Judgment
2025:KER:30493 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947 WP(C) NO. 9402 OF 2025 PETITIONERS:
1 ABDU RAHEEM AGED 49 YEARS S/O. ALI BAPPU, RESIDING AT PALLITHODUVIL HOUSE, MARKET ROAD, THALAKKADATHUR P.O. TIRUR, MALAPPURAM DISTRICT, PIN - 676103 2 NASEEHATH V.P AGED 36 YEARS W/O. ABDUL RAHEEM, RESIDING AT PALLITHODUVIL HOUSE, MARKET ROAD, THALAKKADATHUR P.O. TIRUR, MALAPPURAM DISTRICT, PIN - 676103 BY ADVS.
M.AJAY V.P.PRASAD RESPONDENTS:
1 THE DEPUTY COMMISSIONER OF CUSTOMS (PREV.)
FIRST FLOOR, OLD CENTRAL REVENUE BUILDING, GST BHAVAN, MANANCHIRA, KOZHIKODE, PIN - 673001 2 THE SUPERINTENDENT OF CUSTOMS (PREVENTIVE) OFFICE OF THE DEPUTY COMMISSIONER OF CUSTOMS (PREVENTIVE), FIRST FLOOR, OLD CENTRAL REVENUE BUILDING, GST BHAVAN, MANANCHIRA, KOZHIKODE, PIN - 673001 BY ADVS.
GIRISH KUMAR V R.HARISHANKAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:30493 W.P.(C). No.9402 of 2025 -:2:- BECHU KURIAN THOMAS, J.
--------------------------------------- W.P.(C). No.9402 of 2025 --------------------------------------- Dated this the 8th day of April, 2025 JUDGMENT Petitioners have approached this Court seeking to quash the summons issued under Section 108 of the Customs Act, 1967 (for short, ‘the Act’). Petitioners have also, in the alternative, sought for permission to appear before the Customs Officers to be present along with an Advocate when their statements are being recorded under Section 108 of the Act.
2. Pursuant to a search conducted on 14.02.2025 in a property near petitioners’ residence, the Customs Officers searched the petitioners’ residence and business premises also on 18.02.2025 and 03.03.2025. Subsequently, a summons was issued to the 1st petitioner as per Exhibit-P1, to appear before them to give a statement under the Act. Immediately, on receipt of the summons, 1st petitioner filed Exhibit-P2 representation requesting exemption from personal appearance and also, in the alternative, requested for a period of two months to appear, as he claimed that he is not in a position to walk.
Once again, by Exhibit-P3 and Exhibit-P4, another summons was issued to the petitioners appear before the Officer on 04.03.2025. Yet again, citing the month of Ramadan, petitioners requested further time for appearance and thereafter filed Exhibit-P6 affidavit in lieu of personal
2025:KER:30493 W.P.(C). No.9402 of 2025 -:3:- appearance. In the meantime, since the respondents insisted on petitioners appearing before them to give their statement, this writ petition has been filed, challenging the summons issued under Section 108 of the Act and for other reliefs.
3. A counter affidavit has been filed by the respondents pointing out, inter-alia, that there are materials, prima facie to show that the 1st petitioner and his partner are leading traders in cigarettes of foreign origin illegally smuggled to India. It is also stated that the voluntary statements under Section 108 Act will be recorded in own handwriting of the petitioners, that too without any force or coercion, and all necessary rules and regulations will be complied with. It is further stated that the presence of an Advocate during the recording of the statement will hamper the investigation.
4. A reply affidavit has been filed by the petitioner denying the averments in the counter affidavit.
5. I have heard Sri. M. Ajay, the learned counsel for the petitioner as well as Sri. R. Harishankar, the learned Standing Counsel for the respondents.
6. Petitioners have been served with a summons under Section 108 of the Act. It is a procedure as prescribed by law. Once summons is issued under Section 108 of the Act, petitioners cannot evade from appearing before the Competent Authority for any reason whatsoever. An affidavit in lieu of statement under Section 108 of the
2025:KER:30493 W.P.(C). No.9402 of 2025 -:4:- Act is not a substitute, and therefore, the challenge against Exhibit-P1 is without any basis.
7. As far as the request for the presence of an Advocate during the stage of taking the statement is concerned, I am of the view that the said request is justified in the light of the decision of the Supreme Court in Rohit Sakhuja v. Directorate of Revenue Intelligence [(2019) 18 SCC 821] as well as the decision in Birendra Kumar Pandey and Another v. Union of India and Another [2023 SCC Online SC 1552]. In the latter of the above cases, the Supreme Court permitted the Advocate of the petitioner therein to be present during interrogation within a visible distance beyond hearing range and also imposed a condition that the Advocate must be prepared to appear whenever petitioners therein were called to attend such interrogation.
8. The learned counsel for the respondents fairly submitted that respondents have no objection in permitting an Advocate to be present and also that, they do not want the presence of the 2nd petitioner, at least for the time being for interrogation. The said submissions were recorded.
9. In view of the above, there will be a direction to the respondents to permit the 1st petitioner to appear before them for interrogation to give statement under Section 108 of the Act with the assistance of an Advocate on 22.04.2025 at 10.30 am. The Advocate, who accompanies the 1st petitioner, will be permitted to sit at a distance
2025:KER:30493 W.P.(C). No.9402 of 2025 -:5:- beyond the hearing range, but within the visible limits, and the Advocate for the 1st petitioner shall be present whenever the petitioners are called for interrogation. Petitioners shall co-operate and participate in the proceedings without fail.
The writ petition is disposed of as above.
Sd/- BECHU KURIAN THOMAS JUDGE Jka/08.04.2025.
2025:KER:30493 W.P.(C). No.9402 of 2025 -:6:- APPENDIX OF WP(C) 9402/2025 PETITIONERS’ EXHIBITS Exhibit P1 A TRUE COPY OF THE SUMMONS ISSUED TO THE FIRST PETITIONER UNDER S. 108 OF THE CUSTOMS ACT, 1967 IN OR 25/24-25/CPD/CLT DATED 17.2.2025 Exhibit P2 A TRUE COPY OF THE LETTER DATED 25.2.2025 (WITHOUT THE ENCLOSURES) SENT BY THE FIRST PETITIONER BY REGISTERED POST WITH A/D TO THE SECOND RESPONDENT Exhibit P3 A TRUE COPY OF THE SUMMONS ISSUED BY THE SECOND
RESPONDENT
TO
THE
FIRST PETITIONER DATED 3.3.2025 Exhibit P4 A TRUE COPY OF THE SUMMONS ISSUED TO THE SECOND PETITIONER BY THE SECOND RESPONDENT DATED 3.3.2025 Exhibit P5 A TRUE COPY OF THE LETTER DATED NIL SENT BY THE FIRST PETITIONER TO THE SECOND RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION Exhibit P6 A TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE FIRST PETITIONER BEFORE THE SECOND RESPONDENT DATED 4.3.2025 Exhibit P7 A TRUE COPY OF THE LETTER DATED NIL SENT BY THE SECOND PETITIONER TO THE SECOND RESPONDENT WITH ITS ENGLISH TRANSLATION.
RESPONDENT EXHIBITS Exhibit R1(a) TRUE COPY OF MAHAZAR DATED 18.02.2025 Exhibit R1(b) TRUE COPY OF MAHAZAR DATED 03.03.2025