Customs Act, 1962 - Section 108 (3) - Statutory right to appear before the officer through an authorised agent - Petitioner is a woman who Summoned as a witness - Act only confers discretion on the officer concerned to decide as to whether or not the witness concerned is to be present in person or through authorised agent - Personal presence of the petitioner as a witness is highly imperative and necessary and therefore the petitioner is liable to appear in person and not through an authorised agent - It is ordered that a woman customs officer shall be personally present throughout the questioning process.
The law on the point is very clear and sub-Section 3 of Section 108 of the Customs Act clearly stipulates that all persons who summoned shall be bound to appear either in person or by an authorised agent as such officer may direct and that in the facts of the case, the officer concerned is fully satisfied that the personal presence of the petitioner as a witness is required and that therefore, Section 108(3) of the Customs Act only confers discretion on the officer concerned to decide as to whether or not the witness concerned is to be present in person or through authorised agent and that in the facts of the case, the personal presence of the petitioner as a witness is highly imperative. In that regard, the Central Government Counsel appearing for respondents 2 to 4 would point out that it is only based on the said statutory discretion that the 4th respondent officer has issued Ext.P2 summons whereby he has taken a considered decision that personal presence of the petitioner as a witness is highly imperative and necessary and therefore the petitioner is liable to appear in person and not through an authorised agent. After hearing both sides, we are inclined to accept the abovesaid contention of the respondents that the personal appearance of the petitioner is necessary.
IN THE HIGH COURT OF KERALA AT
ERNAKULAM
ALEXANDER THOMAS & N. NAGARESH, JJ.
W.P.(C) No.13249 of 2019
Dated this the 7th
day of May, 2019
PETITIONER:
RISHANA
NIZAR
BY
ADV. SRI.R.KISHORE (KALLUMTHAZHAM)
RESPONDENTS:
1
UNION OF INDIA TO BE REPRESENTED BY UNDER SECRETARY, MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE, ROOM NO.46,NORTH BLOCK, NEW DELHI-110 001
2
ADDITIONAL DIRECTOR (DRI) COCHIN ZONAL UNIT, COCHIN ZONAL UNIT, VILAKUNNEL
HOUSE, DOOR NO.40/552, KAITHOTH ROAD, PALARIVATTOM, COCHIN-682 025
3
JOINT COMMISSIONER (DRI), COCHIN ZONAL UNIT, COCHIN ZONAL UNIT, VILAKUNNEL
HOUSE, DOOR NO.40/552, KAITHOTH ROAD, PALARIVATTOM, COHIN-682 025
4
SENIOR INTELLIGENCE OFFICER, DEPARTMENT OF REVENUE INTELLIGENCE TRIVANDRUM
REGIONAL OFFICE, RASHMI BUILDING T.C.27/1895, (CRA-16) CONVENT ROAD, VANCHIYOOR,
TRIVADRUM-695 035
BY
ADVS. SRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE KERALA REGIONAL UNIT
SRI.P VIJAYAKUMAR, ASGI FOR R1
J U D G M E N T
Alexander
Thomas, J.
The
prayers in the writ petition are as follows:-
“(i)
Issue a writ of Mandamus or order or direction to the 4th respondent
not to harass the petitioner while recording her statement under Section 108 of
the Customs Act.
(ii)
Issue a writ of Mandamus or order or direction to the 4th respondent
to take the statement of the petitioner in the presence of a lady officer.
(iii)
Issue a writ of Mandamus or order or direction to the 4th respondent
to record the statement by giving the questions in writing and a copy of the
statement so recorded shall be handed over to the petitioner.
(iv)
Issue a writ of Mandamus or order or direction to the 4th respondent
to record the statement in the presence of her counsel or her parents.
(v)
Issue a writ of Mandamus or order or direction to the 4th respondent
to appear before the 4th respondent through an authorised agent.”
2.
Heard Sri.R.Kishore, learned counsel for the petitioner, Sri.P.Vijayakumar,
learned ASGI for the 1st respondent (Union of India) and Sri.S.Manu,
learned Central Government Counsel appearing for respondents 2 to 4.
3. It
is averred by the petitioner in the writ petition that she is a BDS student and
is now doing her House Surgency in the Government Medical College, Pariyaram,
Kannur District and that she has married one Faisal in August, 2016 as per
Muslim Customary rites and that her husband has been working in a contracting
company associated with the Trivandrum Domestic Airport. On 13.04.2019, the
husband of the petitioner was arrested by the 4th
respondent alleging that the petitioner's husband
is involved in a crime which has been registered as OR No.DRI/CoZU/TVM/05/2019
of the Directorate of Revenue Intelligence, Trivandrum and has been arrayed as
accused No.4 therein. It is stated that the petitioner's husband has been
arrested based on statement of another accused recorded under Section 108 of
the Customs Act.
4. The
petitioner, who is now doing her House Surgency at the Government Medical
College, Pariyaram as part of her BDS course, has now been summoned by the 4th respondent
as per Ext.P2 summons. According to the petitioner aged 23 years, she is the mother
of a child aged 1½ years and that she apprehends serious harassment and threat
from respondents 3 and 4 and it is in the light of these averments that the
petitioner has filed this writ petition with the aforesaid prayers.
5. Sri.S.Manu,
learned Central Government Counsel appearing for respondents 2 to 4, on
instructions, would submit that it has been now well settled by a series of
Rulings of the Apex Court that a person, who has been summoned as a witness in
a crime registered under the Customs Act, has no right in law to demand that
the questioning of the witness is to be done in the presence of a lawyer.
Further, Sri.R.Kishore, learned counsel for the petitioner, would submit that
as per the provisions of Section 108(3) of the Customs Act, all persons so
summoned shall be bound to attend either in person or by an authorised agent,
as such officer may direct and therefore, the statutory provisions contained in
the Customs Act confer a right on a person summoned only as a witness to appear
before the officer concerned either in person or through the authorised agent.
6. Per
contra, Sri.S.Manu, learned Central
Government Counsel appearing for respondents 2 to 4, would submit that the law on
the point is very clear and sub-Section 3 of Section 108 of the Customs Act
clearly stipulates that all persons who summoned shall be bound to appear
either in person or by an authorised agent as such officer may direct and that
in the facts of the case, the officer concerned is fully satisfied that the
personal presence of the petitioner as a witness is required and that
therefore, Section 108(3) of the Customs Act only confers discretion on the
officer concerned to decide as to whether or not the witness concerned is to be
present in person or through authorised agent and that in the facts of the case,
the personal presence of the petitioner as a witness is highly imperative. In
that regard, the Central Government Counsel appearing for respondents 2 to 4
would point out that it is only based on the said statutory discretion that the
4th respondent
officer has issued Ext.P2 summons whereby he has taken a considered decision
that personal presence of the petitioner as a witness is highly imperative and
necessary and therefore the petitioner is liable to appear in person and not
through an authorised agent. After hearing both sides, we are inclined to
accept the abovesaid contention of the respondents that the personal appearance
of the petitioner is necessary.
7. In
the light of these aspects, this Court is not inclined to accede to the plea of
the petitioner that she has a statutory right to appear before the officer
concerned as a witness through an authorised agent, in the facts of this case.
However, Sri.S.Manu, the learned Central Government Counsel appearing for
respondents 2 to 4, on instructions, would submit that since the petitioner is
a woman, it shall be ensured that a woman customs officer will be personally
present throughout the questioning process of the petitioner by the officer
concerned in pursuance of Ext.P2 summons. The said undertaking of the
respondents made through the Central Government Counsel appearing for
respondents 2 to 4 is recorded and it is ordered that respondents 2 to 4 shall
ensure that a woman customs officer shall be personally present throughout the questioning
process of the petitioner as a witness pursuant to Ext.P2 summons.
With
the above directions, this original petition is disposed of.
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