JUDGMENT :

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant, apprehending arrest pursuant to the summons issued to him by the Directorate of Revenue Intelligence under Section 108 of the CUSTOMS ACT , 1962, has prayed for the following reliefs :

“(A) Issue Writ of Mandamus or Writ of Prohibition or any other order or directions holding that the investigations into the non-cognizable offence(s) under the Customs Act, 1962 without seeking order of the Magistrate under Section 155 Code of Criminal Procedure, 1973 to be null and void ab initio;

(B) Issue Writ of Mandamus or Writ of Prohibition or any other order or directions holding that the investigations into the Cognizable offence(s) under the CUSTOMS ACT , 1962 shall not be done without complying Sections 154 , 156, 157 & 172 Code of Criminal Procedure, 1973 and the investigation carried out for the cognizable offence(s) under the CUSTOMS ACT , 1962 without be illegal, non-est, null and void ab initio as also without jurisdiction; unconstitutional, arbitrary, violative of Article 14 and 21 of the Constitution of India.

(C) Issue Writ of Mandamus or Writ of Prohibition or any other appropriate Writ, Order or Directions and thereby this Hon’ble Court may Read Down, Expound, Elaborate and Delineate the Scope and ambit of provisions of CUSTOMS ACT , 1962 (as amended) especially those relating to Chapter XIII (Searches, Seizure and Arrest) especially Section 104; Chapter XVI (Offences and Prosecutions) especially Section 135 thereof (Evasion of duty or prohibitions), Section 137 (Cognizance of offences) etc. in harmony as well as in juxtaposition with Article 21 of the Constitution of India while striking balance with the individual right for fair procedure as also to ensure that resort to the penal action is taken by the Authorities within the sweep of such legal parameters.

(D) Issue Writ of Mandamus or Writ of Prohibition or any other appropriate Writ, Order or Directions deliberating and interpreting the scope as well as perspective of Section 108 of the CUSTOMS ACT , 1962 since the said sacrosanct provision has become a subject of abuse and misuse by the Respondents who are adopting arm Misting and browbeating methods to extort and extract self-incriminating statements on the pretext of the same being 'admissible in evidence', as the manner of invocation of Section 108 CUSTOMS ACT ,1962 and the interpretation of the same being accorded by the Respondents is completely in contravention to the settled law of the land including the ratio of law laid down by the Hon’ble Supreme Court, Inter alia. in “ Noor Aga Vs. State of Punjab , (2008) 16 SCC 417 ”; “ Nirmal Singh Pehalwan @ Nimma v. Inspector, Customs, Customs House , Punjab; (2011) 12 SCC 298 ”; “Vinod Solanki v. Union of India; (2008) 16 SCC 537” as well as the recent judgment rendered by an Hon'ble Two Judges Bench of the Hon'ble Supreme Court in “Tofan Singh Versus State of Tamil Nadu (2013) 16 Supreme Court Cases 31”, whereby, the matter has been referred to a larger bench in a case relating to NDPS Act (provisions contained in Section 67 of NDPS Act), inter alia, to resolve the issue as to whether such a statement is to be treated as statement under Section 161 of the Code of Criminal 'Procedure,1973 or it partakes the character of a statement under Section 164 of the of the Code of Criminal Procedure,1973 as also whether the officer investigating the matter under these special enactments would qualify as a p