Kerala High Court
Muhammed Asif K.A vs Sreejith M on 9 April, 2021
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
Con.Case(C).No.209 OF 2021 IN WP(C). 10771/2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 10771/2020(V) OF HIGH COURT OF
KERALA
PETITIONERS/PETITIONERS:
1 MUHAMMED ASIF K.A.,
AGED 30 YEARS,
S/O. ABBAS K.A., R/O KAROTHUKUDY HOUSE, KANDANTHARA,
ALLAPRA P.O., PERUMBAVOOR, ERNAKULAM, KERALA-683 553
2 MUHAMMED FASIL V.A.,
AGED 25 YEARS,
S/O. ABOOBACKER V.A., R/O VELLEMVELI HOUSE,
RAYONPURAM, P.O. SOUTH VALLAM, PERUMBAVOOR,
KERALA-683 553.
BY ADV. SRI.P.A.AUGUSTIAN
RESPONDENTS/RESPONDENTS:
1 SREEJITH M.,
AGED 34 YEARS,
S/O. P.ACHUTHAN UNNI, DEPUTY DIRECTOR,
DIRECTORATE OF REVENUE INTELLIGENCE,
VILAKUNNEL HOUSE, DOOR NO.40/552, KAITHOTH ROAD,
PALARIVATTOM, COCHIN-682 025.
2 SHREENI B PILLAI,
SENIOR INTELLIGENCE OFFICER,
DIRECTORATE OF REVENUE INTELLIGENCE,
MUMBAI ZONAL UNIT, 4TH FLOOR, 13, SIR VITHALDAS
THACKERAY MARG, NEW MARINE LINES, MUMBAI 4000 020
(AGE AND FATHERS NAME NOT KNOWN TO THE PETITIONER).
R1-2 BY SHRI.S.MANU, CGC, DIRECTORATE OF REVENUE
INTELLIGENCE KERALA REGIONAL UNIT
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD
ON 03-03-2021, THE COURT ON 09-04-2021 DELIVERED THE FOLLOWING:
Con.Case(C).No.209 OF 2021 -2-
JUDGMENT
Dated this the 9th day of April 2021 This Court vide judgment dated 22.06.2020 considering the prayers made therein, disposed of the writ petition by passing the following:
"Petitioners two in number being the residents of Kerala through instant writ petition sought the indulgence of this Court with the following prayers:
(a) To issue a writ of mandamus or any other appropriate writ order or direction, directing the Respondent no. 1 to permit the petitioners to forthwith record their statements under Section 108 of the Customs Act, 1962 by video conferencing in investigations under Customs Act, 1962 in File No.DRI/MZU/E/INT-65/2019, by temporarily waiving their physical presence, till further rise in Covid-19 cases comes to a halt;
(b) At the interim / ad-interim stage, pending final disposal of the instant writ petition, the Respondent no.
1 may please be directed to permit the petitioners to forthwith record their statements under Section 108 of the Customs Act, 1962 by video conferencing in investigations under Customs Act, 1962 in File No. DRI/MZU/E/INT-65/2019, by temporarily waiving their physical presence:
(c) Any other further directions as may deem just, fit and expedient may also please be passed.
(d) Grant such other relieve that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
2. During the course of the hearing of the writ petition on the last date it is brought that the W.P. (Crl).No.883202 of 2020 and Crl.Mc.Appln.7327 of 2020 Con.Case(C).No.209 OF 2021 -3- had been filed in the High Court of Delhi for seeking a permission for detention in Kerala. Sri.Ashish Batra, learned counsel appearing on behalf of the petitioners informs the Court that as an interim measure vide order dated 16.06.2020 Hon'ble Delhi High Court has permitted the petitioners to surrender before the Deputy General of Police, Government of Kerala, Thiruvananthapuram and have surrendered also.
3. Sri.S.Manu, learned counsel appearing on behalf of Directorate of Revenue Intelligence (DRI) Officer does not dispute the factum of the order as well as the surrender. He submits that the petitioners have been put into quarantine in Thiruvananthapuram jail and after the period of quarantine the statements would be recorded by DRI officials from Mumbai, thus no cause of action survives.
4. At this stage Sri.Ashish Batra, learned counsel appearing on behalf of the petitioners confines the prayer that the respondents may be directed to expedite the recording of the statement and issuance of show cause notices.
5. Having heard learned counsel for the parties and appraised the paper book, I am of the view that prayer sought in the writ petition in general no longer subsists. In view of interim order dated 16.06.2020 of the Hon'ble High Court of Delhi Petitioners are in detention in Thiruvananthapuram Jail. After the period of quarantine the respondents are directed to expedite the recording of the statement under Section 108 and issue regarding show cause notice under Section 124 of the Customs Act be expedited.
The writ petition with aforementioned observation stands disposed of."
2. I.A.No.1/2020 has been filed seeking clarification of the order to the limited extent that the direction given by this Court for expeditious issuance of show cause Con.Case(C).No.209 OF 2021 -4- notices under Section 124 of the Customs Act construed as the issuance of show cause notice immediately in view of the fact that almost six months have passed since passing of the judgment dated 22.06.2020 and till date, no show cause notices have been issued. The aforementioned application is dated 17.12.2020.
3. However the contempt petition bearing No.209/2021 dated 19.01.2021 has been filed on the premise that the respondents did not issue the show cause notices after a lapse of considerable time and failed to comply with the judgment. In response to the notice issued in the contempt case and the application, respondents have filed a reply raising the following objection:
(1) that there was no such direction for expediting the issuance of the show cause notices and in view of the judgment rendered by the Hon'ble Supreme Court in Union of India and Others v. Oswal Woollen Mills Ltd. and Others (AIR 1984 SC Con.Case(C).No.209 OF 2021 -5- 1264) when no time limit is fixed for compliance of the directions, there will not be any contempt. (2) Efforts were made to record the statements of the petitioners and to finalise the proceedings expeditiously as directed by the Court. Petitioners in view of the order passed by the Delhi High Court surrendered themselves before the police Authorities of Kerala. Considering the aforementioned facts this Court disposed of the writ petition.
(3) Efforts were being made to conclude the investigation by recording the statements of the petitioners while undergoing detention in the Central Prison, Thiruvananthapuram on 23.07.2020.
Petitioners remained non co-operative during the course of interrogation in the jail premises. They could not be confronted with various documentary and digital evidences inside the jail premises in siphoning off the smuggled gold. It was felt that the petitioners be summoned and questioned independently to complete the investigation. Con.Case(C).No.209 OF 2021 -6- (4) Show cause notices dated 17.12.2020, 31.12.2020 and 14.01.2021 were issued. Petitioners neither appeared before the DRI nor replied to the aforementioned summons and have only stated about the summon dated 31.12.2020.
(5) Show cause notices were issued to several persons including the petitioners on 24.09.2019 followed by a supplementary notice dated 24.02.2020. But the issuance of the show cause notice in respect to the illegal acts committed by the petitioners under investigation as of now is required.
4. Respondents have made every possible efforts to complete the investigation expeditiously and finalise the proceedings. Officers of the Directorate cannot be injuncted from arresting the respondents at the time and the place for carrying out the interrogations fixed by the High Court in view of the judgment laid down by the Honourable Supreme Court in Dukhishyam Benupani Vs. Arun Kumar Bajoria ((1998) 1 SCC 52). No Con.Case(C).No.209 OF 2021 -7- interference in the freedom of the officer of Customs is contemplated under Section 108 of the Custom Act.
5. I have heard counsel for the parties and appraised the paper books and am of the following view:
6. Dukhishyam (supra) was a case pertaining to cancellation of the pre-arrest bail by the Enforcement Director whereby the Division Bench of the High Court issued a uncalled interim direction injuncting arrest of the respondent fixing the time and place of carrying out the interrogation. In the instant case from June, 2020 till November 2020 admittedly the petitioners were available without armed with any pre-arrest bail order. They were interrogated by the DRI in custody at the Thiruvananthapuram Jail on account of surrender in pursuance of notification dated 2 nd July, 2019 either before director General of Police, Government of Kerala or the Commissioner of Police, Government of Maharashtra, Mumbai. DRI ought to have completed the investigation by issuing addendum to the show cause notice dated 24.09.2019 for expeditious, penal and confiscated Con.Case(C).No.209 OF 2021 -8- adjudication proceedings. It is in that background directions for expediting the show cause notices were issued by this Court. Since the DRI wants the further statement of the petitioners being dissatisfied with the statements recorded while in custody, unless the addendum to the show cause notice dated 24.09.2019 is issued before the adjudicating authority showing progress of further investigation, the penal and confiscated adjudication would be further delayed, not regarding the petitioners but other persons also.
7. In Poolpandi and Others Vs. Superintendent, Central Excise and Others ((1992) 3 SCC 259) Supreme Court was pleased to reject the argument recorded in paragraph No.5 thereof claiming the presence of lawyer for active participation who could advise potential accused. The answer to the aforementioned objection has been given in the judgment SIO, DRI Vs. Jugal Kishore Samra (2007 Crl LJ 2692) wherein presence of an advocate at a visible but not audible distance was permitted which would not amount to any Con.Case(C).No.209 OF 2021 -9- active participation of the advocate.
8. The situation of Corona/COVID-19 for the last two weeks has increased exponentially, there has been lock down in Maharashtra, Panjab, Chandigarh and various other states. Even curfews have been imposed in Delhi and Chandigarh. Considering the fact that the petitioners are in Kerala and also for the safety of the DRI officials, it is directed that petitioners would appear before the investigating officers on 15.04.2021 from 10 a.m. till
6.p.m. And would be entitled to have an advocate present at a visible distance beyond audibility during interrogation and recording of the statement. After recording the statements and completing the investigation, respondent DRI may consider it appropriate in issuing addendum to show cause notice dated 24.09.2019 as expeditiously as possible preferable within a period of six weeks from 15.04.2021, so that the adjudication proceedings in respect of all the persons involved can be taken up expeditiously and till such time, for the safety of the officers and persons involved, the personal liberty of Con.Case(C).No.209 OF 2021 -10- petitioners shall not be prejudiced. Needless to say if the petitioners would fail to appear before the DRI as directed, DRI shall be at liberty to move this Court for taking strict action against the petitioners. Ultimately no ground for contempt is made out.
Application stands disposed of with the above clarification in the order dated 22.06.2020.
Sd/-
AMIT RAWAL JUDGE vv Con.Case(C).No.209 OF 2021 -11- APPENDIX OF Con.Case(C) 209/2021 PETITIONER'S/S EXHIBITS:
ANNEXURE I CERTIFIED COPY OF THE JUDGMENT DATED 22.6.2020 IN WPC NO.10771 OF 2020.