations on it. 36. As summoning of the petitioners by the respondents would not amount to taking any coercive steps like arresting them or prosecuting them, but only to proceed forward with the investigation and, however, as the learned Additional S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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