2023 (3) TMI 1292 - HC - Customs

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

Kalpesh Ghevarchand Jain Versus Union of India Senior Intelligence Officer Directorate of Revenue Intelligence, Mumbai, State of Maharashtra

The court partially allowed the petition, permitting the petitioner's statement under Section 108 of the Customs Act, 1962, to be recorded with his ... Seeking recording of statement u/s 108 of Customs Act, 1962 in the presence of advocate at visible but not audible distance - seeking de-sealing of his premises - Smuggling of Gold - HELD THAT:- The best possible manner to deal with it is to allow presence of the advocate at a visible distance but beyond the audible distance. This will also ensure transparency in the enquiry that Custom Officers propose to make with the Petitioner and this is what has been done by this Court in several similar cases in the past - reliance can be placed in case of SHRI BYJU CHANDRASEKHARAN NAIR VERSUS UNION OF INDIA AND ANR. [2022 (4) TMI 1515 - BOMBAY HIGH COURT], HARSHBHAI AMARSHIBHAI GOYANI VERSUS UNION OF INDIA AND ORS. [2022 (4) TMI 1517 - BOMBAY HIGH COURT], MANIPRABHA IMPEX PVT. LTD. VERSUS UNION OF INDIA [2022 (4) TMI 1516 - BOMBAY HIGH COURT] - thus, the first prayer to the extent, it seeks presence of advocate at visible distance but not audible distance deserves to be allowed. De-sealing of the premises of the Petitioner - HELD THAT:- There is no power available with the custom authorities to seal premises of any person, which are nothing but a form of immovable property. Under Section 110 or Section 121 of the Customs Act, 1962 what can be seized and confiscated is the “goods” or movable property. Section 110 and Section 121 respectively empower the customs authorities to seize the goods liable to confiscation and confiscate the sale proceeds of the smuggled goods, which are sold by the person, having knowledge or reasons to believe that the goods are smuggled goods. The word “goods” has been defined in Section 2(22) of the Customs Act, 1962 and it includes (a) vessels, aircraft and vehicles (b) Stores (c) baggage (d) currency and negotiable instruments and (e) any other kind of movable property. It is thus clear that the seizure of the goods contemplated under Section 110 or Section 121 is only of movable property which is not immovable property. Even otherwise no immovable property can be seized and confiscated, though it can be attached and sold for making recovery of loss to or dues of the government as for example, when done in exercise of the power under Section 142 (1) (c) (ii) of the Customs Act, 1962, but that stage, however, is yet to reach in this case. Therefore, even the second prayer made in the petition deserves to be allowed. It is directed that if any statement of the Petitioner is to be recorded in terms of Section 108 of Customs Act, 1962, same shall be recorded in the presence of advocate of the Petitioner kept at a visible distance but not audible distance during interrogation. The prayer for videography is, however, rejected - Petition allowed in part. 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.