Rajendra Jangid S/O Shri Kailash Chand vs. Union Of INDIA
Original PDF →Facts
The petitioners, Rajendra Jangid and Surendra Kumar Mali, residents of Ajmer, Rajasthan, filed a writ petition seeking a prohibition against the respondent-authorities from taking coercive action, including arrest, under the Customs Act, 1962. They alleged that summons were issued under Section 108 of the Act, and despite their innocence, they apprehended arrest due to ongoing investigations into alleged evasion of customs duty on diamond transactions. The petitioners also questioned the territorial jurisdiction of the Ahmedabad authorities issuing the summons and argued that coercive action should not be taken without following constitutional provisions and Section 41A of the CrPC. The respondents contended that the summons were validly issued for inquiry purposes, requiring the petitioners to produce documents and tender statements regarding non-physical imports.
Held
The Court held that no case was made out for interference at this stage. Regarding the first issue, the Court found that the summons were issued for inquiry into non-physical imports under the Act, requiring the petitioners to give evidence and/or produce documents. The petitioners failed to demonstrate, with reference to specific legal provisions, that the Jaipur authorities lacked territorial jurisdiction to issue summons under Section 108 of the Act to residents of Ajmer. The Court also noted that the summons did not, on their face, indicate an intention to arrest. Concerning the second issue, the Court relied on the Supreme Court's decision in The State of Gujarat ETC. Vs. Choodamani Parmeshwaran Iyer & Anr. ETC., which held that the power to arrest is statutory and the Writ Court should not ordinarily interfere with its exercise, especially when the authority has reasons to believe an offense has been committed. The Court reiterated that at the stage of summons, anticipatory bail under Section 438 of the CrPC cannot be invoked, and protection against pre-arrest can only be sought under Article 226 of the Constitution, which should be exercised sparingly. The Court presumed that the authorities would act in accordance with law and dismissed the petition. The ratio is that a writ court should not ordinarily interfere with the issuance of summons for inquiry under the Customs Act, as it is a statutory power, and apprehensions of arrest at this stage are premature and speculative unless there is a clear contravention of law or malafides.
Key Issues
1. Whether the issuance of summons under Section 108 of the Customs Act, 1962, by the respondent-authorities is valid, particularly concerning territorial jurisdiction and the apprehension of arrest by the petitioners? 2. Whether the petitioners are entitled to protection against coercive action, including arrest, at the stage of issuance of summons for inquiry purposes under the Customs Act, 1962? Petitioner's Arguments: The petitioners argued that the summons were issued without a basis, and they apprehended arrest upon appearing before the authorities. They contended that the authorities at Ahmedabad lacked territorial jurisdiction. They also asserted that coercive action should not be taken without adjudication of the show cause notice, collection of credible evidence, and formation of reasons to believe, and without following Section 41A of the CrPC. They relied on the fact that some individuals arrested in similar cases had been granted bail. Respondent's Arguments: The respondents argued that the summons were issued in valid exercise of powers under Section 108 of the Customs Act, 1962, for the purpose of inquiry, requiring the production of documents and tendering of statements. They stated that the summons did not, on their face, indicate an intention to arrest and that the petitioners were allegedly involved in the transactions under investigation.
Sections Cited
Section 108, Section 41A, Article 226, Section 145, Section 83, Section 70, Section 69, Section 438, Section 19, Article 14, Article 19, Article 21
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
Order 02/04/2024
Heard on admission.
By instant petition, the petitioners have prayed for issuance of a writ of prohibition, certiorary, mandamus, or any other appropriate writ, order or direction to prohibit the officers of the respondents from taking any coercive action under the provisions of the Customs Act, 1962 (for short ‘the Act of 1962’) against the
[2024:RJ-JP:15318-DB] (2 of 8) [CW-3373/2024] petitioners. The relief clause further states that prayer made by the petitioners is that such coercive action should not be taken without following the mandatory provisions of the Constitution of India; Section 41A of the Code of Criminal Procedure; without adjudication of the show cause notice; and until collection of credible evidence and forming reasons to believe.
Learned counsel for the petitioners argued that the respondent-authorities have issued summons under Section 108 of the Act of 1962 to the petitioners, requiring them to appear before the authorities. According to the learned counsel for the petitioners, the manner in which the respondents are proceeding to make various enquiries/investigations and issuing show cause notice on the allegation of alleged evasion of customs duty during the course of certain transactions, the petitioners are apprehending their arrest as soon as they appear pursuant to those summons issued against them. Learned counsel for the petitioners would submit that the petitioners have not committed any sort of offence whatsoever and they are completely innocent.
It is further submitted that the background of allegations in which the summons have been issued to the petitioners, indicates that the petitioners are sought to be associated, without any basis, in certain business transactions of sale and purchase of diamonds allegedly made without payment of duty leviable under the Act of 1962. It is submitted that with respect to the alleged investigation done by the prosecution, certain persons have already been arrested, who had applied for grant of regular bail and in some of the cases, relief has also been granted. Further submission of the learned counsel for the petitioners is that the
[2024:RJ-JP:15318-DB] (3 of 8) [CW-3373/2024] show cause notice has already been issued alleging evasion of duty, which proceedings are still pending. Even though, there is no cogent and clinching material available with the respondents insofar as the present petitioners are concerned, the petitioners are under strong apprehension that the moment they appear before the authority pursuant to those impugned summons, they will be arrested.
It is also submitted that the respondent-authorities at Jaipur and Ahmedabad, both are carrying out parallel proceedings. According to the learned counsel for the petitioners, the impugned summons have been issued by the authorities at Ahmedabad, which does not have territorial juri iction to deal with the petitioners in respect of alleged evasion of customs duty. It is also submitted that there are reasons for the petitioners to apprehend that respondents may even proceed to arrest them without following the mandate of Section 41A of the Code of Criminal Procedure.
On the other hand, learned counsel for the respondents, on advance copy, would submit that the summons which have been issued to the petitioners are in valid exercise of powers under Section 108 of the Act of 1962. The summons, on its face, do not, by itself, show that the petitioners are being summoned for the purposes of arrest. He would submit that the contents of summons show that the petitioners have been directed to appear before the authority for the purposes of producing documents; tender statement; and to produce other materials in the matter of making enquiry in connection with Non Physical Import under the Act of 1962. Further the notice also shows that their evidence may
[2024:RJ-JP:15318-DB] (4 of 8) [CW-3373/2024] also be required. He would submit that the transactions, wherein customs duty is alleged to have evaded, allegedly involve the petitioners also and, therefore, summons have been issued by the competent authority.
Having heard learned counsel for the parties and upon perusal of the material available on record, we are of the view that no case is made out for interference, at this stage. The contents of the summons clearly show that the respondent-authorities are making enquiry in connection with Non Physical Import under the Act of 1962. The summons show that the authority considers the attendance of the petitioners necessary to give evidence and/or produce documents and even they may be required to tender statement. The notices show that the petitioners have been directed to produce copy of bank statement of all bank accounts held by them and any firm related to them with respect to the period from April, 2017, till the date of issuance of notice along with ITR for the period from April, 2017 to March, 2021. 8. The petitioners are residents of Ajmer. They are alleged to be involved in evasion of duty during the course of sale and purchase of certain diamonds. Upon receipt of information, the Authority at Jaipur, exercising territorial juri iction over the area of Ajmer, issued notice to the petitioners. Learned counsel for the petitioners failed to demonstrate, with reference to the specific provisions under the law, that the authority at Jaipur would not have territorial juri iction to issue summons under Section 108 of the Act of 1962 to the petitioners.
In the absence of there being contravention of any of the provisions of law in the matter of issuance of summons under
[2024:RJ-JP:15318-DB] (5 of 8) [CW-3373/2024] Section 108 of the Act of 1962, pleadings bereft of any allegations of malafides, and that taking into consideration that presently only enquiry is being made, no case for invoking extraordinary juri iction under Article 226 of the Constitution of India is made out. It is well settled that in the matter of issuance of summons requiring a person to tender statement and to produce required documents, unless it suffers from contravention of law, the Writ Court would not ordinarily interfere and allow the authorities to exercise their powers under the law in the matter of alleged evasion of tax/duty. All other apprehensions of the petitioners that Parmeshwaran Iyer & Anr. ETC [SLP (Crl.) No.4212-4213 of 2019] decided on 17.07.2023, the Hon’ble Supreme Court dealing with the issue in almost identical factual background, wherein the summons came to be issued under Section 145 of the Central Excise Act, 1944, as made applicable to the service tax vide Section 83 of the Finance Act, 1994 and Section 70 of the Central Goods and Service Tax Act, 2017, has declared that it is well settled position of law that power to arrest a person by an empowered authority under the GST Act could be termed as statutory in character and ordinarily the Writ Court should not interfere with exercise of such power as such power of arrest can be exercised only in those cases, where authority has reasons to believe that the person has committed any offence punishable under the law. Relying upon earlier decision in the case of Union of India Vs. Padam Narain Aggarwal & Ors. (2008) 13 SCC
[2024:RJ-JP:15318-DB] (6 of 8) [CW-3373/2024] 305, it has been observed that such powers are required to be exercised on objective facts of commission of offence enumerated and the officer concerned must have reason to believe that a person sought to be arrested, is guilty of such an offence. Further, it was also reiterated that ordinarily the Writ Court should not impose any condition before effecting arrest as that would render ineffective, nugatory and meaningless statutory provisions. It was also held that if any person is summoned under Section 69 of the CGST Act, 2017 for the purposes of recording of his statement, the provisions of Section 438 of the Code of Criminal Procedure, 1908, cannot be invoked. Following observations were made:- “16. Thus, the position of law is that if any person is summoned under Section 69 of the CGST Act, 2017 for the purpose of recording of his statement, the provisions of Section 438 of Criminal Procedure Code, 1908 cannot be invoked. We say so as no First Information Report gets registered before the power of arrest under Section 69(1) of the CGST Act, 2017 is invoked and in such circumstances, the person summoned cannot invoke Section 438 of the Code of Criminal Procedure for anticipatory bail. The only way a person summoned can seek protection against the pre-trial arrest is to invoke observed that a claim for pre-arrest protection is neither a statutory right nor a right guaranteed under Articles 14, 19 and 21 resply of the
[2024:RJ-JP:15318-DB] (7 of 8) [CW-3373/2024] Constitution of India. Although the Constitution Bench of this Court held that there is no bar for the High Court to entertain an application for pre- arrest protection under Article 226 of the Constitution of India, yet it was held that such power should be exercised sparingly. There is a fundamental distinction between a petition for anticipatory bail and the writ of mandamus directing an officer not to effect arrest. A writ of mandamus would lie only to compel the performance of the statutory or other duties. No writ of mandamus would lie to prevent an officer from performing his statutory function. When a writ application is filed before the High Court under Article 226 of the Constitution, the writ court owes a duty to examine the fact of the case and ascertain whether the case of the writ applicant falls under the category of exceptional cases as indicated in Kartar Singh (supra). The Writ court should also ensure whether by issuing the writ of mandamus, it would be preventing the competent authority or proper officer from performing any of their statutory functions.”
An apprehension has been raised that the petitioners may be arrested in violation of the revised guidelines dated 16.08.2022, issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Investigation-Customs). There exists no reason for us to support such an apprehension. It is presumed that the authorities will act in accordance with law.
A Division Bench of this Court in D.B. Civil Writ Petition No.17040/2022-Ankush Jain Vs. Union of India & Ors., repelled similar challenge vide its order dated 21.12.2022. Referring to provisions contained in Section 108 of the Customs Act, it was held as below:- “7. A bare perusal of the aforesaid provision would reveal that for the purposes of issuing any summon, the Officer has to be seized with an enquiry under an Act and he has the power to summon any person whose attendance he
[2024:RJ-JP:15318-DB] (8 of 8) [CW-3373/2024] considers necessary either for the purposes of evidence or for production of any documents. It is not necessary that the said inquiry be directed against him.
There is no dispute to the fact that the Officer issuing the summons is making some enquiry may be in respect of the Non Physical Import under the Act and as such has the power to summon any person which he may consider necessary for the purposes of evidence or for production of documents. Therefore, the issue whether the Non Physical Import is an item chargeable to customs duty under the Act is completely alien for the purposes of issuing summons under Section 108 of the Act. The issuance of summons is not based upon the chargeability of customs duty on a particular item or goods but upon the satisfaction that his attendance is necessary to give evidence or to produce a document.
In view of the above, the first submission of the counsel for the petitioner has no legs to stand and stands rejected.”
In view of the above consideration, we do not find any ground to interdict the process initiated for issuance of summons requiring petitioners’ presence.
The petition is accordingly dismissed in limine. Pending application, if any, also stands rejected. (BHUWAN GOYAL),J (MANINDRA MOHAN SHRIVASTAVA),CJ KAMLESH KUMAR/10
Reproduced from the public record of the Rajasthan High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.