Calcutta High Court (Appellete Side)
Rujira Naroola vs Union Of India & Ors on 8 April, 2019
Author: I. P. Mukerji
Bench: I. P. Mukerji
1 4.2019
2. Asr MAT 538 of 2019 With CAN 3912 of 2019 Rujira Naroola Versus Union of India & Ors.
Mr. Ahin Choudhuri, Sr. Advocate Mr. Partha Sarathi Sengupta, Sr. Advocate Mr. Sanjay Basu Mr. Arijit Chakraborti Mr. Anil Kumar Nag Mr. Samik Chakrbaorty Mr. Piyush Agarawal.....Advocates .....for the appellant Mr. Aman Lekhi, Ld. ASG, Supreme Court of India Mr. Aman Malik Mr. Ujjawal Sinha Mr. Amitabrata Ray Mr. K. K. Maity Mr. Bhaskar Prasad Banerjee, Advocates ....for the Custom Authorities Mr. Kishore Datta, Ld. Advocate General Mr. Abhratosh Majumder Mr. Avra Mazumder .....for the State This is an appeal from an interim order dated 4th April, 2019 passed by a learned Single Judge of this court in the writ application (W.P. 7489 (W) of 2019 Rujira Naroola -Vs.- Union of India & Ors.).
The facts of this case are like those in a thrilling novel. 2 The appellant arrived in Netaji Subhas Chandra Bose International Airport, Kolkata in the intervening night between 15th March, 2019 and 16th March, 2019 by a Thai Airways flight. She is a Thai national and holds an Overseas Citizen of India card. She says she "permanently" resides in a premises on Harish Mukherjee Road in this City.
The Custom authorities became suspicious of her and had wanted to check her baggage.
According to them she resented this.
Her baggage was checked by the x-ray machine. According to Mr. Lekhi, the learned Additional Solicitor General appearing for the customs authorities the X-ray report revealed that she was carrying a significant quantity of gold. No image derived from this X-ray scanning suggesting the presence of gold is produced before us. This allegation is disputed by the appellant. Thereafter, the version of the Customs authorities is that, they wanted to open the suitcase, check it and make further search and investigation. Allegedly, the appellant had an all pervasive influence over the airport police. She called them in. They obliged and facilitated the escape of the appellant from the airport.
She managed to leave the airport and reach her home safely. On 16th March, 2019 the appellant lodged a complaint with the Inspector- in-charge of the Airport Police station. She said that she was harassed, intimated and threatened by the Customs authorities. 3
It appears from the records that after a week on 22nd March, 2019 the Customs authorities submitted a written complaint to the Air Port police.
The subject matter of the complaint was, as submitted by the learned Solicitor General is the obstruction of the Customs Officers by the appellant, aided and abetted by the police.
The next day on 23rd March, 2019, the Assistant Commissioner of police wrote to the Additional Chief Judicial Magistrate for permission to investigate the matter and submit a police report. The learned Judge on that day itself granted the permission.
Then came into the impugned summons dated 26th March, 2019 issued by the Customs authorities in exercise of their powers under Section 108 of the Customs Act, 1962. It was issued by a Joint Commissioner of Customs.
The summons was to the following effect:
"Sub : Issuance of Summons under Section 108 of the Customs Act, 1962.
I have been directed to issue summons to you under Section 108 of the Customs Act, 1962, to appear before the Additional/Joint Commissioner of Customs on 08th April, 2019 at 12.00 hours at the office chamber of the Additional Commissioner of Customs (Airport & Admin.), Custom House, 15/1, Stand Road, Kolkata in person, in connection to the offence under Section 133 of the Customs Act, 1962 on your arrival at NSCBI Airport, Kolkata on 15/16.03.2019 by Thai Airways flight No. TG-
313. 4 Your presence is required for giving evidence thereto and or produce documents or things (in your possession) related to the said matter.
Non-compliance of this summons is an offence under Sections 174 & 175 of the Indian Penal Code, 1860.
Please note that giving false evidence in these proceedings is an offence punishable under section 193 of the Indian Penal Code, 1860."
Very short issues but very important and interesting from the legal standpoint have arisen in this case.
The said impugned notice required the presence of the appellant on 8th April, 2019 at Noon "in connection to the offence under Section 133 of the Customs Act 1962."
Section 133 of the Customs Act is the offence of obstruction to a Customs Officer, if any person intentionally obstructs any officer of customs in the exercise of his duty. Such person shall be punishable with imprisonment for a term which may extend to two years or with fine or with both.
The question which immediately arises is whether the Customs authorities have been at all empowered to investigate or inquire into this offence by the Customs Act, 1962 or by any other law.
Mr. Chowdhury, learned Senior Advocate appearing for the appellant submits that they have no such power and that in the absence of such power this notice under Section 108 could not have been issued. The power is with the police under the Code of Criminal Procedure. Learned Additional Solicitor General appearing for the Customs authorities showed us Section 4 and 5 of the 5 Code of Criminal Procedure and argued that if those provisions were applied, the Customs authorities could exercise the power of investigation.
He added that the use of the phrase "in connection to the offence"
suggested that the summons could cover any alleged contravention, violation, action etc. under the Customs Act, 1962.
It was wide enough to cover the contravention of smuggling of gold and other contraventions of the Customs Act, 1962.
Mr. Chowdhury, learned Senior Advocate for the appellant also submitted that two parallel investigations could not be carried out, one by the Customs and one by the police. This would be against the law, most arbitrary and unjust.
Learned Additional Solicitor General contended that Section 26 of the General Clauses Act, 1897 permited this kind of parallel investigation.
Mr. Chowdhury also submitted which was controverted by the learned Additional Solicitor General that the subject summons was not issued according to the mandate of the said Section and was thus invalid.
our prima facie observation is that in the complaint made by the Customs authorities to the police only obstruction caused to them by the appellant was complained of. There was no allegation as is being made today, about illegal importation of gold or any other items in that particular complaint, made some seven days after the incident.
Therefore, prima facie we are of the view that the purported Section 108 summons dated 26th March, 2019 could not have covered the contravention now alleged by them. Even if it is said that this summons covered the alleged illegal, 6 importation or other contravention in that case there ought to have been a recital in the summons as to the new allegation the Customs sought to level against the appellant.
Therefore, we prima facie observe that the only question before the Court is whether this Section 108 summons could have been issued in aid of investigation by the Customs into an offence under Section 133 of the Customs Act, 1962.
In our opinion, a substantial question of law is raised. We do not find that any reason has have been given by the learned Single Judge while passing an interim order. The interim order has been made after narrating the submissions of learned counsel for the parties.
This question of law has to be tried upon exchange of affidavits before the learned single Judge.
This summons was issued some 11 days after the incident and was made returnable today at 12 days after its date of issuance.
Considering the fact that this incident occurred more than three weeks ago, the appellant for whatsoever reason could leave the airport and the summons issued belatedly, we find that there is no urgency requiring the appellant to answer the summons today or at any date in the near future.
We direct the Joint Commissioner of Customs to extend the returnable date of this summons to a date after 31st July, 2019 to enable the learned Single to decide the matter.7
The impugned judgement and order is modified to the extent indicated above. The appellant shall not be required to appear in response to the impugned summons before the authority today and up to 31st July, 2019.
Let affidavits be exchanged in the writ application and the same be heard out by the learned single judge.
We make it absolutely clear that the learned Single Judge will no way be influenced by our findings which are prima facie and will decide the writ in accordance with his or her own judgement.
Affidavit-in-opposition to the above writ petition to be filed by 10th May, 2019.
List this application for hearing on 20th June, 2019 subject to the convenience of the single Bench.
Affidavit-in-reply may be filed in the mean time. The validity of the summons will abide by the result of the writ application. The learned Judge is requested to dispose of the writ application before the returnable date of the summons.
The appeal (MAT 538 of 2019) and the stay application (CAN 3912 of 2019) are disposed of.
( I. P. Mukerji,J.) (Md. Nizamuddin,J)) 8