The Telangana High Court, while partly allowing a writ petition, has held that the Customs Act provide its own mechanism to deal with the offences and therefore, the provisions of the Criminal Procedure Code, is not applicable to such offences.
Based on intelligence that SKELLP was mis-declaring the export goods and was clandestinely diverting the gold generated out of such mis-declaration into local market, the officers of Directorate of Revenue Intelligence (DRI), Hyderabad Zonal Unit, started investigation and seized 10 kgs., of foreign marked gold bars i.e. 10 gold bars of 1 kg. each, with defaced serial numbers under panchanama dated 03.05.2019. Subsequently, the petitioners received a summons under section 108 of the Customs Act. Against the summons, the petitioners approached the High Court alleging the summons as illegal and contrary to the provisions of the Cr.P.C., and to direct the respondents to record the statement of the petitioners through video conferencing.
Rejecting the plea of the petitioners, Justice G. Radha Rani observed that “Whenever a statute creates a new offence and also sets up a machinery for dealing with it, the provisions of Cr.P.C. relating to the matters covered by such Statute would not be applicable to the said offences. The Customs Act was enacted in 1962 and had created the offences under Chapter-XVI and the manner of enquiry and investigation are prescribed in Chapter-XIII. The Customs Act is enforced only by the Customs Officers by its own machinery. The Customs Officers are empowered with the power of investigation as contemplated under Chapter-XIII of the Customs Act, 1962. The Customs Officer is not a police officer as per the judgment of the Hon’ble Apex Court in Barkat Ram’s case (4 supra) and the statement made before him by a person who is arrested or against whom an enquiry is made are not covered by Section 25 of the Indian Evidence Act.”
Noting that the provisions of Section 160 Cr.P.C. are not applicable to Section 108 of the Customs Act, 1962, the Court held that “as summoning of the petitioners by the respondents would not amount to taking any coercive steps like arresting them or prosecuting them, but only to proceed forward with the investigation and, however, as the learned Additional Solicitor General of India also conceded that they were not insisting on the presence of petitioners No.1 and 2, it is considered fit to allow the petition with regard to petitioner Nos.1 and 2 and to dismiss the petition with regard to petitioner Nos.3 to 5. The petitioners No.3 to 5 are directed to comply with the summons and to give their statements in person and to co-operate with the investigation in the interest of justice.”
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