Assessee not allowed to appear with Counsel to Record Statement U/s. 108 of Customs Act

Contention of the learned counsel for the petitioner is that the petitioner be allowed to appear before the authority concerned for recording the statement under Section 108 of the Customs Act in the presence of his counsel has no substance as there is no statutory provision which may allow a person to appear along with his counsel before the authorities concerned while his statement under Section 108 of the Customs Act is to be recorded. The case law which has been relied upon by learned counsel for the DRI the Apex Court in case of Poolpandi & Others v. Superintendent, Central Excise & Others (Supra) in which the earlier judgments of the Apex Court has been considered on the issue and the question which was raised and considered by the Court was- whether the witnesses had a constitutional right to the assistance of counsel during their interrogation as witness in the enquiry. The said contention was rejected by the Court that the witnesses had such a right. It was pointed out that the persons concerned were not accused and they could not claim the right available to an accused of being heard through his own counsel. The Apex Court further observed that the purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits thereunder should not be ”expanded” to favour exploiters engaged in tax evasion at the cost of public exchequer.

 Hence in view of the law laid down by the Apex Court in case of Poolpandi & Others v. Superintendent, Central Excise & Others (Supra) the presence of counsel refusal during interrogation/recording the statement of a person under the Customs Act would not be violative of Article 20 (3) and 21 of the Constitution of India.

The underlying object of Section 108 is to ensure that the officer questioning the person gets all the truth concerning the incident. The power is exercised by a gazetted officer of the Department. It obliges the person summoned to state truth upon any subject respecting which he is examined. He is not absolved from speaking truth on the ground that such statement is admissible in evidence and could be used against him. The provision thus enables the officer to elicit truth from the person examined.

FULL TEXT OF HIGH COURT JUDGMENT / ORDER

1. Heard Sri Mohit Singh, learned counsel for the petitioner, Sri Sanjay Kumar Singh, learned counsel for the DRI and Sri Ashish Pandey, learned A.G.A. for the State and perused the record.

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