2020 (6) TMI 460 - HC - Customs

Court Invalidates Customs Act Summons, Protects Petitioners' Rights

Menka Gambhir, Rujira Naroola Versus Union of India & Ors.

The court quashed the summons issued under Section 108 of the Customs Act, finding it invalid as it was not issued by the designated inquiry officer. ... Cancellation of summons - Jurisdiction - Import of jewellery in violation of Baggage Rules - High Profile case - Connivance of the Police officers - prohibition on customs authority for initiating enquiry under Section 108 of the Customs Act, 1962 - offence under Section 133 of Customs Act - HELD THAT:- The Commissioner of Customs on 26th March, 2019 prima facie formed his opinion to enquire and seek presence of the petitioners in connection to an incident that occurred on the night of 15/16th March, 2019 and sought aid in enquiry directing Joint/Additional Commissioner of Customs, AIU, NSCBI, Airport, Kolkata to issue summons to the petitioners and the petitioners were directed to appear before Additional Commissioner of Customs (Airport Administration) on 8th April, 2019 for giving evidence and/or produces documents or things in relation to the incident which occurred on 15th /16th March, 2019. A separate issue that some unknown police officers entered the international arrival hall of NSCBI Airport, Kolkata and assisted the writ petitioners to exit the gate of customs and such incident was informed to the jurisdictional police station by the Assistant Commissioner of Customs by filing a complaint on 22nd March, 2019. The said complaint was not only against the writ petitioners but also against some unknown police officers who assisted the writ petitioners. The complaint was filed on 22nd March, 2019 is a undisputed fact - The customs authorities had filed the complaint on 22nd March, 2019 and after the complaint was filed, the police has acted upon the same by taking magisterial approval under section 155 of the Code of Criminal Procedure. Thus, the customs lost its jurisdiction to inquire any further in respect of the complaint and is restrained from making parallel inquiry. Section 108 of the Customs Act clearly mandates that proceedings under section 108 is quasi judicial in nature. The person issuing summons has to satisfy qualitative ingredients as prescribed in Section 108 of the Customs Act. In this case, the Additional Commissioner, AIU NSCBI Airport, Kolkata who has issued the summons dated 26th March, 2019 to the petitioners is not the inquiry officer and he has not formed any opinion regarding attendance of the petitioners and he has only directed the petitioners to appear before another Additional Commissioner (Airport Administration) Customs, who is also not the inquiry officer. But when a statute provides that the power under Section 108 of the Customs Act must be exercised in a certain manner, then such power has to be wielded in the same manner and none other. For the above reasons the summons dated 26th March 2019 issued to the petitioners are quashed and set aside. Petition disposed off. Issues Involved:1. Validity of Summons Issued under Section 108 of the Customs Act, 1962.2. Jurisdiction of Customs Authorities after Filing Complaint with Police.3. Protection under Article 20(3) of the Constitution of India.Detailed Analysis:1. Validity of Summons Issued under Section 108 of the Customs Act, 1962:The petitioners challenged the summons issued under Section 108 of the Customs Act, 1962, arguing that it was beyond jurisdiction and contrary to the Act. The court examined whether the summons met the necessary elements of a valid summons under Section 108, which include that a gazetted officer must conduct the inquiry himself, must consider the attendance of the summoned necessary, and the attendance must be before the same officer. The court found that the Additional Commissioner, AIU NSCBI Airport, Kolkata, who issued the summons, was not the inquiry officer and had not formed any opinion regarding the attendance of the petitioners. Instead, the petitioners were directed to appear before another Additional Commissioner (Airport Administration) Customs, who was also not the inquiry officer. The court held that when a statute provides that power must be exercised in a certain manner, it must be wielded in that manner and none other. Therefore, the summons dated 26th March 2019 issued to the petitioners were quashed and set aside.2. Jurisdiction of Customs Authorities after Filing Complaint with Police:The petitioners argued that the Customs authorities had no power to conduct any inquiry or investigation after filing the complaint dated 22nd March 2019 with the police. The court noted that the Customs authorities had filed a complaint on 22nd March 2019, and the police had acted upon it by taking magisterial approval under Section 155 of the Code of Criminal Procedure. The court held that once the police had started its investigation and the adjudication of the offences would necessarily have to be by a magistrate, the Customs authorities lost their jurisdiction to inquire any further in respect of the complaint and were restrained from making a parallel inquiry. However, the court allowed the Customs authorities to inquire into the two contested and irreconcilable versions of an event that occurred inside the 'Customs Airport' as defined in Section 2 of the Customs Act, but only to the extent of any violation of the Customs Act by the petitioners affecting government revenue.3. Protection under Article 20(3) of the Constitution of India:The petitioners contended that requiring them to appear before the Customs authorities would violate their protection under Article 20(3) of the Constitution, which states that no person accused of any offence shall be compelled to be a witness against himself. The court acknowledged that the petitioners had become accused once the Customs authorities filed a formal complaint with the police, and the police obtained magisterial permission to initiate an investigation. Therefore, the court recognized that the petitioners were entitled to protection under Article 20(3) and could not be compelled to give evidence against themselves in the ongoing inquiry by the Customs authorities.Conclusion:The court quashed the summons dated 26th March 2019 issued to the petitioners and restrained the Customs authorities from making a parallel inquiry after filing the complaint with the police. The Customs authorities were allowed to inquire into the contested event inside the 'Customs Airport' to the extent of any violation of the Customs Act affecting government revenue. The petitioners were granted protection under Article 20(3) of the Constitution, preventing them from being compelled to give evidence against themselves. The writ petitions were disposed of with no order as to costs.