From: Rebecca Andrews rebecca.andrews88@yahoo.in
| Recording of Statement under Customs Act - Supreme Court allows presence of Advocate 2010-TIOL-98-SC-CUS IN THE SUPREME COURT OF INDIA Crlmp No.23956/2010 ANAND PRAKASH CHOUDHARI Altamas Kabir and Cyriac Joseph, JJ. Dated: November 24, 2010 Appellants Rep by: Mr Rupesh Sharma, Adv., Mr Gopal Balwant Sathe, Adv. Customs – Section 108 – Interrogation to be done in the presence of Advocate who will stay at a visible but beyond hearing distance – It is directed that the interrogation, if any, of the petitioner under Section 108 of the Customs Act, 1962, in connection with file No. DRI/GRU/INV-02/2010-11, be conducted in the presence of his advocate, who would be entitled to stay at a visible but beyond hearing distance, from the place of interrogation. JUDGEMENT This application, Crl.MP No. 23956/10, has been filed on behalf of the writ petitioners, in pending Writ Petition (Crl.) No. 122/10, inter alia, praying for a direction that if the petitioner is to be interrogated under Section 108 of the Customs Act, 1962, such interrogation should be done in the presence of his learned advocate who could be placed at a visible but beyond hearing distance. After considering the submissions made on behalf of the petitioner as well as the Customs Authorities, we are inclined to allow the prayer made on behalf of the petitioner. Accordingly, we allow the application and direct that the interrogation, if any, of the petitioner under Section 108 of the Customs Act, 1962, in connection with file No. DRI/GRU/INV-02/2010-11, be conducted in the presence of his advocate, who would be entitled to stay at a visible but beyond hearing distance, from the place of interrogation. The application is allowed accordingly.
TIOL Reports : IN a landmark order delivered day before yesterday, the Supreme Court has permitted the presence of an advocate during interrogation under Section 108 of the Customs Act. The Supreme Court directed that the interrogation, if any, of the petitioner under Section 108 of the Customs Act, 1962, in connection with file No. DRI/GRU/INV-02/2010-11, be conducted in the presence of his advocate, who would be entitled to stay at a visible but beyond hearing distance, from the place of interrogation. |
While making the presentation before the Parliamentary Committee on Finance on behalf of TIOL, I had submitted to the Hon'ble MPs;-
Any gazetted officer of the customs office is empowered to summon people to record their evidence and under the laws of India, a statement given before a customs officer is a valid piece of evidence. It is not like a statement given before a police officer which is not evidence. So, this summons and recording of statement power is very often misused. There are lot of allegations of people being summoned and beaten up and statements obtained. The next day they go and retract the statement. They are again called by summons and beaten up till they do not retract the statement. If they retract the statement after a month or two, the courts and higher appellate authorities take a view that 'you did not retract your statement in time; so it is an after-thought, so the statement stands'. And the statement given before a customs officer is a very valid piece of evidence.
The Hon'ble Chairman of the Standing Committee was surprised and he said,
I did not know about this aspect. I am surprised that a person who is recording the evidence is also, in a way, the prosecutor. In case of Police, they are not allowed to record the evidence because it is not acceptable in a court of law. The Police have to approach the Magistrate to record the evidence. Why is it that there is no third agency involved in this case? You have talked about the disadvantages of the present system. I am quite surprised as a common citizen that the Custom people have been allowed this authority whereas the Police have not been allowed to do so. Both are trying to prosecute the people whom they consider to be guilty. Let me know the background and whether there is any legal solution for this. Apart from prohibiting a Custom officer from recording the evidence, we should say that such and such person should be present at the time of recording the evidence or something like that. I f you have got any suggestion to ensure that this third degree method is not employed of if it is employed, their evidence is not accepted, please submit. You can send this information after due consideration, in writing.
We also added:
The experience has been that people are beaten up and usually police officers are badly accused of and publicised, as using third degree.
This provision has been made in the law assuming that the customs officers do not have lathis; they are not trained to beat people without the press seeing them. So, they get evidence by questioning or by other means. Third degree was believed to be not employable by the customs officers. But the experience is that in every case where the statement has been obtained,as the only evidence, the statement has always been obtained under duress, threat and pure unadulterated third degree. The courts have come to the rescue of some of these people some times. If the summoned person is a smuggler or he is a fraud or he is an evader, he has to be punished. It is okay. But he has to be punished within the law made by the Hon. Parliament of India. If I believe, somebody has evaded tax, I cannot beat him up; I cannot torture him. There are provisions under the law to bring him to punishment. The evidence has to be gathered by documents.
A leading lawyer recently wrote to us,
As a result of grant of evidentiary value for the statement recorded by the Customs and Excise officers, in any investigation, more emphasis is laid on recording statements, rather than collecting more corroborating evidences. This also leads to cases of extraction of statements under duress, though many such instances go un-complained for fear of consequences. Various degrees and methods of duress are often used by the officers to record confessional statements. It is usual for the investigating officers to recover substantial sums even during investigation, that too even when CENVAT credit was available, the assessees would be forced to pay in cash, which by itself would prove the existence of coercion and duress.
It really beats logic as to why any sane person would give a voluntary statement that he has smuggled and evaded.
The Supreme Court order comes in as a whiff of fresh air into the congested corridors of Customs offices. This order may not be universally applicable and maybe meant only for the applicant, but it still opens a new door for the harassed victims of misused power to record statements.
Please see 2010-TIOL-98-SC-CUS
Kind regards,
Rebecca Andrews
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