ANEESH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner, an Inspector of Customs is presently posted in the Customs (Preventive) Department at Kannur. Upon the allegation that while serving as Inspector of Customs at the Thiruvananthapuram International Airport, he facilitated the smuggling of gold by certain persons, Ext.P2 show cause notice was issued to the petitioner under Sec. 124 of the Customs Act, 1962 (hereinafter referred to as 'the Act'), where the petitioner was called upon to show cause as to why;

(2.) While so, the petitioner was issued with a summons under Sec. 108 of the Act (Ext.P9) for providing certain information and for recording the voice sample of the petitioner in connection with the investigation being carried on by the Directorate of Revenue Intelligence. The petitioner submitted Ext.P5 reply essentially taking up a contention that since the show cause notice had already been issued, the petitioner could not be called upon to provide any further evidence or material and therefore it was not proper to issue a summons to him under Sec. 108 of the Act. It was contended that the officer had become functus officio with the issuance of the show cause notice. The petitioner was favoured with Ext.P6 reply informing him that the issuance of the show cause notice did not take away the jurisdiction of the 7th respondent to issue a summons under Sec. 108 of the Act. The petitioner through his counsel replied to Ext.P7 again taking up a contention that the 7th respondent had no jurisdiction to issue summons pending adjudication of the show cause notice issued under Chapter XIV of the Act. In reply to Ext.P7, the petitioner was issued with Ext.P8 reply specifically pointing out that the summons was issued in connection with proceedings contemplated under Chapter XVI of the Act. It was also pointed out that one of the conditions imposed by the District and Sessions Court, Ernakulam while granting bail to the petitioner was that the petitioner shall appear before the investigating officer as and when required by him, till the complaint is filed. The petitioner has therefore approached this court seeking the following reliefs:-

(3.) Sri. Karthik J. Sekhar the learned counsel appearing for the petitioner would submit that though the proceedings under Chapter XIV and Chapter XVI of the Act are distinct and different, the guidelines for launching prosecution in relation to offences punishable under the Customs Act, 1963 as contained in Circular 27/2015-Customs dtd. 23/10/2015 of the Central Board of Excise and Customs (the 2015 Circular) and the circular bearing No.7/2017-Customs dtd. 6/3/2017 (the 2017 Circular) modifying and replacing paragraph 7 of the 2015 circular indicate beyond doubt that in cases such as this, any proceeding for initiation of prosecution can be commenced only after the adjudication is completed. The learned counsel placed considerable reliance on paragraph 7.3 of the guidelines (as replaced by the 2017 Circular) to contend that it is for the adjudicating authority to take a decision as to whether any prosecution should be launched in the matter. It is submitted that since the adjudication is still pending, the 7th respondent could not have issued any summons stating that the summons was issued in connection with proceedings under Chapter XVI of the Act as proceedings under Chapter XVI of the Act could be initiated only after the adjudication is completed. In other words, it is the case of the learned counsel for the petitioner that in cases covered by clause 7.3 of the 2017 circular, the adjudicating authority has to intimate the 7th respondent as to whether the case is one fit for launching prosecution and only thereafter can the 7th respondent assume any jurisdiction to issue summons under Sec. 108 of the Act. The learned counsel also placed reliance on the interim order of a Division Bench of the Rajasthan High Court in Mohit Kirana Store v. C.B.I & C; 2022 (57) G.S.T.L 225 (Raj) in support of the above proposition. The learned counsel also contends on the strength of the judgment of the Supreme Court in Ritesh Sinha v. State of Uttar Pradesh and another; AIR 2019 SC 3592 that the impugned summons has been issued for the purpose of taking the voice sample of the petitioner and the 7th respondent has no jurisdiction to summon the petitioner for taking of a voice sample as the said power is to be conceded only to the Judicial Magistrate.