Santosh Kumar Jha v. Union Of India And Others

S.S Kulshrestha and J.M Paliwal, JJ.:— Heard the learned Counsel for the parties and also perused the materials on record.

2. This petition has been brought for issuing appropriate direction to the respondents for not effecting the arrest of the petitioner in connection with an enquiry conducted by respondent No. 3 in the case of Paramount Tradelinks Private Limited, Varanasi (The company) an 100% Export Oriented Unit (EOU) under the provisions of Customs Act, 1962 for the alleged evasion of custom duties by the company. It is said that the petitioner is an employee of the company incorporated under the Companies Act situated at Semara, Ramnagar Road, P.O Katesar, Varanasi. Allegations are that the company has made evasion of custom duties by misusing the privileges granted to it under the scheme of “100% Export Oriented Unit” by the Central Government under its “Exim Policy”. The petitioner being the custodian of some of the records has been summoned by the respondent No. 3 for producing those documents but is afraid that he may be arrested as was done in the matter of other employees who were summoned in an enquiry. In that regard instance of Mr. Dinesh Kumar Agrawal an employee of the company has been given who was also summoned but after recording his statement was taken into custody by the respondents. Suffice is to mention that powers of arrest under section 104 of Customs Act, have well been discussed in the case of K.I Pavunny v. Assistant Collector (Hq), Central Excise Collectorate, Cochin. . 1977 SCC Crl. 444., which may relevant to the extent may be extracted hereunder:—

“In Ratnesh Chandra Mehta v. State of West Bengal, a Constitution Bench of this Court held at p. 466 that the Customs Officers are entrusted with the powers specifically relating to the collection of customs duties and prevention of smuggling and for that purpose they are invested with the power to search any person on reasonable suspicion, to summon. X-ray the body of the person for detecting secreted goods, to arrest a person against whom a reasonable suspicion exists that he has been guilty of an offence under the Act, to obtain a search warrant from a Magistrate, to search any place within the local limits of the jurisdiction of such Magistrate, to collect information by summoning persons to give evidence and produce documents and to adjudge confiscation. He may exercise these powers for preventing smuggling of goods dutiable or prohibited and for adjudging confiscation of those goods. For collecting evidence the Customs Officer is entitled to serve summons to produce a document or other thing or to give evidence and the person so summoned is bound to attend either in person or by an authorized agent, as such officer by direct, is bound to state the truth upon any subject respecting which he is examined as a statement and to produce such documents and other things as may be required. The power to arrest, the power to detain, the power to search or obtain a search, warrant and the power to collect evidence are vested in the Customs Officer for enforcing compliance with the provisions of the Sea Customs Act. He is empowered to investigate into the infringement of the provisions of the Act primarily for the purpose of adjudicating forfeiture and penalty.”

3. Further, in view of the provisions of section 104 of the Customs Act the Officer of the Custom Department has also the power to arrest such person against whom the evidence is appearing having belief that he is guilty of the offences punishable under section 135 of the Customs Act. At this stage it cannot be anticipated that when the petitioner is being summoned as a witness his arrest will be required or not. Mere apprehension at this stage or that he would be appearing as a witness would not be a justified ground to interfere. A person against whom an enquiry is made by the Custom Officer is undoubtedly not a person accused of an offence. But such person is not protected by Article 20(3) of the Constitution and the law that he cannot be compelled to be a witness against himself is not applicable to such person. Reliance may be placed in the case of Ramesh Chandra Mehta v. State of West Bengal . AIR 1970 SC 940.. So far as the principle of law down in the case of Balkrishna Chhaganlal Soni v. State Of West Bengal . 1974 SCC Cri 45., is concerned in particular para 11 which has been referred would not be of any help to the petitioner. At this stage the petitioner has been summoned as a witness. We do not find any justified and justifiable ground to give any direction in the matter.

4. In the result, the writ petition has no force and it is dismissed.

Petition Dismissed.