IMPORTANT POINT
The court established that proceedings under the Customs Act for adjudication and prosecution are independent, allowing for simultaneous actions, and that summons issued under Section 108 are valid even when a show cause notice is pending.

JUDGMENT :

THE HONOURABLE MR. JUSTICE GOPINATH P.

The petitioner, an Inspector of Customs is presently posted in the Customs (Preventive) Department at Kannur. Upon the allegation that while serving as Inspector of Customs at the Thiruvananthapuram International Airport, he facilitated the smuggling of gold by certain persons, Ext.P2 show cause notice was issued to the petitioner under Section 124 of the Customs Act, 1962 (hereinafter referred to as ‘the Act’), where the petitioner was called upon to show cause as to why;

“(i) The seized 4083.43 gram of foreign origin gold valued at around Rs.2,48,06,838/-(Market value) should not be confiscated under Sections 111(d), 111(i), 111(l), 111(j) and 111(m) of the Customs Act, 1962 read with Section 123 of the Customs Act, 1962;

(ii) gold totally weighing 4500 gram valued at around Rs.2.73 crore smuggled by the syndicate during the previous occasions, should not be held liable for confiscation under Sections 111(d), 111(i), 111(j), 111(l) and 111(m) of the Customs Act, 1962 read with Section 123 of the Customs Act, 1962;

(iii) penalty should not be imposed on him under Section 112(a) and 112(b) of the Customs Act, 1962.”

The petitioner has filed Ext.P3 reply to Ext.P2 show cause notice, where he has taken the stand that he is not at all concerned with the proposals in (i) and (ii) above and that he is not liable to be imposed with any penalty under the provisions of Sections 112(a) and 112(b) of the Act. The said show cause notice is pending adjudication.

2. While so, the petitioner was issued with a summons under Section 108 of the Act (Ext.P9) for providing certain information and for recording the voice sample of the petitioner in connection with the investigation being carried on by the Directorate of Revenue Intelligence. The petitioner submitted Ext.P5 reply essentially taking up a contention that since the show cause notice had already been issued, the petitioner could not be called upon to provide any further evidence or material and therefore it was not proper to issue a summons to him under Section 108 of the Act. It was contended that the officer had become functus officio with the issuance of the show cause notice. The petitioner was favoured with Ext.P6 reply informing him that the issuance of the show cause notice did not take away the jurisdiction of the 7th respondent to issue a summons under Section 108 of the Act. The petitioner through his counsel replied to Ext.P7 again taking up a contention that the 7th respondent had no jurisdiction to issue summons pending adjudication of the show cause notice issued under Chapter XIV of the Act. In reply to Ext.P7, the petitioner was issued with Ext.P8 reply specifically pointing out that the summons was issued in connection with proceedings contemplated under Chapter XVI of the Act. It was also pointed out that one of the conditions imposed by the District and Sessions Court, Ernakulam while granting bail to the petitioner was that the petitioner shall appear before the investigating officer as and when required by him, till the complaint is filed. The petitioner has therefore approached this court seeking the following reliefs:-

“(1) To call for the records leading to Ext-P4, Ext-P6, Ext-P8 and Ext-P9 proceedings from the Respondents and issue a writ of certiorari or other appropriate writ, order or direction quashing Ext-P4, Ext-P6, Ext-P8 and Ext-P9 proceedings of the Respondents.

(2) To declare that Ext-P4, Ext-P6, Ext-P8 and Ext-P9 issued by the Respondents is without having any jurisdiction and therefore illegal.

(3) To issue such appropriate writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

3. Sri. Karthik J. Sekhar the learned counsel appearing for the petitioner would submit that though the proceedings under Chapter XIV and Chapter XVI of the Act are distinct and different, the guidelines for launching prosecution in relation to offences punishable under the C