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2008 DIGILAW 728 (PNJ)

Rajnish Kumar Tuli v. Union Of India

2008-03-19

VINOD K.SHARMA

body2008
Judgment 1. This Criminal Misc. under Section 482 of the Code of Criminal Procedure has been moved for directions to the respondent to record the statement of the petitioner in pursuance of summons dated 6-6-2007 attached as Annexure P. 10 issued by the respondent under Section 108 of the Customs Act, 1962 (for short the Act). 2. The petitioner is required to give evidence in connection with the user of advance licences by M/s. Krishna Trading Company, M/s. Meenu Exim Private Limited, M/s. Nirmal Polyester Private Limited, and M/s. Pradeep Kumar Nirmal Kumar. 3. The petitioner claims that he is a proprietor of Sumit Wool Processors and is engaged in trading of imported/indigenously procuring of yarns and fabrics at Ludhiana. He is carrying on his regular business for such imports of yarn and in the course of said business, vide lawful transactions the petitioner had been either selling the said goods on High Seas or has been getting the same cleared by payment of proper custom duties after producing the Bill of Entry and other requisite documents in the course of his business, the petitioner had imported various kind of textile and sold the same on High Seas to M/s. Krishna Trading Company, M/s. Nirmal Polyester Private Limited, M/s. Meenu Exim Private Limited and M/s. Pradeep Kumar Nirmal Kumar and the deals had been fully and finally completed. 4. The petitioner has received summons under Section 108 of the Act from the Directorate of Revenue Intelligence Zonal Unit, Ahemdabad. However, the petitioner failed to appear before the Directorate of Revenue Intelligence Zonal Unit, Ahemdabad for which criminal proceedings were initiated against him. 5. The petitioner challenged the initiation of said proceedings by filing criminal Misc. Application No. 1038 of 2007 with Special Crl. Application No. 1041 of 2007 before Honble High Court of Gujarat in which he challenged criminal proceedings initiated against to be in violation of Section 202 Cr. P.C. 6. The petitioner challenged Section 108 of the Act to be ultra vires to the Article 14 of the Constitution of India as to the extent that required the person residing far away to attend to a proceeding to give evidence or to produce documents. The plea of the petitioner did not find favour with the Honble High Court of Gujarat and the said petitions were dismissed. 7. The plea of the petitioner did not find favour with the Honble High Court of Gujarat and the said petitions were dismissed. 7. The petitioner has now come to this court with a plea that in pursuance to the powers conferred under Section 108 of the Act, the Custom Authorities can examine the petitioner and he is willing to associate with them. The only request is that his evidence be recorded at Ludhiana as the Custom Authorities have their office at Ludhiana. 8. In support of his plea learned Counsel for the petitioner has placed reliance on the judgment of this course in the case of Tar Balbir Singh vUnion of India and Anr . 1992 (3) RCR (Criminal) 210, wherein this court has been pleased to lay down as under :- 5. Considering the medical certificates attached with the criminal miscellaneous and plea that the petitioner has been suffering from the ailments, mentioned above, as also his treatment by the doctors and that would be difficult for him to undertake a journey to Bombay is accepted. At present, the petitioner is only being summoned to appear before the DRI officers for making a statement with respect to the allegations made by Sukhjit Singh and Rajesh B. Parikh about the involvement of the petitioner. If the respondent-authorities have not been treating the petitioner to be an accused person, they were required to arrange for the travelling expenses of the petitioner and his stay at Bombay or at least they should have given an undertaking to that effect. It is difficult to imagine as to how the petitioner should undertake a long journey to Bombay which is for the convenience of the DRI officers and that too, at his own expenses and also to bear the expenses of his stay at such a costly city, like Bombay. The statement given in the return that the investigating officer is supposed to take the entire record to Chandigarh, can hardly be accepted as a legal ground for the DRI officers to summon the petitioner to Bombay to make a statement. A citizen would only be put to harassment if he is being summoned to far off place, just to meet the whims of the officers of the DRI. A citizen would only be put to harassment if he is being summoned to far off place, just to meet the whims of the officers of the DRI. 8 It is conceded by the learned counsel for the petitioner that DRI does not have any office at Chandigarh, but has its office at Jalandhar. I hereby give a direction that the petitioner shall be examined at Jalandhar on a date to be fixed by the investigating officer, by giving an advance notice of 15 days. The petitioner shall have the right to have the assistance of Advocates presence at the time of recording his statement, who will however, not interfere with the recording thereof. The respondent authorities shall also send the money to defray the travelling expenses of the petitioner to Jalandhar and back. It shall, however, also be open to them to examine him at Chandigarh, if it is to convenient. With these directions, the criminal miscellaneous stands disposed of. 9. Learned Counsel appearing on behalf of the respondent contends that the petitioner is not entitled to the relief claimed as his prayer to challenge the vires of Section 108 of the Act stands negatived by the Honble High Court of Gujarat. The relief sought by the petitioner is, thus, not available to him as under Section 108 of the Act the Customs Authorities have jurisdiction to call any person to give evidence during investigation. 10. Learned Counsel for the respondent also contends that original record is in possession of the Customs Authorities at Ahemdabad and therefore, the effective evidence can only be recorded if the petitioner is called at Ahemdabad. In support of this contention the learned Counsel for the respondent has placed reliance on the judgment of Honble Supreme Court in the case of Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 Supreme Court Cases 52, wherein Honble Supreme Court has been pleased to lay down as under :- 7. It seems rather unusual that when the aggrieved party approached the High Court challenging the order passed by a subordinate court the High Court made the position worse for the aggrieved party. The officials of the Directorate are now injuncted by the Division Bench from arresting the respondent and the time and places for carrying out the interrogations were also fixed by the Division Bench. The officials of the Directorate are now injuncted by the Division Bench from arresting the respondent and the time and places for carrying out the interrogations were also fixed by the Division Bench. Such kind of supervision on the enquiry or investigation under a statute is uncalled for. We have no doubt that such type interference would impede the even course of enquiry or investigation into the serious allegations now pending. For what purpose the Division Bench made such interference with the junctions of the statutory authorities, which they are bound to exercise under law, is not discernible from the order under challenge. It is not the function of the court to monitor investigation processes so long as such investigation does not transgress any provision of law. It must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in such offences. A blanket order fully insulating a person from arrest would make his interrogation a mere ritual, ( vide State rep by the CBI v. Anil Sharma ). 11. The contention of the learned Counsel for the respondent, therefore, is that it is for the Investigating Agency to decide venue, the timings and questions and the manner of putting such questions. 12. There is no force in the contentions raised by the learned Counsel for the respondents. The Honble Supreme Court dealt with the rights of the accused. 13. Admittedly, the petitioner is not an accused in this case but he is only to appear as prosecution witness and not as a defence witness. 14. The case of the petitioner is squarely covered by the judgment of this court in the case of Tar Balbir Singh (supra). 15. The petition, is therefore, allowed. The respondents are directed to examine and record the evidence of the petitioner at their office at Ludhiana. 16. The petitioner shall be bound to appear before the competent officer as nominated by the Investigating Agency at Ludhiana to give evidence on the time, date and place mentioned in the said notice.