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According to the Ld. Additional Advocate General the entire exercise of recording statement of the petitioners, who stands in the character of an accused, would be in vain. Though a Customs Officers is vested with certain powers of police officer, still he is not statutorily empowered to conclude the investigation and file a report in final form u/s. 173(2) of Cr. P.C. The Customs authorities have opted for lodging written information with the police authorities; and in view of the order passed by the Ld. Magistrate, the police authorities are investigating into the offence. The Customs authorities cannot, thereafter, take recourse to Section 137 of the Customs Act, 1962 read with the provisions contained in Chapter XV of the Cr. P.C. The combined operation of Sections 4(2) and Section 26(b) of Code is that the offence complained of should be investigated or inquired into or tried according to the provisions of the Code where the enactment which creates the offence indicates no special procedure. Since the police authorities are vested with the jurisdiction to investigate in view of the order passed by the Ld. Magistrate, the Customs authorities are denuded of their authority to make enquiry in connection with the offence under Section 133 of the Customs Act, 1962.

The summons were issued in relation to Section 133 of The Customs Act, 1962. The expression should be understood in contradistinction to "into". "In connection to", shows that it may include matters both prior to as well as subsequent to or consequent upon as long as they relate to the principal thing. The obstruction having aborted the inquiry, the same was initiated under the summons and merely because it was subsequent to the obstruction would not make it in any way unconnected to the same so as to attract any legal inhibition about the process. The expression 'in connection with' merely requires some "nexus" or "link' and where such nexus or link, no matter how loose exist, everything ancillary and incidental to that 'in connection with' which the summon is issued would be covered by it. Obstruction of an officer on duty is punishable both under the IPC, 1860 and The Customs Act. Prosecution is distinct from adjudication and Section 127 of The Customs Act, 1962 itself shows that the award of confiscation and penalty under the Act would not prevent infliction of punishment under Chapter XVI of the Customs Act, 1962 or under any other law. Consequently, it is open to the Customs Authorities to adjudicate on confiscation and penalty, and resort to adjudication would not in any way affect prosecution under the Customs Act, 1962 or under any other law. The summons in question are preliminary to the issue of adjudication and may also enable the Customs Authorities to decide whether prosecution under any other provision of Chapter XVI (like Section 135 of The Customs Act, 1962) may be necessary. Merely because the information is furnished with regard to obstruction will not affect the right in Customs Authorities to commence adjudication or decide upon prosecution under Chapter XVI. The said prosecution, moreover would not be under the general law but in terms of Section 137 of the Customs Act, 1962 which would require a complaint with a previous sanction of the Principal Commissioner of Customs or Commissioner of Customs. (I) Adjudication proceedings and criminal proceedings can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) Adjudication proceedings and criminal proceedings are independent of each other and (iv) Adjudication proceedings by the Customs is not prosecution by a competent Court of law to attract the provisions of Article 20(2) of the Constitution of India or Section 300 of the Criminal Procedure Code, 1973. A bare look at the information filed by the Customs shows that it reveals offences other than Section 133 of the Customs Act, 1962 and also shows combination of other persons along with the Petitioner in the commission of the offence. It is clearly conspiratorial act which like Sections 186, 503, 419 and 471 of the IPC, 1860 are not offences under Customs Act and therefore cannot be subject matter of proceedings before the Collector of Customs. It is irrational to presume that having itself initiated criminal proceedings (under general law) and correctly referring only the said offences under the general law to investigation by the Police, the Customs Authorities themselves issued the summons to make an inquiry into the very same offences themselves. The summons, obviously being issued "in connection with" would refer to other matters ancillary and incidental to the obstruction and hence relate to matters of penalty and also offence which under the Customs Act may be attracted to the incident. Moreover, a mere reference to Section 133 of the Customs Act, 1962 in the information would not mean that the police would investigate the same due to the reason that an offence under Section 133 of the Customs Act, 1962 can only culminate into a complaint under Section 137 of the Customs Act, 1962 in which the police has no role. In making the submission aforesaid, the argument does not travel beyond the summons and is on the contrary relatable directly to it and arises from the very terms in which the same has been issued.

(i) all bags were checked and no contraband was found; (ii) petitioner and her sister were "allowed to leave" through the "green channel" (iii) clearance of the petitioner and her sister was made "peacefully". After exchange of multiple incident reports superior officers of customs were of the opinion that a police information/complaint should be filed and the allegations should be investigated by the police. This is evident from the police information/complaint. Further, the complaint also demonstrates that no internal enquiry was pending, and the customs was unequivocal about its opinion that the petitioners were guilty of offences under Section 133 of the Act, and Sections 186 and 503 of the IPC. This is in complete contradiction to the argument of the customs, while making submissions, that the investigation is incomplete. The complaint filed by the Customs Department is only after the Commissioner of Customs had sanctioned Magisterial intervention. Section 137 of the Act states that no court can take congnisance of an offence under Section 133 of the Act without the previous sanction of either the Principal Commissioner of Customs or Commissioner of Customs.

ii. The authority was never precluded from initially writing other provisions of law and alleging such contravention by the petitioner. However, no such allegation of Section 117 exists. The summon issued under Section 108 for an offence under Section 133, cannot be expanded for making roving enquiry. Roving enquires in case of summons etc. are impermissible in law .

In order to bolster their case that the summons issued pertained to imposition of penalty under Section 117 of the Act, Customs has erroneously relied on Section 26 of the General Clauses Act. Section 26 of General Clauses Act states that when the act constitutes an offence under two or more enactments then it can be proceeded with simultaneously. However, Sections 117 and 133 are of the same Act and therefore such argument hold no water. Similarly, the customs have erroneously relied on Section 4(2) of the Cr.P.C. for the above purposes. Admittedly the said provision of the CrPC provides that provisions of the special law would apply. However, on application of the special law (i.e. the Customs Act), the customs would be forced to revert back to the Magistrate by virtue of operation of Section 137 and Section 138 of the said Special Law quo violation of Section 133 and cannot carry on parallel investigation once Magisterial intervention has been sought in accordance with the said Section 137 and 138 of the Customs Act.