Analysis of Summons under Section 108 of the Customs Act, 1962

An Exposition of Section 108 of the Customs Act, 1962: Powers, Procedures, and Evidentiary Significance of Summons

Introduction

Section 108 of the Customs Act, 1962 (hereinafter "the Act"), stands as a cornerstone in the investigative and enforcement mechanism available to Customs authorities in India. It confers significant powers upon Gazetted Officers of Customs to summon individuals for giving evidence and producing documents in connection with inquiries into smuggling. The efficacy of customs administration in preventing revenue leakage and combating illicit trade hinges considerably on the robust application of this provision. This article undertakes a comprehensive analysis of Section 108, delving into its statutory contours, the nature and scope of the powers it grants, the obligations imposed upon summoned persons, the evidentiary value of statements recorded thereunder, the rights available to individuals during such proceedings, and the stance of the judiciary on these matters. The analysis draws heavily upon the legislative text, established judicial precedents, and relevant legal principles under Indian law.

Statutory Framework: Section 108 of the Customs Act, 1962

Section 108 of the Customs Act, 1962, titled "Power to summon persons to give evidence and produce documents," lays down the foundational powers of Customs officers in conducting inquiries. The provision, as articulated in various judicial pronouncements and statutory texts, reads substantially as follows:

"(1) Any gazetted officer of Customs duly empowered by the Central Government in this behalf, 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 under this Act.[8][10]
(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.[8]
(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 statements 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.[8][12]
(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code.[9][12]"

This provision evolved from Section 171A of the erstwhile Sea Customs Act, 1878, which was introduced by the Sea Customs (Amendment) Act, 1955, and contained similar powers.[11][12] The core objective, as highlighted by the Orissa High Court in The Tata Iron & Steel Company Limited And Others v. Union Of India And Others, is to empower Customs authorities to compel persons with relevant information to disclose it, thereby preventing or checking evasion of customs laws.[14]

Nature and Scope of Power to Summon

Purpose of Inquiry

The power to summon under Section 108 is exercisable in "any inquiry which such officer is making in connection with the smuggling of any goods."[8] The term "inquiry" in this context is broad and encompasses the process of ascertaining facts related to smuggling.[17] The Madras High Court in Vittalnathan v. Collector Of Customs clarified that the object of such an inquiry is to ascertain facts with regard to smuggling, and even a person who may have nothing to do with the actual smuggling but possesses relevant information can be summoned.[17] This power is crucial for Customs officers to effectively discharge their duties of checking evasion, discovering illegal imports, and gathering evidence for adjudication proceedings.[14]

Persons Who Can Be Summoned

Section 108(1) empowers a Gazetted Officer of Customs to summon "any person whose attendance he considers necessary." This wide ambit allows officers to summon individuals who are suspected to be involved in smuggling, as well as those who might possess information or documents pertinent to the inquiry. The necessity of attendance is determined by the officer conducting the inquiry.[8][17]

Obligations of the Summoned Person

Upon being summoned, an individual incurs specific legal obligations. As per Section 108(3), all persons so summoned are:

  • Bound to attend, either in person or by an authorized agent, as directed by the officer.[8]
  • Bound to state the truth upon any subject respecting which they are examined or make statements.[8][11]
  • Bound to produce such documents and other things as may be required.[8]
Non-compliance with a summons under Section 108 can attract penal consequences under Sections 174 (non-attendance in obedience to an order from public servant) and 175 (omission to produce document to public servant by person legally bound to produce it) of the Indian Penal Code, 1860 (IPC).[13] Furthermore, since an inquiry under Section 108 is deemed a "judicial proceeding" within the meaning of Sections 193 and 228 of the IPC,[9][12] giving false evidence during such an inquiry is punishable under Section 193, IPC.[13] The summons itself often carries a warning to this effect.[13]

Evidentiary Value of Statements Recorded under Section 108

Admissibility in Evidence

A significant body of case law has established that statements recorded by Customs officers under Section 108 of the Act are admissible in evidence. The Supreme Court in Tofan Singh v. State Of Tamil Nadu, while dealing with the NDPS Act, reiterated the settled position for the Customs Act, stating, "It is well settled that statements recorded under Section 108 are admissible in evidence."[9] This was affirmed by citing earlier decisions like K.I. Pavunny v. Assistant Collector (H.Q.) Central Excise Collectorate, Cochin[2][9] and Naresh J. Sukhawani v. Union Of India, where the Court held that a statement made under Section 108 is a material piece of evidence.[5][9]

Distinction from Statements to Police Officers

The admissibility of statements under Section 108 hinges critically on the distinction between Customs officers and police officers. Section 25 of the Indian Evidence Act, 1872, renders inadmissible a confession made to a police officer. However, the Supreme Court has consistently held that Customs officers, when conducting inquiries under the Customs Act (including under Section 108), are not "police officers" within the meaning of Section 25 of the Evidence Act. Landmark cases such as Ramesh Chandra Mehta v. State Of West Bengal,[6][22] Illias v. Collector Of Customs, Madras,[4] and Percy Rustomji Basta v. State Of Maharashtra[1] have firmly established this principle. The reasoning is that Customs officers are primarily revenue officers concerned with preventing smuggling and enforcing customs regulations, not investigating criminal offenses in the manner of police officers who have the power to file charge-sheets under Section 173 of the Code of Criminal Procedure (CrPC).[1][4][6][7] Consequently, statements made to them are not barred by Section 25 of the Evidence Act. The Supreme Court in Tofan Singh also noted that statements recorded under Section 108 are "distinct and different from statements recorded by the police officer during the course of investigation under the Code of Criminal Procedure."[9] (citing Union of India v. Padam Narain Aggarwal[10]).

Applicability of Section 24, Indian Evidence Act

Section 24 of the Indian Evidence Act, 1872, renders a confession irrelevant if it appears to have been caused by any inducement, threat, or promise having reference to the charge against the accused person, proceeding from a person in authority. In Percy Rustomji Basta v. State Of Maharashtra, the Supreme Court held that a statement made to a Customs officer under Section 108 would not be barred by Section 24 merely because the person was informed of their obligation to speak the truth under threat of prosecution for giving false evidence (Section 193 IPC), as this is a statutory requirement, not a personal threat from the officer.[1] The Court emphasized that at the stage of inquiry under Section 108, the person is not an "accused" in a criminal proceeding.[1] However, the general principles of voluntariness under Section 24 still apply; if a statement is proven to be obtained through coercion, threat, or impermissible inducement beyond the statutory framework, its admissibility can be challenged.[2] In K.I Pavunny, the Court affirmed that Customs Officers are "persons in authority" under Section 24, but found the confession in that case to be voluntary.[2]

Use Against Co-Accused

Statements recorded under Section 108 can also be used against co-accused persons. The Supreme Court in Naresh J. Sukhawani v. Union Of India held that a statement made under Section 108 of the Customs Act is a material piece of evidence, and a statement made by a co-accused can be used against others.[5][9]

Retracted Confessions

The issue of retracted confessional statements made under Section 108 was extensively dealt with in K.I Pavunny v. Assistant Collector. The Supreme Court held that a retracted confession, if found to be voluntary and true, can form the basis of a conviction.[2] While corroboration from independent evidence is not a strict legal requirement for relying on a retracted confession, it is a rule of prudence that courts generally seek such corroboration.[2]

Rights of Persons Summoned under Section 108

Protection Against Self-Incrimination (Article 20(3) of the Constitution)

Article 20(3) of the Constitution of India states that "No person accused of any offence shall be compelled to be a witness against himself." The applicability of this protection to persons summoned under Section 108 has been a subject of judicial interpretation. The consistent view of the Supreme Court, as laid down in cases like Ramesh Chandra Mehta v. State Of West Bengal,[6][22] Percy Rustomji Basta v. State Of Maharashtra,[1] and Poolpandi And Others v. Superintendent, Central Excise And Others,[3] is that a person summoned under Section 108 is not an "accused of any offence" at the stage of the inquiry. The character of an accused is acquired only when a formal complaint is filed or a First Information Report (FIR) is lodged. Therefore, the protection under Article 20(3) is generally not available during the inquiry stage under Section 108.[3][6][16] The Telangana High Court in Pushpalata Bai and 4 Others v. Directorate of Revenue Intelligence, citing Veera Ibrahim v. The State of Maharashtra, reiterated this position.[16]

Right to Legal Counsel

The question of whether a person summoned under Section 108 has a right to the presence of legal counsel during interrogation was decisively answered by the Supreme Court in Poolpandi And Others v. Superintendent, Central Excise And Others.[3] The Court held that there is no constitutional or statutory right for an individual to have their lawyer present during interrogation by Customs officers under Section 108 (or similar provisions in FERA).[3] The reasoning was again tied to the fact that the person is not an "accused" at this stage, and thus the rights available to an accused during police interrogation (e.g., under Article 22(1) or as interpreted in CrPC) do not automatically extend to such inquiries. The Court also considered practical aspects of investigation into economic offenses.[3][16]

Judicial Scrutiny of Summons and Proceedings

Limited Scope for Interference by High Courts

High Courts, in exercise of their writ jurisdiction under Article 226 of the Constitution, are generally reluctant to interfere with summons issued under Section 108 or to stall ongoing investigations, particularly at a nascent stage. In Bheena Pharma Japadar v. Union Of India, the Madras High Court expressed the view that it should not exercise its discretionary jurisdiction to interdict investigations in such matters, terming the challenge to the summons as premature.[15][23] This approach has been echoed in more recent decisions, such as Commissioner of Customs Calcutta Vs. M.M. Exports (cited in M/S TRINITY REINSURANCE BROKERS LIMITED AND ORS. v. ENFORCEMENT DIRECTORATE AND ANR. (FINANCE)[24] and Saurabh Mukund v. Directorate Of Enforcement Thru. Its Joint Director Lko.[25]), where the Supreme Court opined that except in exceptional cases, High Courts should not interfere at the stage of issuance of summons.

However, this does not mean that the power to summon is entirely immune from judicial review. If a summons is issued with mala fide intent, without jurisdiction, or in gross abuse of power, judicial intervention may be warranted, although the threshold for such intervention is high. Issues like non-supply of copies of summons or statements recorded under Section 108 have also been raised in the context of detention matters, impacting the detenu's right to make an effective representation.[21]

The Enduring Distinction Post-Tofan Singh v. State of Tamil Nadu

The Supreme Court's decision in Tofan Singh v. State Of Tamil Nadu[9] held that officers of the Central Departments (like NCB, DRI) invested with powers of an "officer in charge of a police station" under Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) are "police officers" within the meaning of Section 25 of the Evidence Act. Consequently, confessional statements recorded by them under Section 67 of the NDPS Act are inadmissible. However, the Court in Tofan Singh itself, when referencing the Customs Act, explicitly noted the established position: "It is well settled that statements recorded under Section 108 [of the Customs Act] are admissible in evidence."[9] The judgment drew a distinction based on the specific provisions and powers under the NDPS Act (particularly Section 53, which has no direct equivalent in the Customs Act conferring all powers of an officer in charge of a police station upon Customs officers for all purposes). Thus, the long-standing judicial view that Customs officers acting under Section 108 are not police officers for the purpose of Section 25 of the Evidence Act remains undisturbed by the Tofan Singh ruling, and statements recorded under Section 108 of the Customs Act continue to be admissible, subject to other rules of evidence.

Conclusion

Section 108 of the Customs Act, 1962, is a vital tool for Customs authorities in India, enabling them to conduct effective inquiries into smuggling activities by summoning individuals to provide evidence and produce documents. The judiciary has consistently upheld the powers under this section, emphasizing the obligations of summoned persons to attend and speak the truth. A crucial aspect of the jurisprudence surrounding Section 108 is the clear distinction drawn between Customs officers and police officers, which underpins the admissibility of statements recorded under this provision, rendering them unaffected by the bar under Section 25 of the Indian Evidence Act. While individuals summoned do not possess the full panoply of rights available to an "accused" (such as the right to silence under Article 20(3) at that stage, or an absolute right to counsel during interrogation), the statements must still be voluntary to be admissible under Section 24 of the Evidence Act. The courts have shown restraint in interfering with these proceedings, allowing investigations to proceed, while implicitly retaining the power to intervene in exceptional cases of manifest illegality or abuse of power. The framework of Section 108, as interpreted and applied, thus seeks to strike a balance between the imperative of effective customs enforcement and the protection of individual rights within the Indian legal system.

References