VITTALNATHAN Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) EVEN after hearing the learned counsel for the appellants at considerable length we are not satisfied that there is any infirmity in the order of the learned single judge. In his order the learned judge has held that the petitioners are bound to appear in pursuance of the summons under Section 108 of the Customs Act, 1962 (hereinafter referred to as the Act) and that they are not entitled to have the presence of a lawyer at the time when their statement is recorded. As we fully endorse the reasons given and the view taken by the learned Judge while dismissing the writ petitions, we do not think it necessary to deal in extenso with the arguments advanced before us. However, since the matter has been argued at considerable length we might briefly indicate the two contentions and the reasons for rejecting them.

(2.) THE first contention was that a summons under Section 108 of the Act cannot be issued unless an enquiry as contemplated by Section 124 of the Act is commenced by a notice to show cause as to why either the goods should not be confiscated or that penalty should not be imposed on the persons concerned. Reliance has been placed for this view on the decision of the Gujarat High Court in Union of Indiav. Abdul Kadar Abdulgani (1985 Crl. LJ 324) Central Government rep. by theDirector, Enforcement Directorate, New Delhiv.Alfred James Femandez 1987 (31) ELT 902, 1987 AIR(Ker) 179 ) andPukhrajv. K.K. Ganguty (AIR, 1968 Bombay 433). In the decision of the Gujarat High Court that Court had held that the stage of recording of statements under Section 108 arises only when an inquiry is started either for confiscation of the goods or for imposing penalty and this is very clear from the wordings of Section 108. That Court also held that so far as Section 107 is concerned it takes care of investigatory emergencies. Reliance for this view has been placed on the decision of the Supreme Court inBalkrishna Chhaganlal Soniv. State of West Bengal 1974 CAR 44, 1974 (80) CrLJ 280, 1973 CrLR(SC) 771, 1983 (13) ELT 1527, 1974 (3) SCC 567, 1974 SCC(Cr) 45, 1974 (2) SCR 107, 1974 SCC(Cri) 45, 1974 ACJ 13, 1974 AIR(SC) 120). THE Kerala decision was a decision which dealt with Section 40 of the Foreign Exchange Regulation Act, 1973

(3.) THE power under Section 108 of the Act like the one under Section 171-A of the Sea Customs Act would be exercised for the purpose of obtaining any information with regard to the alleged smuggling. Section 108 itself contemplates an enquiry as will be clear from the decision inP. Rustomjiv. State of Maharashtra 1971 CAR 305, 1971 (1) SCC 847, 1971 SCC(Cr) 345, 1971 (S) SCR 35, 1971 (77) CRLJ 933, 1983 (13) ELT 1443, 1971 SCC(Cri) 345, 1983 E(LT) 1590, 1971 AIR(SC) 1087), in which it was pointed out that a Customs Officer making an enquiry under Section 107 or 108 of the Customs Act is not a police officer and the person against whom enquiry is made is not an accused person. Thus the enquiry made under Section 108 is an enquiry in connection with the smuggling of any goods and in any such enquiry a Customs Officer of gazetted rank has been given the power to summon any person to give evidence. THE object of such an enquiry is to ascertain facts with regard to smuggling of goods. A person who is summoned under Section 108 may have nothing to do with the actual smuggling of goods although he may know other relevant facts regarding such goods. That is why even a person who has nothing to do with actual smuggling of goods can also be summoned in an enquiry under Section 108.