TaxTMI 
TaxTMI 
2020 (6) TMI 460
X X X X Extracts X X X X
X X X X Extracts X X X X
.... A) for an order to cancel or rescind the summons dated 26th March, 2019 issued by the Joint Commissioner AIU NSCBI Airport Kolkata. B) for an order prohibiting the customs authority for initiating enquiry under Section 108 of the Customs Act, 1962 against the petitioners in connection to offence covered under complaint dated 22nd March, 2019 filed by the Assistant Commissioner of Customs, AIU, NSCBI, Airport, Kolkata which was entered into the general Diary and numbered as NSCBI, Airport P.S. GDE No. 800 dated 22nd March, 2019. 2. The facts are substantially undisputed and may be stated as follows: The Assistant Commissioner of Customs, AIU, NSCBI, Airport, Kolkata filed a complaint on 22nd March, 2019 at Airport Police Station and the complaint was entered into a general Diary and numbered as NSCBI, Airport P.S. GDE No. 800 dated 22nd March, 2019. Extract copy of NSCBI, Airport Police Station GD Entry 800 dated 22nd March, 2019 at 23:15 hours is reproduced below: "1. At the marginally noted time one Mr. S. K. Biswas, Assistant Commissioner of Customs, Air Intelligence Unit, NSCBI Airport, Kolkata - 700 052 called at the P.S. and submitted a written inform....
X X X X Extracts X X X X
X X X X Extracts X X X X
....econd bag. One of the ladies told the Customs officers that probably they did not know her identity and power. She then informed about her location to somebody over the phone. 3. After sometime, some Police personnel from NACBI AirportPolice Station under Bidhannagar Police Commissionerate arrived at the International Arrival Hall and informed that one of the lady passengers happened to be wife of M.P. Shri Abhishek Banerjee and made request to release these passengers immediately without any examination of their baggage. But their requests were not adhered to and they were informed that until and unless the examination of the baggages are over by the concerned officer, the passengers would not be released. One lady Police Constable came to the spot and informed the Customs officers that one of the lady passengers was the wife of the nephew of the Chief Minister of West Bengal. During this time, more Police officers came and asked the Customs officers to allow both the ladies to go immediately, without checking their baggage, otherwise they may face problems. However, despite this pressure, the second suspected bag was opened at Counter No. 4 in which two sets of Jewellery....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Counters of Air India and Vistara inside Gate No. 3C at the Departure Area of NACBI, Airport, Kolkata. The following Customs offices attended the meeting, as directed by the Commissioner of Customs (Airport), Kolkata which was communicated through Shri S. K. Biswas, Assistant Commissioner of Customs, in Charge of AIU and Admin: 1. Rajesh Kumar Tiwary, Supdt. of Customs, AIU 2. Akhilesh Kumar, Supdt. of Customs, AIU, 3. Rohit Kumar, Supdt. of Customs, AIU, 4. Gitesh Kumar, Supdt. of Customs, Batch-A (Uninformedofficer) 5. Ranjan Bhattacharyya, Preventive Officer, Customs,Batch-A, (Uniformed officer) 6. Koshalesh Singh, Supdt. of Customs, AIU The following Police Officers were present at the meeting: * Shri Arup Roy Chowdhury (who was in White uniform) * Shri Sudip Dey ( used to do protocol duties at Airport and was in civil dress) * Shri Surajit Dey (ACP, who was in Khaki uniform) 8. Shri Arup Roy Chowdhury, one of the police personnel present in the meeting, informed that they were in receipt of one complaint against Customs Officials, from one lady who had arrived from Thailand in t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e culprits be proceeded in accordance with laws. Kindly register the FIR for the offences mentioned above. We reserve our right to appeal an appropriate Court for taking cognizance of the non-cognizable offences. However, this would not be justification for you not to register the present FIR, while manifestly make out cognizable offence. This is also, without prejudice, of our right to pray for other relief regarding an impartial investigation before an appropriate judicial forum". On 23rd March, 2019, the jurisdictional police authorities made a prayer before the Ld. Additional Chief Judicial Magistrate, Barrackpore, North 24-Parganas for investigating into offences in respect of the complaint dated 22nd March, 2019. The Ld. Magistrate passed an order on 23rd March, 2019 permitting the police authorities to investigate the offence under Section 155 of the Code of Criminal Procedure. But no report in the form of complaint was filed by the police authorities before the learned Magistrate as investigation into the commission of non-cognizable offence could not be completed by the police authorities. 3. After filing complaint before the police, the Joint Commissioner o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....15/1, Strand Road, Kolkata in person, in connection to the offence under Section 133 of the Customs Act, 1962 on your arrival at NSCBI Airport, Kolkata on 15/16.03.2019 by Thai Airway flight No. TG-313. Your presence is required for giving evidence thereto and or produce documents of things (in your possession) related to the said matter. Non-compliance of this summons is an offence under Section 174 & 175 of the Indian Penal Code, 1860. Please note that giving false evidence in these proceeding is an offence punishable under Section 193 of the Indian Penal Code, 1860. Place: Kolkata. Date : 26.03.2019 Joint Commissioner AIU, NSCBI, Airport, Kolkata 4. Mr. Majumdar Ld. Additional Advocate General, appearing for the state narrated the undisputed facts that the Customs lodged a written information to the jurisdictional police station on March 22, 2019. The written information discloses commission of non-cognizable offences under Section 133 of the Customs Act, 1962 read with Section 186 and 503 IPC. The said written information was entered into the General Diary and numbered as NSCBI Airport PS G.D.E No. 800 dated 22/3/2019 (P.33)....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ercise of recording statement of the petitioners, who stands in the character of an accused, would be in vain. Though a Customs Officers is vested with certain powers of police officer, still he is not statutorily empowered to conclude the investigation and file a report in final form u/s. 173(2) of Cr. P.C. The Customs authorities have opted for lodging written information with the police authorities; and in view of the order passed by the Ld. Magistrate, the police authorities are investigating into the offence. The Customs authorities cannot, thereafter, take recourse to Section 137 of the Customs Act, 1962 read with the provisions contained in Chapter XV of the Cr. P.C. The combined operation of Sections 4(2) and Section 26(b) of Code is that the offence complained of should be investigated or inquired into or tried according to the provisions of the Code where the enactment which creates the offence indicates no special procedure. Since the police authorities are vested with the jurisdiction to investigate in view of the order passed by the Ld. Magistrate, the Customs authorities are denuded of their authority to make enquiry in connection with the offence under Section 133 of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f customs had sanctioned filing of the information with the police which was to and would require Magisterial intervention under Section 155(2) of the Cr.P.C. Immediately upon filing the information on 22nd March, 2019, the police authorities have on 23rd March, 2019, acted on the same by filing a GD being GD Entry No. 800 dated 22.03.2019, and have obtained an order of the Magistrate. In this regard nothing more remains to be done by the Customs. The customs, while such police investigation is pending, cannot cause the magistrate to take cognisance of the offence under Section 133 by filing a complaint under Section 200 Cr.P.C. and as scuh the proceeding shall be required to be stayed till such time as the investigation is being conducted by the police. Further, it is not the case of the Customs in the affidavit-inopposition that they comtemplate filing a complaint under Section 200 Cr.P.C. in addition to the report filed before the police. In fact at paragraph 6 of the affidavit in opposition, it is admitted that the investigation against the petitioner and her sister is confined to Section 133 of the Act for deciding on penalty under Section 117 of the Customs Act, 1962. Therfor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion and instead approached the police. According to Mr. Mukherjee, Ld. Senior Counsel, under the Customs Act, the customs cannot impose any penalty for violation of Section 133, as Section 133 of the Customs Act is the only punishable under Chapter XVI of the Act, unlike other offences under Chapter XVI of the Act. The argument regarding Section 117 of the Act has ben added for the first time in the affidavit-in-opposition. Section 117 provides for penalty when no other penalty (fine) is provided for. Section 133 contemplates both imprisonment and a monetary fine. The term "fine", "penalty" and "civil penalty' are all one and the same. "Penalty" means punishment imposed for breach of a law, rule, or contract. Further, and in any event, there cannot be two monetary penalties for same offence. Therefore, Section 133 by itself imposes a penalty for contravention and Section 117 cannot be attracted for contravention of Section 133. Section 117 deals with contravention of any provision or failure to comply with any provision. Section 133 is a penal provision which cannot be contravened. Contravention can only happen when there is a "duty cast" or an "obligation". However, the langua....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erent officers could not be involved in the issuance of the summons, i.e. (i) Manish Chandra (Commissioner of Customs) who has formed an opinion and considers its necessary to summon the petitioner; (ii) Rahul Mahato (Joint Commissioner of Customs) who has issued the summons; and (iii) Additional Commissioner of Customs (Airport & Admin), Customs House before whom the petitioner has been summoned. Even assuming that a senior officer takes up the responsibility to issue such summons he has to perform all acts himself as contemplated under Section 108 and such a senior cannot partly exercise certain aspects of 108 leaving the rest upon other officer. In other words, such summons could have been issued by an officer who was superior in rank to Manish Chandra. Further, Section 108 (4) clearly mandates that proceedings under this Section are judicial in nature and therefore no question arises of issuance of summons being a mere administrative act that need not comply with statute. Issuance of summons is not merely an administrative act and is a quasi-judicial act by itself. Mr. Mukherjee, Ld. Senior Counsel further submits that in order to bolster their case that the Summons is conce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n/complaint and the internal documents of the customs also unequivocally state the same. 7. Mr. Aman Lekhi, Ld. Additional Solicitor General, appearing for the Customs Department submits that the present Writ Petition could not have been filed without responding to the summons and urging the very points raised in the writ petition before the authorities issuing the summons. This is particularly so because no case has been made out to show that the summons dated 26th March, 2019 are non-est in law or wholly without jurisdiction. In any event, a writ of Mandamus and a consequential relief of Certiorari and Prohibition will lie only to enforce an established right and not to establish the right. There being two contested and irreconcilable version of an event (as apparent in the information to the Police given both by the Petitioner and Respondent herein). The very indeterminate nature of the case shows that even for this reason, the proceedings before Hon'ble Court are wholly premature and are quite clearly an attempt to pre-empt the outcome of one case and/or foreclose the other. According to the Ld. Additional Solicitor General, issuance of summons is purely an administrative....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rit of right and before granting the writ, the Courts should see the larger public interest and also give due regard to the consequences which the issue of the writ will result in. Mr. Lekhi further submits that involvement of the Police in the instant case infringes the principle of cooperative federalism and issuing a writ in the facts of this case will not only injure the purpose of governance but entail judicial endorsement of provincial behaviour working at cross purposes with the National Government instead of being complimentary part of a single governmental mechanism which the co-existence of the Customs Act (Central Enactment) and policing (in the realm of State Government) entail. Moreover, law takes no notice of ranks and status and mere proximity with those in position of authority cannot vests privileges unavailable to the ordinary men and women of this country far less being approved by a Judicial order. Reliance has been placed on State (NCT of Delhi) vs. Union of India and Another (2018) 8 SCC 501 @ Pg. 592. The summons were issued in relation to Section 133 of The Customs Act, 1962. The expression should be understood in contradistinction to "into". "In conne....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... look at the information filed by the Customs shows that it reveals offences other than Section 133 of the Customs Act, 1962 and also shows combination of other persons along with the Petitioner in the commission of the offence. It is clearly conspiratorial act which like Sections 186, 503, 419 and 471 of the IPC, 1860 are not offences under Customs Act and therefore cannot be subject matter of proceedings before the Collector of Customs. It is irrational to presume that having itself initiated criminal proceedings (under general law) and correctly referring only the said offences under the general law to investigation by the Police, the Customs Authorities themselves issued the summons to make an inquiry into the very same offences themselves. The summons, obviously being issued "in connection with" would refer to other matters ancillary and incidental to the obstruction and hence relate to matters of penalty and also offence which under the Customs Act may be attracted to the incident. Moreover, a mere reference to Section 133 of the Customs Act, 1962 in the information would not mean that the police would investigate the same due to the reason that an offence under Section 133 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (a) compliance of Section 108 is an administrative act and therefore statute need not be strictly followed; and (b) Section 5(2) of the Customs Act purportedly empowers senior officers to usurp the role of the junior officer. The aforesaid arguments are incorrect and are mere red herrings for the following reasoning: a) Sections 5(2) of the Act has no applicability to the instant case, since it is not the case of the petitioner that a senior officer (for example the Commissioner of customs) could not have issued the summons. It is the petitioner's case that 3 different officers could not be involved in the issuance of the summons, i.e. (i) Manish Chandra (Commissioner of Customs) who has formed an opinion and considers its necessary to summon the petitioner; (ii) Rahul Mahato (Joint Commissioner of Customs) who has issued the summons under dictation/direction; and (iii) Additional Commissioner of Customs (Airport & Admin), Customs House before whom the petitioner has been summoned. b) Even if a senior officer takes up the responsibility to issue such summons, he has to perform all acts himself as contemplated under Section 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing a provision which restricts the liberty of a person under investigation, must be followed in strict compliance and not in a mechanical manner. Further, Section 108 (4) clearly mandates that proceedings under this Section are judicial in nature and therefore no question arises of issuance of summons as an administrative act thereby obviating the need to comply with the strict drill of Section 108. In any case it is as established principle of law that issuance of Summons is a quasi-judicial act by itself and therefore, it would be wholly erroneous to contend that the entire process of summoning is a mere administrative act. It is also an established principle of law that in matters and proceedings that are quasi-judicial in nature, subordinate authority cannot act as per dictation of their superiors, unlike what has been sought to be done illegally in the present case. Mr. Ghosh while arguing his second question submits that customs must "cease and desist" from making any parallel enquiry once they have filed the information/complaint on 22nd March, 2019 and after the police has acted upon the same by taking magisterial approval under section 155(3) code of criminal procedure....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s had already taken steps under Section 133 of the Act. No doubt, the information filed before the Police by the Customs was not a Complaint as understood under Section 200 of the Cr. P. C. However, that per se does not mean, that unless a complaint under Section 200 of the Cr. P. C., Magisterial intervention cannot be sought. In fact for non-cognizable offences Section 155(2) of Cr.P.C. contemplates Magisterial intervention, setting the investigation process into motion. There is no further requirement of a further complaint under Section 200 of the Cr. P. C. To put it differently, by filing an information/complaint with the police, the Customs they have already exercised the option of magisterial intervention, for the following reasons: (a) Section 138 of the Act states that an offence under Section 133 must be adjudicated by the Magistrate. (b) Section 137 of the Act states that no court can take cognizance of an offence under Section 133 of the Act without the previous sanction of either the Principal Commissioner of Customs or Commissioner of Customs. From the conduct of the customs and the documents annexed to their affidavit in opposition it is unequivocall....
X X X X Extracts X X X X
X X X X Extracts X X X X
....perty. Judicial meaning of the two terms i.e. Fine and Penalty are one and the same. In fact, Black's Law Dictionary defines the term (a) "Fine' to be a pecuniary criminal punishment or civil penalty payable to the public treasury and (b) "Penalty' to mean a Punishment imposed on a wrong doer usually in the form of imprisonment or fine. Under such a situation, there can be no question of invoking Section 117 as that is a residuary provision, which applies only where penalty has not been imposed under any other provision of the Customs Act, whereas once Section 133 has been involved, penalty provisions contained therein applies on the petitioner and therefore, Section 117 cannot be applied. In any event Section 117 is not applicable for the following reasons: i. Section 117 deals with contravention of any provision or failure to comply with any provision. Section 133 is a penal provision which cannot be contravened. Contravention can only happen when there is a "duty cast' or an "obligation". However, Section 133 language does not prescribe any such obligation/duty nor can there be any contravention of the provision. It is applicable only where no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rticle 20(3) of the Constitution of India to not give evidence against herself is a prima article of the Constitution of India. This protection is available to the petitioner since a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. A formal accusation, according to the Supreme Court in Balkishan A Devidayal vs. State of Maharashtra reported in (1980) 4 SCC 600 can be made : (a) in an FIR, or (b) a formal Complaint, or (c) any other formal document which ordinarily results in his prosecution in court; or (d) notices served on that person, which ordinarily results in his prosecution in court; In the present case, situation (c) above has been met, in as much as a formal documentation i.e. information has been filed by the Customs with the Police, who by virtue of Section 155(2) of the CRPC has obtained magisterial permission to initiate investigation and on completion of the entire procedure, it may lead to prosecution in court. Further, as held by the Supreme Court, in the case of Superintendent of Police, CBI & Ors. Vs. Tapan Kumar Singh reported in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....igh Courts to mean, "intrinsically related with the main aspect", "ancillary, incidental or has relevance to or link with the object". Therefore, the said phrase cannot be read to mean, conferment of wide power to expand the scope of examination to matters and provisions beyond the main aspect of Section 133 violation. Hence, the argument regarding "in connection with" being of a wide amplitude cannot be sustained to widen the scope of enquiry. It is an established principle of law that error in exercise of jurisdiction is ground enough and by which intervention of the High Court can be sought. Since in the present case it is a submission of the petitioner that the preconditions of Section 108 have not been satisfied, summons has been issued in contravention of the express drill prescribed therein, the very action of the respondent customs is wholly without jurisdiction. The illegal assumption of jurisdiction is also hit large by the fact that parallel investigation which is sought to be initiated contrary to express provision of Section 108 of the Customs Act and also in contravention of Article 20(3) of the Constitution of India. 9. Heard all the parties. Perused of the wri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....161 of Cr. P.C have been recorded and CCTV footage has been obtained from the airport authorities. 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. 13. But the first incidence, where two contested and irreconcilable version of an event that occurred on the night of 15th /16th March, 2019 i.e. two lady passengers, the writ petitioners herein, while passing through the green channel having arrived at NSCBI Airport, Kolkata, refused to show their passports and refused to subject themselves to the procedures as laid down in customs Act inside the "customs airport" has lead to an inquiry by the customs authorities. The customs authorities are free to inquire into the two contested and irreconcilable version of an event as presented before me for any violation of the customs Act by the writ petitioners effecting loss of government revenue that occurred on the night of 15th / 16t....