TaxTMI 
TaxTMI 
2012 (4) TMI 208
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.... Wood to one Chellathambi and Anil Garodia @ Tinu, operating from Delhi. It had also been recorded, as though the petitioner was aware that one C.Sekar was an employee of Chellathambi and that he had also bought Red Sander Wood, from them, for the purpose of export. It had also been recorded as though the petitioner was involved in the export of Red Sander Wood to Dubai and other countries. In the statement recorded by the respondent, it had also been mentioned that the petitioner was involved in the export of Red Sander Wood, through his business friend Shahul Hameed, a citizen of Singapore, settled in Dubai and that one Sanath Kumar, is an associate of Shahul Hammed, who used to arrange clearance of Red Sander Wood, on behalf of the various export concerns. Such statements had been recorded by the respondent under undue influence, coercion and threat. Therefore, the petitioner had retracted the said statements. 2. The petitioner had further stated that he had been illegally detained for about 3 days. He had been produced before the Additional Chief Metropolitan Magistrate, New Delhi, on 30.11.2011, along with N.C. Chellathambi and Sekar, who were the other accused perso....
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....ction 108 of the Customs Act, 1962, is liable to be quashed, as it is vague. Under the guise of an enquiry, under Section 108 of the Customs Act, 1962, the respondent cannot conduct a roving enquiry, by adopting coercive steps, to obtain material particulars, to prosecute the petitioner. The summons issued, under Section 108(1) of the Customs Act, 1962, should specify the particular act of smuggling, in connection with which certain particulars could be asked for. However, it cannot be couched in vague terms, as in the present case. The description of the documents summoned to be produced should be clear and specific. The respondent is not entitled to call for all the documents and other evidence, from the petitioner, relating to the alleged smuggling of Red Sander Wood to Dubai and other places. As such, the impugned summons, is in violation of the principles of natural justice. Further, it is an attempt to harass the petitioner under the guise of enquiry. 7. The learned counsel appearing for the petitioner had submitted that, as per clause 3 of Article 20 of the Constitution of India, no person, accused of any offence, shall be compelled to be a witness against himself.....
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....nbsp; 10. The learned counsel had also submitted that the summon issued, under Section 108 of the Customs Act, 1962, cannot be said to be infringing clause 3 of Article 20 of the Constitution of India, as there is no compulsion on the part of the petitioner, to produce the documents and other evidence, which would amount to infringement of the right against self-incrimination. Therefore, the allegation on the part of the petitioner that the summons issued by the respondent is arbitrary, illegal and void cannot be sustained. 11. The learned counsel appearing for the respondents had relied on the following decisions in support of his contentions: 11.1. In RAMESH CHANDRA MEHTA Vs. THE STATE OF W.B., (AIR 1970 SC 940), the Supreme Court had held that any statement made, under Sections 107 and 108 of the Customs Act, 1962, by a person, against whom an enquiry is made, by a customs officer, is not a statement by a person accused of an offence. 11.2. In UNION OF INDIA Vs. PADAM NARAIN AGGARWAL (2008) 13 SCC 305), the Supreme Court had held that Section 108 of the Customs Act, 1962, does not contemplate magisterial intervention. The statements recorded, und....
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....e learned counsels appearing for the parties concerned and on a perusal of the records available and in view of the decisions cited supra, this Court is of the considered view that Section 108 of the Customs Act, 1962, empowers the respondent to issue the summons asking the petitioner to produce the necessary documents and other evidences, in relation to the case on hand. However, there is no doubt that clause 3 of Article 20 of the Constitution of India guarantees the right against self incrimination. It is clear that such a right can be claimed by a person only if he is accused of an offence, and if he is compelled to give evidence against himself. From the above decisions it is also evident that the protection, under clause 3 of Article 20 of the Constitution of India, would be available only when a person is formally accused of having committed an offence, either by way of a complaint or on the basis of a first information report. 13. It is not in doubt that the officer concerned has the power, under Section 108 of the Customs Act, 1962, to summon any person to appear before him, for an enquiry. It is the duty of the person so summoned to state the truth before the of....
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.... subject in respect of which he is examined, or to make statements and produce such documents and other things, as may be required. Therefore, the impugned summons cannot be set aside. The petitioner is required to appear and answer such questions and give such information regarding himself, which do not tend to incriminate him. In our view the petitioner is also not entitled to assistance of a lawyer at the time of the recording of his statement, under Section 108 of the Customs Act, 1962. 15.2. In THE ASSISTANT COLLECTOR OF CENTRAL EXCISE, RAJAMUNDRY Vs. DUNCAN AGRO INDUSTRIES LTD & OTHERS, the Supreme Court had held that the statement recorded by the customs officers, under Section 108 of the Customs Act, is admissible in evidence. The Court concerned has to test whether the inculpating portions were made voluntarily or whether it is vitiated on account of any of the premises envisaged in section 24 of the Indian Evidence Act, 1872. 15.3. In the decision, in K.I.PAVUNNY Vs. ASSISTANT COLLECTOR (HEAD QUARTER), CENTRAL EXCISE COLLECTOR, the Supreme Court had held that if the confession is retracted, it must be tested as to whether the confession had been made v....