2023 (3) TMI 1292 - HC - Customs

Court Allows Advocate Presence During Statement; Denies Videography; Orders De-sealing of Premises Due to Legal Limits.

The court partially allowed the petition, permitting the petitioner's statement under Section 108 of the Customs Act, 1962, to be recorded with his ... Recording of statement under Section 108 of the Customs Act, 1962 - presence of advocate at visible but not audible distance - sealing of premises by customs - seizure and confiscation limited to goods/movable property - interpretation of 'goods' under the Customs Act, 1962 - videography during recording under Section 108 of the Customs Act, 1962Recording of statement under Section 108 of the Customs Act, 1962 - presence of advocate at visible but not audible distance - Whether the petitioner is entitled to have his advocate present at a visible but not audible distance when his statement is recorded under Section 108 of the Customs Act, 1962. - HELD THAT: - The Court accepted the petitioner's apprehension of possible ill-treatment as a relevant consideration and treated the requested presence of counsel at a visible but non-audible distance as a harmless measure that promotes transparency in the inquiry. Reliance was placed on the Court's practice in similar matters. The Court observed that allowing counsel at visible but beyond audible distance protects the petitioner's legitimate concern without impeding the investigative process and is an appropriate safeguard during recording of statement under Section 108. [Paras 5, 9]The presence of the petitioner's advocate shall be permitted during recording of his statement under Section 108, the advocate to be kept at a visible distance but not within audible distance.Sealing of premises by customs - seizure and confiscation limited to goods/movable property - interpretation of 'goods' under the Customs Act, 1962 - Whether the customs authorities had power under the Customs Act, 1962 to seal the petitioner's immovable premises and whether the seal should be removed. - HELD THAT: - The Court analysed the statutory scheme and held that the powers of seizure and confiscation under the Customs Act (specifically in the context of Sections 110 and 121) relate to 'goods', which are defined to encompass vessels, aircraft, vehicles, stores, baggage, currency, negotiable instruments and other movable property, and do not extend to seizure or confiscation of immovable property. While immovable property may be attached or sold by other statutory processes for recovery of dues, the customs provisions relied upon do not authorize sealing of immovable premises. On this basis the Court directed removal of the seal affixed to the petitioner's premises. [Paras 6, 7, 10]The seal affixed to the petitioner's premises is not authorised under the customs provisions construed and shall be removed forthwith.Videography during recording under Section 108 of the Customs Act, 1962 - Whether videography of the interrogation/recording of statement should be permitted. - HELD THAT: - The Court rejected the petitioner's prayer for videography. While permitting the presence of counsel at a visible but non-audible distance, the Court declined to allow videography during the recording, indicating that the limited protective measure ordered was sufficient and that videography is not justified in the circumstances presented. [Paras 9]The petitioner's prayer for videography during recording is rejected.Final Conclusion: Petition partly allowed: the petitioner's advocate is permitted to remain at a visible but not audible distance during recording of his statement under Section 108; the seal on the petitioner's premises is ordered to be removed forthwith; the request for videography is refused. Rule made absolute in these terms. Issues involved: The issues involved in the judgment are the petitioner seeking relief to record his statement under Section 108 of Customs Act, 1962 in the presence of his advocate at a visible but not audible distance, and the petitioner seeking de-sealing of his premises.Recording of Statement under Section 108: The petitioner sought relief to have his advocate present at a visible but not audible distance during the recording of his statement under Section 108 of the Customs Act, 1962. The court considered the petitioner's apprehension due to alleged past assaults by Customs Department officers. The court allowed the presence of the advocate at a visible distance but beyond the audible distance to ensure transparency in the inquiry, citing similar cases where this was permitted. The court rejected the prayer for videography but granted the presence of the advocate under the mentioned conditions.De-sealing of Premises: Regarding the de-sealing of the petitioner's premises, the court noted that there is no provision in the Customs Act, 1962 authorizing custom officers to seal immovable property. The court explained that under Section 110 and Section 121 of the Customs Act, only goods or movable property can be seized and confiscated, not immovable property. The court emphasized that the seizure under these sections is limited to movable property as defined in the Act. As no power exists to seal immovable property, the court allowed the second prayer made by the petitioner to de-seal his premises.Conclusion: In conclusion, the court partly allowed the petition, directing that the petitioner's statement under Section 108 should be recorded in the presence of his advocate at a visible but not audible distance. The court rejected the prayer for videography but ordered the removal of the seal affixed to the petitioner's premises by the Respondent No.1. The court found no difficulty in allowing the petition in part and made the rule absolute in the mentioned terms.