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TMI Blog2002 (8) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... summon was issued. The direction in such summons requiring the presence of the petitioner before the appropriate authority on the same day at 5 p.m. was duly complied with. 2.The other three writ petitions were made by one Sri Vikash Kumar Jain and others Sri Surendra Nath Gangwal and Sri Samir Saha. 3.Mr. Vikash Kumar Jain claimed to be the transporter carried the goods of the concerned company namely M/s. Chessman Impex Private Limited from India to Bangladesh. The allegation is that the Officers of the Directorate of Revenue Intelligence used third degree method to him. By brutal physical assault in the deadly night they forced the petitioner to write maize were carried and exported instead of wire rods. He was further forced to falsely implicate Sri Mahendra Kumar Jain, the petitioner of the first writ petition. Because of such brutal assault he blindly followed the dictate of the officers to save his life. Inspite of being told about his illness and past operation he was not spared. The condition of the petitioner deteriorated in the evening of 12th February, 2002 and only then he was let off at about 9.30 p.m. He was hospitalized. Certain signatures were also obtained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a staff of the Custom's clearing agent. He acted for export of both the consignments i.e. wire rods and maize. On 11th February, 2002 at about 7 p.m. petitioner was called to the office. Since the things were getting delayed the petitioner requested leave of the Officers present there and undertook to come down again on the next date i.e. 12th February, 2002 during office hours but he was not allowed to leave. The petitioner was directed to wait for considerable time and at the evening from 4 p.m. to 10 p.m. around 4 to 5 officers questioning about the export of the aforesaid company. The petitioner was beaten on back, hip, legs and also slaped on the face since he refused to give statement which was not true. This kind of torture and physical assault continued throughout the night of 11th/12th February, 2002 and the whole day till late evening in around 9 p.m. on 12th February, 2002. The petitioner also heard cries of other people in the same office. He was not allowed to meet with him. Petitioner was forced to write certain statements. 6.The aforesaid four writ petitions appear to be arising out of self same cause. Thus all are taken together for an analogous hearing. The cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso taken by the respondents. According to Mr. Bhaskar Sen, learned Senior Counsel appearing for the respondents that the first writ petition is based on apprehension and the other three writ petitions are based on allegations. Neither the Court can scrutinise such factual allegations nor Court can proceed on the basis of the apprehension. Therefore, there is no basis at all for entertaining the writ petitions. Moreover, the vagueness of the prayers of the writ petitions is such that the same cannot be given any credence at all. Firstly, they have complained about the summons to which the writ court normally does not interfere. Failing therewith they have tried to make out an alternative case. They have really asked for interrogation for limited hours. The petitioners have virtually given up their original prayers and developed their case on the basis of alternative prayers. The Court does not proceed on the basis of assumption. 9.According to me, respondents' submissions should be taken up at first because the same is related to very foundation of the writ petitions. 10.It appears from AIR 1992 S.C. 1795 (supra) that whenever a person is called upon for questioning during inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate order was made in respect of presence of lawyer to distinguish the position of the accused from non-accused as per Article 22 of the Constitution of India. This court never passed such order. However interpretation of friend of his choice in such judgment and in the present case are different from each other in view of the factual circumstances. The Supreme Court had proceeded on a prima facie case and upon observing nature and character of friends of such circle of people but in this case situation is different in all respect. In the odd hours of office the petitioners were forced to disassociate themselves from others. Therefore, an observer can be directed to be present in the office to help them without interfering into the true enquiry and investigations. He is as good as writer law does not prevent from giving permission. In the cited judgment nowhere it has been(e) stated that an arbitrary action cannot be challenged. Therefore, when an arbitrary action is complained of, court cannot behave like a silent spectator and proceed within the four corners of such prayers. Court's power is wide enough to mould the prayers to control the misdeed, if any. 12.According to me, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner. Whether legal practitioner can or cannot be present as an Observer was the prime question at the time of enquiry or investigation. However, the judgment is anterior to the Act come into force. Such Act gives protection of 'human rights' reiterating the right protected under Article 21 of the Constitution of India and on the basis of the International conventions. Therefore presently a test under such Act is required to be made if at all any complaints are made. 14.As against this background, I wanted to hear the submissions of the learned Counsel appearing on behalf of the petitioners in a row. Their general submissions are that the petitioners can be interrogated by the authorities as against the summons but not in the manner treating them inhumanly and without allowing to be accompanied by any observer. 15.According to them the Customs Officer is empowered to arrest a person if he has reasons to believe that such person is guilty of an offence punishable under Section 135 of the Act. Therefore, there is every possibility that a person, who is interrogated, can be taken into custody by applying the test of criminal law. By citing 1994 (4) SCC 260 (Joginder Kumar v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , further, contended that Sections 107, 108 of the Act do not authorize the Customs officer to detain a person in a prolonged custody and deprive him of elementary facility and privileges to which he is entitled. In such a situation taking them as captive persons and coercing them to give false statements or depriving them of elementary facilities are not authorized by the Act. As and when the officer violates any of these principles or coerce him to give false confessions it would always be open to the person concerned to complain of the same whenever the statements are sought to be used. If the allegations are established certainly nobody could rely or take note of such statements. Personal liberty cannot be cut out or cut down without fair legal procedure. The right to life enshrined in Article 21 is not limited to protection of life or facility but includes the right to live with human dignity. Any form of torture would be offensive to the human dignity and constitute an inroad into the right to live and therefore prohibited by Article 21 unless it is in accordance with procedure prescribed by law and stand on the test of reasonableness and non-arbitrariness. 18.In 1999 (2) C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is not the basic interest of such respondents but interrogation as per their sweet will is the basic interest which is other name of terror. There is no law which say that as against the summons Customs authorities will proceed for interrogation as per their sweet will forciably keeping in their custody for indefinite period. If it is done then it has to be construed as informal custody. Therefore, the law relating to accused in a custody has to be expressly or impliedly, applicable. If accused can get all benefits under Article 21 of the Constitution a person in such informal custody can say that he is also entitled to get relief under Article 21 of the Constitution of India. It cannot be said that the authority will behave in violation of Article 21 without declaring one as accused and Court will give premium to such illegality. This is not true interpretation of the ratio of the judgment reported in AIR 1992 S.C .1795 (supra). 20.Now a days, custodial violence is not unknown to the people and Court cannot refrain from taking any Judicial notice. If such violation exceeds the personal right and liberty as given under Article 21 of the Constitution of India, the writ Court is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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