Back
2017 Supreme(All) 2868
IN THE HIGH COURT OF ALLAHABAD
RAMESH SINHA, KRISHNA PRATAP SINGH, JJ.
PAWAN KUMAR @ PAWAN ARORA - Appellant
Versus
UNION OF INDIA - Respondent
Criminal Misc. Writ Petition No. 4424 of 2017
Decided on : 30-03-2017
Advocate Appeared:
For the Appellant :Mohit Singh, Advocate
The absence of statutory provision allowing a person to appear with counsel during the recording of a statement under Section 108 of the Customs Act and the non-bailable nature of certain offences under the Act.
Headnote:
Customs Act - Presence of Counsel during Recording of Statement - Section 108 - Summary of Acts and Sections: Section 104, Section 108 - The court discussed the provisions of Section 104 and Section 108 of the Customs Act, which lay down the power to arrest and summon power to a person to give evidence and produce documents. The court highlighted the power of the authorities to summon a person for giving evidence and produce documents and the consequences of non-compliance. The court also emphasized the non-bailable nature of certain offences under the Act and the absence of statutory provision allowing a person to appear with counsel during the recording of a statement under Section 108. The court referred to relevant case law to support its decision.
Fact of the Case:
The petitioner, a partner of a partnership firm engaged in export activities, sought a writ to allow the presence of counsel during the recording of his statement under Section 108 of the Customs Act and to receive prior notice in case of arrest. The petitioner had been repeatedly summoned by the Directorate of Revenue Intelligence (DRI) but had not appeared for recording his statement.
Finding of the Court:
The court found that the petitioner's request to have the presence of counsel during the recording of his statement under Section 108 of the Customs Act was not supported by statutory provisions. The court also rejected the petitioner's request for prior notice of arrest, citing relevant case law and statutory provisions.
Issues: The issues involved the petitioner's request for the presence of counsel during the recording of his statement under Section 108 of the Customs Act and the request for prior notice in case of arrest.
Ratio Decidendi: The court held that there is no statutory provision allowing a person to appear with counsel during the recording of a statement under Section 108 of the Customs Act. The court also emphasized the non-bailable nature of certain offences under the Act and the absence of statutory provision for prior notice of arrest.
Final Decision: The petition lacked merit and was dismissed by the court.
RAMESH SINHA, J.
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.
2. The petitioner has come up before this Court with the following prayer:-
(i) A writ, order or direction in the nature of writ of mandamus to the respondent to allow the presence of counsel of the petitioner during recording of the statement under Section 108 of the Customs Act, 1962 on every occasion;
(ii) A writ, order or direction in the nature of writ of mandamus to the respondents to give 3 days prior notice, in case the respondents proceed to arrest the petitioner for that purpose.
(iii) Any further writ, order or direction as the Hon'ble Court may deem fit and proper to secure the ends of justice.
(iv) An order awarding the cost of the petition to the petitioner.
3. The brief facts of the case are that the petitioner Pawan Kumar @ Pawan Arora is one of the partners of partnership firm M/s. Creative Brass, having its registered office at 2nd Floor, Shri Vallabh Complex, above Bank of Baroda, Near PMS School, Civil Lines, Moradabad which is running business activity of export of handicraft of brass and value addition of the brass. The said firm has two partners i.e. Shri Shrey Gupta and petitioner Pawan Kumar @ Pawan Arora who was added in the firm in July, 2013.
4. That during the course of some investigation the DRI Officers of NRU, Noida searched the office premises of the petitioner's firm at 2nd Floor, Shri Vallabh Complex, Above Bank of Baroda, Near PMS. School, Civil Lines, Moradabad. The officers had taken some documents i.e. three files containing invoices and two other files containing loose papers and prepared a Panchnama at the premises of the petitioners which has been enclosed as Annexure-P5. Another search was carried out on 20.09.2016 at the factory premises of M/s. Creative Brass at 5th KM Milestone, Rampur Road, Near Park Moradabad and the factory was found engaging in packing of brass handicraft items. Some other items were also taken by the officer i.e. weight book, purchase invoice, shipment, creative road challan etc. Copy of the panchnama dated 20.09.2016 carried out at the factory premises has been annexed and marked as Annexure-P6.
5. Thereafter the DRI issued summons dated 20.09.2016 to the petitioner being the partner of the firm to give evidence and produce imports/export documents related with import under duty exemption schemes and exports under drawback schemes and to appear on 21.09.2016 at 11:30 at Noida DRI. By letter dated 21.09.2016 the petitioner informed the Senior Intelligence Officer that due to some personal work was away from the city and requested to give another date for hearing in the following week after 26.09.2016. On 26.09.2016 the DRI issued the summons to the petitioner directing him to present himself on 04.10.2016. Similar summons were also sent to the petitioner on 04.10.2016 to appear on 14.10.2016 by the DRI on the same date in respect of proprietorship firm of the petitioner i.e. M/s. Ria Exports. Meanwhile the petitioner's partnership firm has deposited Rs. 1 Crore against the demand of customs duty and the said information has been supplied to the DRI vide letter dated 13.12.2016. Thereafter a summons dated 14.12.2016 has been issued in respect of M/s. Creative Brass and directed them to appear before the authority on 22.12.2016 along with the documents as mentioned in the summons dated 26.09.2016. It is submitted that substantial amount of documents in respect of the import and export made by M/s. Creative Brass has been deposited by the counsel of the partnership firm on 14.10.2016 and 20.10.2016 but the department did not consider the same. Meanwhile the partnership has deposited Rs. 40 Lacs against the customs duty. Again on 13.01.2017 summons were issued in respect of M/s Creative Brass as well as M/s. Ria Exports for appearance of petitioner before the
