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High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. M. N. CHANDURKAR & THE HONOURABLE MR. JUSTICE SRINIVASAN
Vittalnathan - Appellant
Versus
Collector of Customs - Respondent
Case No : Writ Appeal Nos. 1015, 1017 and 1021 of 1987
Decided On : 30 November 1987
CUSTOMS ACT, 1962 - SECTIONS 107, 108 - SUMMONS - ENQUIRY - SCOPE - POWER OF CUSTOMS OFFICER - RIGHT TO LAWYER - ARREST - WITNESSES - EXAMINATION - STATEMENT - COMPULSION TO WRITE DOWN OWN STATEMENT.
Fact of the Case:
The petitioners, appellants in the present case, challenged the order of the learned single judge, who held that they were bound to appear in pursuance of the summons under Section 108 of the Customs Act, 1962 (the Act) and that they were not entitled to have the presence of a lawyer at the time when their statement was recorded.
Finding of the Court:
The court held that the petitioners were bound to appear in pursuance of the summons under Section 108 of the Act and that they were not entitled to have the presence of a lawyer at the time when their statement was recorded.
Issues: 1. Whether a summons under Section 108 of the Act can be issued unless an enquiry as contemplated by Section 124 of the Act is commenced by a notice to show cause? 2. Whether a person summoned under Section 108 of the Act has the right to be accompanied by a lawyer? 3. Whether a witness summoned under Section 108 of the Act can be compelled to write down his own statement?
Ratio Decidendi: 1. Section 108 of the Act contemplates an enquiry which is almost parallel to the enquiry under Section 171-A of the old Sea Customs Act. The power to collect information by summoning persons to give evidence and produce documents contained in Section 171-A of the Sea Customs Act, was an independent power. 2. There is no right in the person examined under Section 108 of the Act to have a lawyer present at the time of interrogation because the investigation has necessarily to be secret and even the identity of the person interrogated or examined may have to be kept secret until a late stage of the investigation. 3. There is no authority in any provision of law which can compel a witness to write down his own statement.
Final Decision: All the appeals were dismissed with no order as to costs.
M.N. CHANDURKAR, CJ
Even after hearing the learned counsel for the appellants at considerable length we are not satisfied that there is any infirmity in the order of the learned single judge. In his order the learned judge has held that the petitioners are bound to appear in pursuance of the summons under Section 108 of the Customs Act, 1962 (hereinafter referred to as the Act) and that they are not entitled to have the presence of a lawyer at the time when their statement is recorded. As we fully endorse the reasons given and the view taken by the learned Judge while dismissing the writ petitions, we do not think it necessary to deal in extenso with the arguments advanced before us. However, since the matter has been argued at considerable length we might briefly indicate the two contentions and the reasons for rejecting them.
2.The first contention was that a summons under Section 108 of the Act cannot be issued unless an enquiry as contemplated by Section 124 of the Act is commenced by a notice to show cause as to why either the goods should not be confiscated or that penalty should not be imposed on the persons concerned. Reliance has been placed for this view on the decision of the Gujarat High Court inUnion of Indiav. Abdul Kadar Abdulgani (1985 Crl. LJ 324) Central Government rep. by theDirector, Enforcement Directorate, New Delhiv.Alfred James Femandez 1987 (31) ELT 902, 1987 AIR(Ker) 179 ) andPukhrajv. K.K. Ganguty (AIR, 1968 Bombay 433). In the decision of the Gujarat High Court that Court had held that the stage of recording of statements under Section 108 arises only when an inquiry is started either for confiscation of the goods or for imposing penalty and this is very clear from the wordings of Section 108. That Court also held that so far as Section 107 is concerned it takes care of investigatory emergencies. Reliance for this view has been placed on the decision of the Supreme Court inBalkrishna Chhaganlal Soniv. State of West Bengal 1974 CAR 44, 1974 (80) CrLJ 280, 1973 CrLR(SC) 771, 1983 (13) ELT 1527, 1974 (3) SCC 567, 1974 SCC(Cr) 45, 1974 (2) SCR 107, 1974 SCC(Cri) 45, 1974 ACJ 13, 1974 AIR(SC) 120). The Kerala decision was a decision which dealt with Section 40 of the Foreign Exchange Regulation Act, 1973
3.Now insofar as this Court is concerned, the scope of Sections 107 and 108 of the Act was considered by a Full Bench of this Court inCollector of Customsv. K. Bhirumal Pahlajani (1987 I MLJ 408). Dealing with Sections 107 and 108, the Full Bench observed that what Section 107 contemplates is a less formal and rigorous type of enquiry by the Customs Officers, whereas Section 108 contemplates an enquiry which is almost parallel to the enquiry under Section 171-A of the old Sea Customs Act. Section 171-A was considered by this Court inRainbow Trading Co.v. Collector of Customs 1963 AIR(Madras) 434). In that decision a Division Bench of this Court has pointed out that from the setting of Section 171-A it appears that the Section is enacted to facilitate an enquiry to find out whether an offence had been or is being committed, and it may lead to a prosecution before the criminal Court, if an offence is disclosed or the Customs authorities might consider it sufficient to impose an administrative penalty without prosecuting the offender. InR.C. Mehtav. West Bengal 1999 (110) ELT 324, 1970 AIR(SC) 940, 1969 (2) SCR 461, 1970 (72) BomLR 787, 1970 CrLJ 863, 1961 AIR(Bom) 227, 1968 AIR(Cal) 28, 1971 (2) SCJ 123 at 466) while dealing with the provisions of the Sea Customs Act, 1878 it was observed as follows:
"Under the Sea Customs Act, a Customs Officer is authorised to collect customs duty to prevent smuggling and for that purpose he is invested with the power to search any person on reasonable suspicion (S. 169) to screen or X-ray the body of a person for detecting secreted goods (S. 170-A); to arrest a person against whom a reasonable suspicion exists that he has been guilty of an offence under the Act
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