Case Law Details
Pushpalata Bai Vs Directorate of Revenue Intelligence and Another (Telangana High court)
Held that 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. Such summons not contrary to the provisions of Cr.P.C.
Facts-
During the course of search it was investigated that SKELLP was mis-declaring the export goods and was clandestinely diverting the gold generated out of such mis-declaration into local market. DRI 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. Subsequently, the petitioners received a summons u/s. 108 of the Customs Act. Against the summons, the petitioners approached the HC alleging the summons as illegal and contrary to the provisions of the Cr.P.C., and to direct the respondents to record the statement of the petitioners through video conferencing.
Conclusion-
Held that 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 Officer is not a police officer as per the judgment of the Hon’ble Apex Court in Barkat Ram’s case and the statement made before him by a person who is arrested or against whom an enquiry is made are not covered by Section 25 of the Indian Evidence Act.
Held that 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 Solicitor General of India also conceded that they were not insisting on the presence of petitioners No.1 and 2, it is considered fit to allow the petition with regard to petitioner Nos.1 and 2 and to dismiss the petition with regard to petitioner Nos.3 to 5. The petitioners No.3 to 5 are directed to comply with the summons and to give their statements in person and to co-operate with the investigation in the interest of justice.
FULL TEXT OF THE JUDGMENT/ORDER OF TELANGANA HIGH COURT
This writ petition is filed by the petitioners No.1 to 5 to issue writ of mandamus to declare the action of the respondents in summoning the petitioners under Section 108 of the Customs Act, 1962, as illegal and contrary to the provisions of the Cr.P.C., and to direct the respondents to record the statement of the petitioners through video conferencing.
2. The case of the Enforcement Directorate as stated by the respondents in their counter affidavit was that M/s. Sri Krishna Exim LLP (SKELLP) was a SEZ Unit, located at SDF-3A, Sy.No.1/1, Ravirala Village Road, Ranga Reddy District, Telangana. One Sri Pradeep Kumar was the Managing Partner of SKELLP. The 1st petitioner Smt. Pushpalata Bai and 2nd petitioner Sri Shiv Charan were the parents of Pradeep Kumar. The 3rd petitioner Bharati Agarwal was the wife of Pradeep Kumar. Petitioner 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 simultaneous and follow-up searches were then conducted. As per preliminary estimates, huge quantity of SEZ imported duty free gold valued at several hundreds of crores had been fraudulently diverted and sold in the local market by SKELLP, resulting in evasion of a substantial amount of customs duty, which would have otherwise been payable. Their further investigation revealed that such overvalued amounts were being brought back into the country through money laundering by a complex web of hawala operators from Hong Kong through a subsidiary company namely M/s. Krishe Limited Hong Kong. Such mis-declared goods were exported to the subsidiary company Krishe Limited in Hong Kong. The 3rd petitioner – Smt. Bharati Agarwal was one of the Directors of Krishe Limited. During 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, various incriminating goods such as imported gold bars, gold jewellery, precious stones, semi-precious stones, diamonds and Indian currency, totally valued at Rs.24,27,84,351/- were seized under the Customs Act, 1962. The DRI, Hyderabad Zonal Unit booked a case against SKELLP for diversion of imported foreign marked gold and mis-declaration of exports. During the course of investigation in relation to mis-declaration and smuggling of gold by SKELLP and SKJPL, statements of several persons, including the Managing Partner/Director Sri Pradeep Kumar were recorded under the provisions of the Customs Act, 1962. During the course of investigation into SKELLP, the respondents noticed that SKJPL was also diverting duty-free imported gold obtained from the nominated agency, i.e. MMTC Limited and evaded customs duty and violated the provisions of the Outright Purchase Scheme of the Foreign Trade Policy.
2.1. As per the preliminary estimates, the duty-free gold obtained from MMTC Limited which was valued at tens of crores of rupees, had been fraudulently diverted and sold in the local market by SKJPL, resulting in evasion of a substantial amount of customs duty. On 3rd and 4th May, 2019, a search was conducted at the premises of SKJPL and the officers of DRI, Hyderabad Zonal Unit seized two gold bars of 1 kg. (1000 gms.) each and 195 gold bars of 100 grams each on a reasonable belief that the same were liable to be confiscated under the provisions of the 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 management of SKELLP and SKJPL, DRI, Hyderabad Zonal Unit issued summons under Section 108 of the Customs Act, 1962 to all the partners and Directors of SKELLP and SKJPL to give evidence in order to ascertain the entire extent of smuggling activities and the role played by the petitioners.
3. In this factual background, the petitioners filed this writ petition contending that the investigation in regard to the alleged mis-declaration of exports and diversion of imported gold by M/s.SKELLP and M/s.SKJPL was already complete as show cause notice under Section 124 of the Customs Act had been issued by the respondents in the two cases. Hence, issuance of the impugned summons under Section 108 of the Customs Act to the petitioners was an abuse of process of law. The Hon’ble Apex Court in the case of the petitioners itself in W.P. (Crl.) No.329 of 2020 vide order dated 29.10.2020 directed the respondents not to take any coercive steps against the petitioners. The said petition was still pending before the Hon’ble Supreme Court. During the current pandemic situation, when there was surge of covid cases, the respondents could not insist upon the physical presence of the petitioners. Proviso to Section 160 Cr.P.C. was mandatory in respect of women and persons aged above 65 years. Article 15(3) of the Constitution of India contemplated that State was entitled to make special provisions for safeguarding the rights and liberty of women and children. Proviso to Section 160 Cr.P.C. was an example of such a provision to safeguard the liberties and dignities of women and it would cast a bounden duty upon the investigating agency to take the statement of a woman or a child at their place of residence. The 1st petitioner was an old lady aged about 72 years, the 3rd petitioner was a lady aged about 50 years and the 2nd petitioner was a senior citizen aged about 80 years. Therefore, the respondents could not insist upon their physical presence in view of the proviso to Section 160 Cr.P.C. The impugned summons were contrary to the said mandatory statutory provision. The exemption granted by the Statute was absolute and should not be violated by the respondents.
3.1 It was further contended that the statements recorded by the respondent were akin to the statements under Section 161 Cr.P.C. Thus, the petitioners were entitled to the benefit of proviso to Section 160 Cr.P.C. 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 this petition.
4. Heard Sri Mayank Jain, learned counsel representing Sri Vimal Varma Vasireddy, learned counsel for the petitioners and Sri T. Surya Karan Reddy, learned Additional Solicitor General of India for the respondents.
5. Learned counsel for the petitioners submitted that the impugned summons were contrary to the proviso to subsection (1) of Section 160 Cr.P.C., which provided that no woman or male person above 65 years of age shall be required to attend at any place other than the place he/she resides for the purpose of investigation. The summons issued to the petitioners required personal hearing of the petitioners. The exemption granted by the Statute was absolute. The Delhi High Court in the case of Asmita Agarwal v. Enforcement Directorate1 held that Section 160 Cr.P.C. would also apply to the officers of Enforcement Directorate. In the said case, it was further held by the Delhi High Court that the woman petitioner could be investigated at her residence in terms of Section 160 Cr.P.C. as Foreign Exchange Regulation Act, 1973 (FERA) was silent on the said aspect. Section 108 of the Customs Act was in pari materia with Section 50 of the Prevention of Money Laundering Act. Therefore, the Officers of Department of Revenue of Intelligence were bound by the provisions contained in Section 160 Cr.P.C. He also relied upon the judgment of the Delhi High Court in the case of Hanumanthaiah G. v. Assistant Director, Enforcement Directorate2, wherein the High Court directed the petitioners to join the enquiry through video conferencing.
6. Learned Additional Solicitor General of India submitted that the petitioners, instead of appearing before the Authorities and clarifying the facts, approached this Court seeking directions to carry out audio/video recordings of proceedings in the presence of the petitioners’ Advocate at a visible but not audible distance during the course of interrogation / or recording of any statements of the petitioners in respect of the investigation arising under a Special Act, i.e. the Customs Act, 1962. The Hon’ble Apex Court vide order dated 29.10.2020 in WP (Crl.) No.329 of 2020 issued notice and directed that no coercive steps should be taken against the petitioners. The Hon’ble Apex Court was yet to pronounce orders on the main plea of the petitioners. The 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., which were only applicable to a Police Officer, could not be imported to the Customs Act. The petitioners No.1, 2 and 3 were not entitled to the protection under the proviso to sub-Section (1) of Section 160 Cr.P.C. The Customs Act, 1962 was a self contained Act containing provisions relating to enquiry into the offences relating to import, export and smuggling of goods and punishments thereof. The scheme of Customs Act, 1962 would provide for conduct of investigation for adjudication which was of quasi-judicial in nature as well as for prosecution of the offenders under Section 135 of the Customs Act, 1962. In view of the special provisions regulating the manner or place of investigation, enquiry, trial or otherwise dealing with such offence under the Customs Act, 1962, the provisions of the customs Act would prevail over the provisions of Cr.P.C.
6.2. He further contended that the petitioners’ prayer to record the statements through video conferencing was not possible as the data was huge and confidential and could not be shared online. The petitioners were praying for video conferencing only to view the complete evidence available with the Department and to prepare a ground against the same. He relied upon the judgment of the High Court of Delhi in P.V. Rao v. Senior Intelligence Officer, Directorate General of GST Intelligence & Ors.3, wherein a similar prayer made by the petitioner therein to record his statement through video conference was rejected by the Delhi High Court. He further contended that the investigation was in its final stage and the DRI was waiting to record the statements of the petitioners who were Partners/Directors/Senior Management on the incriminating evidence available with the Department. He further agreed to omit the presence of the petitioners No.1 and 2 and requested to direct atleast the petitioners No.3 to 5 to comply with the summons and to give statements in person without further delay.
7. In the light of the contentions of both the learned counsel, the point to be decided is whether the provisions of Section 160 Cr.P.C. are applicable to Section 108 of the Customs Act, 1962.
8. It is considered necessary to extract the relevant provisions under Sections 4, 5, 160 and 161 of Cr.P.C. and Section 108 of the Customs Act, 1962 for appreciation of law on the subject. The provisions 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 time being in force.”
10. Thus, the provisions of Cr.P.C. cannot be applied to a special law, if it is in conflict with it.
11. Section 160 Cr.P.C. is provided under Chapter – XII of the Cr.P.C. It is relating to information to the police and their powers to investigate and it is also pertaining to police officers power to require attendance of the witnesses. Section 161 Cr.P.C. is with regard to examination of witnesses by police. Sections 160 and 161 Cr.P.C. read as follows:
“160. Police officer’s power to require attendance of witnesses:
(1) Any police officer, making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:
Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.
(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub- section (1) at any place other than his residence.
161. Examination of witnesses by police:
(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.”
Provided that statement made under this sub-section may also be recorded by audio-video electronic means.
Provided further that the statement of a woman against whom an offence 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.
(3) All persons so summoned shall be bound to attend either in person or by an authorised agent as such officer may direct; and 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: Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section.
(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).”
13. Sections 160 and 161 Cr.P.C. relate to investigation of an offence by a police officer. The various provisions of Chapter-XII of Cr.P.C. further reveal that there is express mention of Police Officer/Officer In-charge of a police station used in all the Sections governing investigations under the said Chapter.
14. The learned Additional Solicitor General of India submitted that the Customs Officers under the Customs Act, 1962 were not police officers for the purpose of Chapter XII of Cr.P.C. or for any other purpose and relied upon the judgment of the Hon’ble Supreme Court in the case of State of Punjab v. Barkat Ram4. The Hon’ble Apex Court while considering whether a Customs Officer was a Police Officer for the purposes of Section 25 of the Indian Evidence Act after considering the powers and duties of the Police Officers under the Police Act, as well as the duties of the Customs Officers under the Customs Act, 1962 held that:
“We are therefore of opinion that the duties of the Customs Officers are very much different from those of the police officers and that their possessing certain powers, which may have similarity with those of police officers, for the purpose of detecting the smuggling of goods and the persons responsible for it would not make them police officers.”
15. He also relied upon the judgment of the High Court of Bombay in Pukhraj Pannalal Shah v. K.K. Ganguly5, wherein it was held that:
“21. The resume of the various provisions made above clearly indicates that the whole purpose of the Act of 1962 is to safeguard the revenues of the country and its economy. It has nothing to do with the maintenance of law and order to prevention 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 Bombay after dwelling into the functionality and the underlying objects behind the power of investigation granted to the police and power to search, seize and arrest granted to Customs/Excise Officer arrived at the finding that the two cannot be equated.
17. The learned Additional Solicitor General of India submitted that under the Customs Act, 1962, wherever the Act intended that the Customs Officer should be treated on par with a Police Officer, a specific provision was incorporated to that effect and made a reference to Section 104(3) of the Customs Act. It reads as under:
“104. Power to arrest:
(3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same power and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898).”
18. He contended that if all the provisions of Chapter-XII of Cr.P.C., were interpreted as applying to investigations/enquiries under the Customs Act or any form of exercise of power by a Customs Officer under Chapter-XIII of the Customs Act, 1962, then the aforesaid Section 104 (3) would be rendered otiose.
19. On a careful perusal of the various provisions of the Customs Act, the contention of the learned Additional Solicitor General of India appears to be valid. Not only under Section 104(3) relating to arrest, but also under Section 105(2) relating to search of premises it was specifically mentioned that the Code of Criminal Procedure is applicable. Under Section 108(3) prviso, it is stated that the exemption under Section 132 of the Code of Civil Procedure shall be applicable. Thus, wherever the concerned provisions are applicable, it is specifically stated in the Act.
20. Learned counsel for the petitioners, on the other hand, relied upon the judgment of the High Court of Gujarat in Fozia Godil v. Union of India6, wherein the petitioner was summoned under Section 50 of the Prevention of Money Laundering Act (PML Act) for recording her statement and the petitioner filed the petition contending that she being a woman in the absence of compliance of Section 160 Cr.P.C., the summons were not sustainable, it was held that:
“42. However, so far as petitioner-Foziya Samir Godil is concerned, being 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 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.
22. Learned counsel for the petitioners relied upon the judgment of the Delhi High Court in Asmita Agarwal (1 supra), wherein while considering whether the provisions of Cr.P.C. would apply to an investigation carried under FERA, it was held by the Delhi High Court that:
“7. Contention of Mr. K.K. Sud, Addl. Solicitor General, that by directing to investigate here at here residence there has been a violation of the provision of FERA. We find no substance in this contention. Section 4 of the Code of Criminal Procedure deals with the trial of offence under the Indian Penal Code and other laws. Perusal of Sub Section 2 of Section 4 show that all offences shall be investigated, inquired into, tried, and otherwise dealt with under the same provision and the Code subject to the condition that if there is any enactment or a special Code regulating the manner or place of investigating, inquiring into, trying or otherwise then the Code will not apply. But as already pointed out above, FERA even though a special Code or enactment, nowhere provides as to where the investigation of woman is to be carried. therefore, in the absence of any provision available in the special enactment, the provision of Code would apply as laid down under Section 4(2) of the Code. In this respect reference can be made to the decision of the Supreme Court in the case of Directorate of Enforcement v. Deepak Mahajan and Anr. (Supra). In this case Apex Court held that the operation of Section 4(2) of the code is straightaway attributed to the areas of investigation, enquiry and trial of offences under the special laws including the FERA and the customs. Section 4 is comprehensive and that Section 5 is not in derogation of Section 4(2) of the Code. it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2) of the code. It has further been observed that the provision of the Code would be applicable to the extent in the absence of any contrary provision in the special Act or any other 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 investigation a woman or a minor under the FERA, therefore, we are of the view that the provisions of Section 160 of the code would apply in the facts of this case. It may, however, be made clear that the petitioner will fully co-operate with the investigating officer.”
23. Learned counsel for the petitioners contended that the provisions under the FERA and the Customs Act were in pari materia and they were applicable to Customs Act also. But, the Hon’ble Apex Court in Poolpandi v. Superintendent, Central Excise & Ors.,7 while considering the question whether a person is entitled to aid of counsel while questioning him during investigation under the provisions of the Customs Act or the Foreign Exchange Regulation Act, 1973, (FERA) held that:
“The persons being interrogated during investigation under the provisions of the Customs Act, 1962 or the Foreign Exchange Regulation Act, 1973 are not accused in the meaning of Article 20(3) of the Constitution and the right reserved by the Constitution in favour of accused persons cannot be expanded to be enjoyed by others.”
It further held that:
“Applying the ‘just fair and reasonable test’, it cannot be said that calling a person away from his own house and questioning him in the atmosphere of the customs office without the assistance of his lawyer or his friends either violates his constitutional right under Article 21 or amounts to mental torture.
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.”
24. Admittedly, the Hon’ble Apex Court observed in Pool Pandi’s case 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 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 Maharashtra8 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 Section 108 of the Customs Act have also come up for consideration before the Hon’ble Supreme Court in the case of Assistant Collector of Central Excise, Rajahmundry v. Duncan Agro Industries Ltd. and Ors. wherein it is held that Section 108 of the Customs Act does not contemplate any magisterial intervention. The power under the said Section is intended to be exercised by a Gazetted Officer of the Customs department. Sub-section (3) enjoins on the person summoned by the Officer to state the truth upon any subject respecting which he is examined. He is not excused from speaking the truth on the premise that such statement could be used against him. The said requirement is included in the provision for the purpose of enabling the Gazetted Officer to elicit the truth from the persons interrogated. Therefore, the challenge on the ground of violation of Article 20(3) is equally untenable. Support can also be derived from the decision of the Hon’ble Supreme Court in the case of Percy Rustomji Basta v. The State of Maharashtra wherein it is held that a person summoned under Section 108 of the Customs Act is bound to appear and state the truth when giving evidence. The fact that the petitioners have chosen not to appear itself is indicative of the intention of the petitioners to evade participating in the investigation process. It cannot be expected that the department should adopt a system or practice of going to different places for the purposes of recording the statements of the persons under Section 108 of the Act during the course of investigation. For all these reasons, we are of the view that the provisions contained in Section 108 of the Customs Act are in accordance with the constitutional principles and they are not violative of either Article 14 or 20(3) of the Constitution of India.”
26. In Union of India v. Padam Narayan Agarwal9 the Hon’ble Apex Court held that:
“The power to arrest a person by a Customs Officer is statutory in character and cannot be interfered with. Referring to Section 108 of the Customs Act, it was held that Section 108 does not contemplate magisterial intervention. 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. 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 the said order is only an interim order and not a final order and also under the provisions of PML Act which is distinct and different from the Customs Act, 1962, the same is considered as not relevant to the facts of the case.
28. He relied upon the judgment of the Gauhati High Court in Pusma Investment (P) Ltd., v. State of Meghalaya & Others10. It is with regard to the notice issued by the Deputy Superintendent of Police, CID Headquarters, Meghalaya, Shillong, requiring the presence of the petitioners who were residing in New Delhi to appear before him at Shillong for recording their statements and for production of some documents in connection with a case registered against them with Laban Police Station. The Court quashed the notices observing that Section 160 Cr.P.C. authorized the Police Officer making an investigation by order in writing to require the attendance before himself on any person who was residing within the limits of his own police station or any adjoining police station, but could not summon persons residing in another State.
29. In the said connection it was observed that under the proviso to sub-Section (1) of Section 160 Cr.P.C., firstly, the person to be summoned by the Officer making investigation must reside within the limits of his own police station or within the adjoining area, secondly, that in the case of a male person under the age of fifteen years or woman, their attendance could not be enforced at any place other than their place even if they reside within the limits of the police station of the police officer making the investigation or within the limits of the adjoining police station and thirdly, with reasonable expenses of every person other than a male person under the age of fifteen years or woman attending such requisition at any place within the limits of the police station of the officer making the investigation or the adjoining police station should have to be paid by the concerned police officer as per the Rules framed by the State Government in this behalf.
30. But, however, there is no dispute with regard to principle stated under Section 160 Cr.P.C. But, whether the same was applicable to the Customs Act or not is the issue before hand.
31. The judgment of the Hon’ble Apex Court in Ashok Munilal Jain and another v. Assistant Director, Directorate of Enforcement11 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 others12, 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 Officer is not a police officer as per the judgment of the Hon’ble Apex Court in Barkat Ram’s case (4 supra) and the statement made before him by a person who is arrested or against whom an enquiry is made are not covered by Section 25 of the Indian Evidence Act.
33. In the judgment of the Hon’ble Apex Court in K.I. Pavunny v. Assistant Collector (Head Quarter), Central Excise Collectorate13, it was held that:
“It would thus be clear that the object of the Act empowering Customs Officers to record the evidence under Section 108 is to collect information of the contravention of the provisions of the Act or concealment of the contraband or avoidance of the duty of excise so as to enable them to collect the evidence of the proof of contravention of the provisions of the Act so as to take proceedings for further action of confiscation of the contraband or imposition of the penalty under the Act etc. By virtue of authority of law, the officer exercising the powers under the Act is an authority within the meaning of Section 24 of Evidence Act.
[1] Though the authority/officer on suspecting a person of having committed the crime under the Act can record his statement, such a person per force is not a person accused under the Act. [2] he becomes accused of the offence under the Act only when a complaint is laid by the competent customs officer in the court of competent jurisdiction or magistrate to take cognizance of the offence and summons are issued. Thereafter, he becomes a person accused of the offence. [3] A statement recorded or given by the person suspected of having committed an offence during the inquiry under Section 108 of the Act or during confiscation proceedings is not a person accused of the offence within the meaning of Section 24 of the Evidence Act. [4] Though the Customs Officer is an authority within the meaning of Section 24 of the Evidence Act, by reason of statutory compulsion of recording the statement or the accused giving voluntary statement pursuant to his appearing either after issuance of summons or after the appellant’s surrender, such statement cannot be characterised to have been obtained by threat, inducement or promise. [5] The collection of evidence under Section 108 and other relevant provisions relating to search and seizure are only for the purpose of taking further steps for confiscation 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 Solicitor General of India also conceded that they were not insisting on the presence of petitioners No.1 and 2, it is considered fit to allow the petition with regard to petitioner Nos.1 and 2 and to dismiss the petition with regard to petitioner Nos.3 to 5. The petitioners No.3 to 5 are directed to comply with the summons and to give their statements in person and to co-operate with the investigation in the interest of justice.
37. In the result, the Writ Petition is partly allowed setting aside the summons dated 27.04.2021 issued by the respondents under Section 108 of the Customs Act with regard to petitioner Nos.1 and 2 and the writ petition is dismissed with regard to petitioner Nos.3 to 5. No order as to costs.
Miscellaneous Petitions pending, if any, shall stand closed.
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