TaxTMI 
TaxTMI 
2017 (3) TMI 1588
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....ay deem fit and proper to secure the ends of justice. (iv) An order awarding the cost of the petition to the petitioner. 3. The brief facts of the case are that the petitioner Pawan Kumar @ Pawan Arora is one of the partners of partnership firm M/s. Creative Brass, having its registered office at 2nd Floor, Shri Vallabh Complex, above Bank of Baroda, Near PMS School, Civil Lines, Moradabad which is running business activity of export of handicraft of brass and value addition of the brass. The said firm has two partners i.e. Shri Shrey Gupta and petitioner Pawan Kumar @ Pawan Arora who was added in the firm in July, 2013. 4. That during the course of some investigation the DRI Officers of NRU, Noida searched the office premises of the petitioner's firm at 2nd Floor, Shri Vallabh Complex, above Bank of Baroda, Near PMS. School, Civil Lines, Moradabad. The officers had taken some documents i.e. three files containing invoices and two other files containing loose papers and prepared a Panchnama at the premises of the petitioners which has been enclosed as Annexure-P5. Another search was carried out on 20-9-2016 at the factory premises of M/s. Creative Brass at ....
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....2017. In the said letter petitioner informed that all the documents with reference to M/s. Creative Brass has already been furnished on 14-10-2016 and 25-10-2016 and also deposited Rs. 1 Crore against Customs duty till date. It is submitted by learned counsel for the petitioner that repeated issuance of summons by the DRI, the petitioner apprehends use force and coercive action against him and requested to allow the presence of his counsel during recording his statement under Section 108 of the Customs Act. In support of his argument he has placed reliance of a judgment of the Apex Court decided on 25-4-2012 reported in 2017 (345) E.L.T. 323 (S.C.) wherein the Apex Court has allowed the presence of Advocate of a person whose statement under Section 108 of the Customs Act was to be recorded during interrogation for sitting within a visible distance, but beyond hearing range. He further urged that the petitioner when appears before the authority concerned for recording his statement under Section 108 of the Customs Act he apprehends that after recording the statement of the petitioner he may be arrested by the Customs Authorities hence prior notice may be given to him for his arrest ....
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....uthority may record his statement in accordance with law and in case his arrest is necessitated, he may be given three days prior notice thereafter. With the aforesaid observations, the petition stands disposed of. It is made clear that if the petitioner fails to appear on the date fixed above, the authority concerned will be at liberty to proceed against the petitioner in accordance with law." 7. He has stated that a similar order be passed in the case of the petitioner, hence the petitioner is also entitled a similar order from this Court. 8. Sri Sanjay Kumar Singh, learned counsel appearing on behalf of the DRI respondent Nos. 4 and 5 has vehemently refuted the arguments advanced by learned counsel for the petitioner and has submitted that the prayer made in the present writ petition by the petitioner is wholly misconceived and cannot be granted by this Court in view of the judgment of the Apex Court Poolpandi & Others v. Superintendent, Central Excise & Others reported in 1992 (29) ACC 550 and has drawn the attention of the Court towards para-11 of the said judgment wherein the Apex Court has held that there is no statutory provision about the presence of the coun....
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.... bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police-station has and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898). (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence relating to- (a) prohibited goods; or (b) evasion or attempted evasion of duty exceeding fifty lakh rupees, shall be cognizable. (5) Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognizable. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under Section 135 relating to- (a) evasion or attempted evasion of duty exceeding fifty lakh rupees; or (b) prohibited goods notified under Section 11 which are also notified under sub-clause (C) of Clause (I) of sub-section (1) of Section 135; or (c) import or export of any goods which have not been declared in accordance with provisions of this Act and the market price of which exceeds one cror....
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....he Customs Act. From the perusal of the provisions contained under Section 108 of the Customs Act it is evident that the authorities concerned have power to summon a person for giving evidence and produce the documents and in view of Section 108(3) all persons so summoned shall be bound to attend either in person or by an authorized agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject, respecting which they are examined or make statements and produce such documents and other things as may be required. 12. Moreover Section 108(4) further provides that every such inquiry as aforesaid shall be deemed to be a judicial proceedings within the meaning of Section 193 and Section 228 of the Indian Penal Code (45 of 1860). 13. So far as the power to arrest any person against whom the cognizable offence is made out after recording the statement under Section 108 of the Customs Act then he shall be arrested by the Customs Authorities in view of Section 104(1) of the Act if evasion or attempted evasion of duty exceeding fifty lakh rupees. The said offence is non-bailable offence as is clear from Section 104(6)(d) of Custom....
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....sel for the petitioner with regard to the notice prior to his arrest is concerned that too does not find force in view of the law laid down by the Apex Court in the case of Union of India v. Padam Narain Aggarwal and Others reported in (2008) 13 SCC 305 and the relevant paragraphs in this regard is required to be considered which are quoted herein below :- "No such order could have been passed nor a direction as to prior notice before effecting arrest could have been issued by the High Court. Firstly, the order passed by the High Court was a blanket one and sought to grant protection to the respondents in respect of any non-bailable offence. Neither Section 438 of Cr.P.C. nor any other provision of the Code authorises the grant of blanket anticipatory bail for offences not yet committed or with regard to accusations not so far levelled. Secondly, it illegally obstructed, interfered and curtailed the authority of the Customs Officers from exercising their statutory power of arrest by imposing a condition of giving ten days' prior notice, a condition not warranted by law. There is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that th....