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2010 DIGILAW 86 (KAR)

C. Prasad v. Superintendent of Customs, HPU

2010-01-20

A.S.PACHHAPURE

body2010
ORDER A.S. Pachhapure, J.— The petition is filed apprehending arrest for the offence punishable under Section 135 of the Customs Act, 1962 [hereinafter referred to as "the Act" for short]. 2. The facts relevant for the purpose of this petition are as under: The petitioners are the Directors of M/s. Live Ads [India] Private Limited, a Company governed by the provisions of the Indian Companies Act, 1956. It does business in export of industrial salt from ICD white field. Its products are classified as chlorides, chloride oxides and product export by the Company is potassium chloride. In April 2009, the respondent drew sample of industrial salt sought to be exported and sent them for testing to geological and metallurgical laboratories and as per the reports it is stated that the product is naturally occurring in inorganic chemical compound and 2 samples identified as potassium chloride of technical grade. In May 2009, the Joint Commissioner had directed to draw samples again and they were sent for test to the Central Revenue Laboratories, Chennai. The petitioners are not aware of the results. They state that the potassium chloride is classified under the heading 3104.20 and is restricted under export policy issued by DGFT. According to them, the contention of the respondent is erroneous and that the export was allowed after taking a bank guaranty of 20% of the value and the bank guarantee was executed on 14-7-2009. It is at this stage that the respondent issued summons under Section 108 of the Act calling upon the 1st petitioner to hear in person on 12-8-2009 to give statement. The petitioners state that they complied with the summons and that the respondent is summoning them again and again for further statement. It is in these circumstances that the petitioners are apprehending arrest under Section 104 of the Act. The respondent has the authority to arrest. 3. The petitioners claim that the respondent has no reason to summon the petitioners and to make an enquiry for the offence under Section 135 of the Act as the samples were drawn in the month of April 2009 and the test report dated 13-4-2009 received by the respondent does not reveal any defect in the export material and that the summoning of the petitioners is an abuse of the process of law. 4. 4. They state that they are ready to co-operate with the respondent whenever they are summoned and are ready and willing to abide by any conditions that may be imposed for release on bail. They further submit that they are respectable citizens and are permanent residents of Bangalore and that they will not run away from the jurisdiction. On these grounds they have sought for grant of anticipatory bail. 5. The learned Central Government Standing Counsel has opposed the petition and submits that the goods covered under consignment are misdeclare for the purpose of exporting the same without obtaining a license from the Central Government and that the export of potassium chloride falling in Chapter sub-heading 3104.20 of customs has restricted by Notification No. 30/2003, dated 28-1-2004 issued by the Directorate General of Foreign Trade from the primary investigation carried out by the respondent. He also state that though the summons were issued on 26-10-2009,4-1-2009,16-11-2009 and 20-11-2009, the petitioners have not appeared before the authorities and are not co-operating in providing information for concluding the investigation. He also submits that RSK Krishnaraja Pura, Bangalore, in his report dated 7-9-2009 has reported that all the 5 samples are muriate of potash, which is fertilizer and not an industrial salt and the petitioners have deliberately misdeclared muriate of potash as industrial salt and fraudulently exporting the fertilizers out of India without necessary license. On these grounds, he has sought for dismissal of the petition. 6. I have heard the learned Counsel for the petitioners and also the learned Central Government Standing Counsel. 7. The point that arises for my consideration is; Whether the petitioner is entitled to the anticipatory bail sought for? 8. It is the contention of the learned Counsel for the petitioners that they have apprehension of arrest under Section 135 of the Act and summons were issued by the Customs Authority under Section 108 of the Act. So also they state that they have not committed any unlawful act and that they are innocent parsons and apprehending arrest in respect of non-boilable offence. They also rely upon the decision of the Apex Court reported in Union of India (UOI) Vs. Padam Narain Aggarwal etc., AIR 2009 SC 254 . 9. So also they state that they have not committed any unlawful act and that they are innocent parsons and apprehending arrest in respect of non-boilable offence. They also rely upon the decision of the Apex Court reported in Union of India (UOI) Vs. Padam Narain Aggarwal etc., AIR 2009 SC 254 . 9. Per contra, the learned Central Government Standing Counsel submits that the said decision is not applicable to the facts on hand as there was blanket order of anticipatory bail nullifying the provisions of Section 104 of the Act. Further more, he submits that the authorities concerned will have to record the statement of the petitioners and thereafter take a decision in the matter and that there is no reasonable apprehension of arrest for the offence under Section 135 of the Act as the enquiry is not complete. On these grounds, he has sought for dismissal of the petition. 10. Now as could be seen from the provisions of Section 108 of the Act reads thus; Power to summon persons to give evidence and produce documents: (1) Any Gazetted Officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised 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 statement and produce such documents and other things as may be required: Provided that the exemption under Section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code, 1860. 11. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code, 1860. 11. So, now the petitioners have been issued summons under the above said provision and it is for the Gazetted Officer to record the statements of the petitioners and the proceedings before the Gazetted officer are deemed to be a judicial proceeding within the meaning of Sections 193 and Section 228 of the Indian Penal Code. The officer has also authority to require production of order permitting clearance of the goods imported by the land, the seizure of goods, documents and things and also the confiscation under Chapter 14 of the above said Act. 12. The petitioners are apprehending arrest for the offence under Section 135 of the Act for evasion of duty or prohibition. Now as could be seen from the allegations made in the petition, the petitioners state that there are no reasons for the Officer to summon them as they have not committed any offence punishable under Section 135 of the Act and the sample which was taken in the month of April 2009 does not reveal any adulteration and when the petitioners are definite of having not committed any offence, the Officer has issued the summons under Section 108 of the Act for recording their statement. The facts alleged in the petition are not sufficient to apprehend the possibility of arrest of the petitioners as the respondent after recording the statement has to take a decision to know as to whether there is any material against the petitioners for the offence alleged. So, the mere fact that the statement of the petitioner is to be recorded itself is not a ground to cause any apprehension in the mind of the petitioners to arrest them for the offence punishable under Section 135 of the Act. 13. So far as the decision referred to above is concerned, the Apex Court has taken into consideration the powers of the authority to arrest under Section 104 of the Act and the High Court had come to the conclusion that the petitioners in the said case have no grounds to apprehend arrest by the authorities. Anyhow, the Court ultimately passed an order not to arrest the petitioners without notice of 10 days. Anyhow, the Court ultimately passed an order not to arrest the petitioners without notice of 10 days. So, taking into consideration the blanket order passed by the High Court, the Apex Court quashed the said Order, but so far as the remaining portion of the Order holding that there are no reasonable grounds to apprehend the arrest for the offence, the Apex Court has not interfered. The principle laid-down does not apply to the facts on hand in view of the facts and circumstances that it is only a summons which was issued by the respondent for recording the statement of the 1st petitioner and that itself is not sufficient to hold reasonable apprehension of arrest. 14. Furthermore, it is revealed from the material placed on record that the summons were issued to the petitioners on 26-10-2009 and on other 3 more occasions and since then the petitioners have not put their attendance for recording their statement. I am of the opinion that in the absence of reasonable apprehension of arrest, an anticipatory bail cannot be granted. Hence, 1 answer the point in negative and proceed to pass the following: ORDER 15. The petition is dismissed.