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TMI Blog1991 (12) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... and Bill of Lading No. 232-86442764 dated 8-9-1991. When the abovementioned writ petitions were coming for admission, notice of motion was ordered on 30-9-1991. After hearing the arguments of the learned counsel on both sides, the following order is passed by me on 8-10-1991. "......... the facts and circumstances of the case and also the fact that the demurrage will be heavy if the goods are detained, I think suffice to direct the fourth respondent to complete the investigation within six weeks from today and thereafter the adjudicating authority can take up the matter for adjudication and pass orders within two weeks from the date of receipt of the report from the investigating authority. Recording the undertaking of Mr. Thiyagarajan, learned senior counsel for the petitioner that the petitioner is prepared to waive the show cause notice, it is open to the respondent to make an adjudication even without issuance of show cause notice. It is made clear that the petitioner will not be allowed to question the adjudication proceedings on any ground, especially violation of principles of natural justice. Ordered accordingly. No costs...." The nature of goods imported in W.P. No. 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n issued to different bills of entry and as such the summons issued show total non application of mind on the part of the fourth respondent. The learned counsel further argues that the only question to be decided is with regard to the valuation which has to be made according to Rules 5 to 8 of the Customs Valuation Rules and as such it is not necessary for the respondents to summon the petitioner for any enquiry. According to the learned senior counsel, when the petitioners in both cases have waived the show cause notice and asked for only enquiry, it is not necessary for respondents to issue summons for an enquiry under Section 108 of the Customs Act. The learned senior counsel further refers to certain decisions for the purpose of showing the evidentiary value of an affidavit. For that purpose, the learned senior counsel also refers to a passage in "Sarkar in Evidence" 11th Edition page 1391, and the decisions reported in [1988 (38) E.L.T. 535 at 548], [1988 (36) E.L.T. 369], in [1979 (4) E.L.T. 212] and in (A.I.R. 1956 S.C. 554). According to the learned senior counsel the dispute is only with regard to the value. According to the learned senior counsel for the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1989 (42) E.L.T. 523 (Mad.) is also referred to. 6. After considering the arguments of Mr. R. Thiyagarajan, the learned senior counsel appearing for the petitioners and of Mr. Habibullah Basha, the learned senior counsel appearing for the fourth respondent and of Mr. P. Narasimhan, the learned Senior Central Government Standing Counsel, appearing for other respondents, I am of the view that there are no merits in the writ petitions. Section 107 of the Customs Act reads as follows : "..Power to examine persons :- Any officer of customs empowered in this behalf by general or special order of the Collector of Customs may during the course of any enquiry in connexion with smuggling of any goods, — (a) require any person to produce or deliver any document or thing relevant to the enquiry; (b) examine any person acquainted with the facts and circumstances of the case...." Section 108 of the Customs Act reads as follows : "..Power to summon persons to give evidence and produce documents :- (1) Any gazetted officer of customs 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Old Sea Customs Act. In my view, it appears that Section 108 of the Customs Act is enacted to facilitate an enquiry to find out whether an offence had been or is being committed. The Customs Officer is entitled to serve a summons to produce a document or other thing or to give evidence in order to collect evidence. I am also of the view that the power to arrest, the power to detain, the power to search or obtain a search warrant and the power to collect evidence are vested in the Customs Officer for enforcing compliance with the provisions of the Sea Customs Act. The power under Section 108 of the Customs Act itself contemplates an enquiry and as pointed out by the Supreme Court in P. Rustomji v. State of Mharashtra (A.I.R. 1971 S.C. 1087) the Customs Officer making an enquiry under Section 107 or 108 of the Customs Act is not a police officer and the person against whom enquiry is made is not an accused person. A person who is summoned under Section 108 of the Customs Act may have nothing to do with the actual smuggling of goods although he may know other relevant facts regarding such goods. That is why even a person who has nothing to do with actual smuggling of goods can also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause (3) of Section 108 and held as follows : ".. Section 107 of the Customs Act enables an officer of Customs empowered in this behalf during the course of an enquiry in connection with the smuggling of any goods to require any person to produce or deliver any document or thing relevant to the enquiry and to examine any person acquainted with the facts and circumstances of the case. Section 108 gives power to any Gazetted Officer of Customs 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 in connection with the smuggling of any goods. Clause (3) of Section 108 further provides that all persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct and that all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required. These provisions, therefore, enable a Customs Officer to summon any person to give evidence or for the purpose of interrogation in connection with any enquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e used and if the allegations are established, certainly nobody could rely or take note of those statements. In this connection we may note that a Full Bench of this Court in the decision reported in Roshan Beevi v. Joint Secretary to the Government, Tamil Nadu Public Department etc. [1983 Law Weekly (Cri.) p. 289] in paragraph 48 observed: "If, in a given case, the Customs official detains any person required or summoned under the provisions of the Customs Act for a prolonged period, even exceeding twenty-four hours, or keeps him in closed doors as a captive prisoner surrounded by officials or locks him in a room or confines him to an office premises, he does so at his peril because Ss. 107 and 108 of the Customs Act do not authorise the officer belonging to the Customs Department to detain a person for a prolonged custody and deprive him of the elementary facilities and privileges to which he is entitled. In such a situation, the officer must be held to have over-stepped his limits, and any confessional statement obtained from such a person by keeping him in a prolonged custody has to be recorded with grave suspicion, because there is always room for criticism that such a confess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of Art. 20(3) of the Constitution since the examination is not of an accused person. Nor is there any warrant for saying that the section excludes, as a legal limitation, the Customs House as a venue for such examination. "Any place" in the section obviously means any place and a contrary view is so untenable that counsel did not seriously urge it. Indeed, often times it is more convenient for all concerned to move to the quiet and convenience of an office for recording statements. A businessman may be wantonly humiliated if he is arrested and kept in the bazaar and interrogated at length in the presence of a crowd which is sure to collect. The provision is plain that an authorised Customs official is entitled to examine any person at any time, at any place, in the course of an enquiry...." So, considering the catena of decisions cited supra, with regard to scope of Sections 107 and 108 of the Customs Act, I think the contention raised by learned senior counsel appearing for the petitioners is devoid of merits. As I have already stated simply because some documents and affidavits are with the respondents, I am of the view in no way the Department is barred from issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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