The presence of an Advocate during interrogation under Section 108 of the Customs Act, 1967, is permissible to ensure fair procedure.

JUDGMENT

Petitioners have approached this Court seeking to quash the summons issued under Section 108 of the Customs Act, 1967 (for short, ‘the Act’). Petitioners have also, in the alternative, sought for permission to appear before the Customs OfÏcers to be present along with an Advocate when their statements are being recorded under Section 108 of the Act.

2. Pursuant to a search conducted on 14.02.2025 in a property near petitioners’ residence, the Customs OfÏcers searched the petitioners’ residence and business premises also on 18.02.2025 and 03.03.2025. Subsequently, a summons was issued to the 1^st petitioner as per Exhibit-P1, to appear before them to give a statement under the Act. Immediately, on receipt of the summons, 1^st petitioner Exhibit-P2 representation requesting exemption from personal appearance and also, in the alternative, requested for a period of two months to appear, as he claimed that he is not in a position to walk. Once again, by Exhibit-P3 and Exhibit-P4, another summons was issued to the petitioners appear before the OfÏcer on 04.03.2025. Yet again, citing the month of Ramadan, petitioners requested further time for appearance and thereafter filed Exhibit-P6 afÏdavit in lieu of personal appearance. In the meantime, since the respondents insisted on petitioners appearing before them to give their statement, this writ petition has been filed, challenging the summons issued under Section

108 of the Act and for other reliefs.

3. A counter afÏdavit has been filed by the respondents pointing out, inter-alia, that there are materials, prima facie to show that the 1^st petitioner and his partner are leading traders in cigarettes of foreign origin illegally smuggled to India. It is also stated that the voluntary statements under Section 108 Act will be recorded in own handwriting of the petitioners, that too without any force or coercion, and all necessary rules and regulations will be complied with. It is further stated that the presence of an Advocate during the recording of the statement will hamper the investigation.

4. A reply afÏdavit has been filed by the petitioner denying the averments in the counter afÏdavit.

5. I have heard Sri. M. Ajay, the learned counsel for the petitioner as well as Sri. R. Harishankar, the learned Standing Counsel for the respondents.

6. Petitioners have been served with a summons under Section 108 of the Act. It is a procedure as prescribed by law. Once summons is issued under Section 108 of the Act, petitioners cannot evade from appearing before the Competent Authority for any reason whatsoever. An afÏdavit in lieu of statement under Section 108 of the Act is not a substitute, and therefore, the challenge against Exhibit-P1 is without any basis.

7. As far as the request for the presence of an Advocate during the stage of taking the statement is concerned, I am of the view that the said request is justified in the light of the decision of the Supreme Court inRohit Sakhuja v. Directorate of Revenue Intelligence [(2019) 18 SCC 821] as well as the decision in Birendra Kumar Pandey and Another v. Union of India and Another [2023 SCC Online SC 1552]. In the latter of the above cases, the Supreme Court permitted the Advocate of the petitioner therein to be present during interrogation within a visible distance beyond hearing range and also imposed a condition that the Advocate must be prepared to appear whenever petitioners therein were called to attend such interrogation.

8. The learned counsel for the respondents fairly submitted that respondents have no objection in permitting an Advocate to be present and also that, they do not