Swapna Prabha Suresh v. Superintendent of Customs

_**Crl.MC.4381/2020**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942** **Crl.MC.No.4381 OF 2020(G)** **AGAINST THE ORDER/JUDGMENT IN CA 453/2020 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM** ## **PETITIONER/S:** **SWAPNA PRABHA SURESH AGED 39 YEARS DAUGHTER OF SUKUMARAN SURESH, VAYALIL HOUSE, JAGATHY, THYCAUD P O, THIRUVANANTHAPURAM.** **BY ADVS. SRI.GEO PAUL SRI.C.R.PRAMOD SRI.RADHIKA RAJASEKHARAN P. SHRI.JACOB GEORGE PALLATH SHRI.NAVEEN T.U.** ## **RESPONDENT/S:** **SUPERINTENDENT OF CUSTOMS** **CUSTOMS (PREVENTIVE), COMMISSIONERATE, KOCHI, REPRESENTED BY STANDING COUNSEL, CUSTOMS, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682031.** **R1 BY SRI.SASTHAMANGALAM AJITHKUMAR, PP FOR CUSTOMS,COCHIN COMMISSIONERATE** ## **OTHER PRESENT:** ## **SC FOR CUSTOMS SREELAL WARRIER** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.10.2020 THE COURT ON 02.11.2020 PASSED THE FOLLOWING:** _**Crl.MC.4381/2020**_ 2 ## **V.G.ARUN, J. ----------------------------------------------CRL.M.C.No. 4381 of 2020 ----------------------------------------------Dated this the 2[nd] day of November, 2020** ## **O R D E R** Petitioner is the 3rd accused in O.R.No.7 of 2020, registered by the respondent, alleging commission of the offence under Section 135 of the Customs Act (for short, 'the Act'). She is the 2[nd] accused in O.R.No.2 of 2020, registered by the National Investigation Agency (NIA) also, and was arrested by the NIA and remanded to judicial custody at Bengaluru. After remand, the petitioner was given to the custody of NIA for the purpose of interrogation. While so, the respondent, after obtaining permission from the Special Court for N I A Cases, formally arrested the petitioner and recorded her statement under Section 108 of the Act. Thereafter, at the request of the respondent, petitioner’s custody was given to the Customs for five days. According to the petitioner, during that five day period she was coerced into giving another statement under Section 108 of the Act, copy of which was not given to her, but is being utilised by other investigating agencies like the Enforcement Directorate and the National Investigation Agency while interrogating her. Hence, it became imperative for the petitioner to obtain a copy of those statements and an application under Rule 222 of the Criminal Rules of Practice (for short, 'the Rules') was submitted before the Additional Chief Judicial Magistrate (E.O), for _**Crl.MC.4381/2020**_ 3 obtaining copies of the Section 108 statements of the petitioner and the other accused along with copies of the occurrence report, seizure mahazar etc. By Annexure A1 order, the learned Magistrate directed to issue copies of documents, other than the Section 108 statements. Copies of the Section 108 statements was not issued for the reason that the statements were produced in sealed cover as directed by the Court and the Special Prosecutor had requested to keep them confidential. The interdiction in Section 172(3) Cr.P.C was also cited as a reason to deny the copies. 2. Heard Smt.P.Radhika Rajasekharan, learned counsel for the petitioner and Sri.K.Ramakumar, learned Senior Counsel appearing on behalf of the Customs Department. 3. Referring to Rule 222 of the Rules, learned counsel for the petitioner submitted that copies of documents produced in court or in the custody of the court are bound to be issued, on an application being filed by a party to the proceedings. Assailing the finding based on Section 172(3) Cr.P.C, it is contended that a statement under Section 108 of the Act is distinct and different from a statement under Section 161 Cr.P.C and hence the interdiction in 172(3) of the Code is not applicable. Reliance is placed on the Division Bench decision in _**Kishin S Loungani v. Union of India and Others**_ [2017(1) KHC 355] to buttress the contention. _**Crl.MC.4381/2020**_ 4 4. Per contra, the learned Senior Counsel submitted that even in respect of an accused, who had given a statement under Section 108 of the Act, the interdiction under Section 172(3) Cr.P.C will apply. Attention was drawn to Section 4(2) of the Code and the decision of the Honourable Supreme Court in _**Directorate of Enforcement V.Deepak Mahajan**_ [(1994) 3 SCC 440]. It was contended that in the instant case the Section 108 statements were handed over to the learned Magistrate for perusal and therefore, cannot be termed as documents produced in or in the custody of the court. It was contended that an application under Rule 222 ought to be filed on the administrative side and rejection of such application is not amenable to challenge under Section 482 Cr.P.C. It was also contended that no ground for invoking the inherent jurisdiction under Section 482 is raised in the Crl.M.C. 5. The issue thus arising for consideration is regarding the right of an accused, in a case registered by the Customs, to obtain copies of the Section 108 statements from the jurisdictional court. In order to resolve this issue, the relevant provisions of the Customs Act and the Code of Criminal Procedure are to be looked into. As per Section 104 of the Act, an authorised officer can arrest a person, if he has reason to believe such person of having committed offences punishable under Section 132 or Section 133 or Section 135 or Section 135-A or Section 136 of the Act. The person arrested should be informed of the grounds _**Crl.MC.4381/2020**_ 5 for his arrest and taken to a Magistrate without unnecessary delay. Sub-section (3) of Section 108 stipulates that, where an officer of Customs has arrested any person under sub-section (1), he shall, for the purpose of releasing the arrestee on bail or otherwise, have the same powers as an officer-in-charge of a police station under the Code of Criminal Procedure, 1898 (5 of 1898). 6. Section 108(1) confers Gazetted Officers of the Customs Department with the power to summon any person, whose attendance is considered necessary for giving evidence or to produce documents. Going by Sub-section (3) of Section 108, all persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and shall be bound to state the truth upon any subject, with respect to which they are examined or make statements and produce such documents and other things as may be required. 7. Section 4 of the Cr.P.C provides for trial of offences under the IPC and other laws according to the provisions of the Code. As per Section 4(2), all offences under any other law, shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code, subject to any enactment in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 161, confers officers with the power to orally examine any person acquainted with the facts and circumstances of a criminal case. The person thus examined shall be _**Crl.MC.4381/2020**_ 6 bound to answer truly all questions relating to the case put to him by such officer, other than questions which will have the effect of incriminating him. The statement elicited by the police officer can be reduced to writing and should be made part of the case diary. Section 172 deals with the diary of proceedings in investigation to be maintained by the officer concerned. As per Section 172(2), any criminal court may send for the police diaries of a case under inquiry or trial in such court and may use such diaries, not as evidence in the case but to aid it in such inquiry or trial. Section 172(3) interdict the accused or his agents from calling for such diaries or seeing them merely because they are referred to by the court. This interdiction will not apply if the diary is used by the police officer who made them to refresh his memory or if the court uses them for the purpose of contradicting such police officer. 8. In _**Kishin S Loungini’s case (supra)**_ , the Division Bench analysed the above provisions threadbare and after elaborate consideration of the precedents concluded that a person arrested under Section 104(1) of the Act need not necessarily be an accused, since the terminology used is ‘any person’. It was held that registration of FIR is not necessary before arresting a person under Section 104. That, after Collecting all the materials with respect to the offence, the Customs Officer is not expected to file a final report as provided under Section 173(2) of Cr.P.C, and instead should file a complaint under _**Crl.MC.4381/2020**_ 7 Section 190(1)(a) of Cr.P.C. 9. In _**Deepak Mahajan’s case** (supra)_ **,** the question considered was as to whether, a Magistrate before whom a person arrested under sub-section (1) of Section 35 of the Foreign Exchange Regulation Act of 1973, which is in pari materia with sub-section (1) of Section 104 of the Customs Act of 1962, is produced under sub-section (2) of Section 35 of the Foreign Exchange Regulation Act, has jurisdiction to authorise detention of that person under Section 167(2) of the Code of Criminal Procedure. Answering the question, after careful scrutiny of the relevant provisions, the Apex Court held that operation of Section 4(2) of the Code is straightaway attracted to the area of investigation, inquiry and trial of the offences under the special laws including the FERA and Customs Act and consequently Section 167 of the Code can be made applicable during the investigation or inquiry of an offence under the Special Acts also, inasmuch as there is no specific provision contrary to that, excluding the operation of Section 167. 10. The difference between Section 108 statement under the Act and Section 161 statement under the Code considered by the Apex Court in _**Naresh J. Sukhawani v. Union of India**_ **, [(1995) Supp (4) SCC 663],** and answered in the following manner; _“_ _**4.** It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the_ _**Crl.MC.4381/2020**_ 8 _Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India.”_ 11. On analysis of the provisions and the precedents, I find substance in the contention of the learned Counsel for the petitioner that the interdiction in Section 172(3) Cr.P.C cannot be relied on to deny copies their Section 108 statements to the accused. 12. Even though I find merit in the contention put forth by the learned Senior Counsel that an application under Rule 222 of the Criminal Rules of Practice ought to be filed on the administrative side, the fact that the learned Magistrate entertained the application and directed to issue copies of most of the documents applied for, deter me from dismissing the Crl.M.C on that ground. 13. The only remaining question is whether the court was liable to issue copies of the Section 108 statements on receipt of the application under Rule 222 of the Criminal Rules of Practice. Rule 222 provides for submission of applications for copy of the proceeding or document filed in or in the custody of a court. As far as the instant case is concerned, it is not in dispute that the Section 108 statements were made available for perusal of the court in a sealed cover. The Prosecutor had also requested to keep the statements confidential. _**Crl.MC.4381/2020**_ 9 Therefore, the statements cannot be termed as documents produced in or in the custody of the court, copies of which are liable to be issued under Rule 222. Further, as per Rule 225, copies of correspondence or of proceedings which are confidential or are strictly judicial shall not be granted, except under the orders of the court. Hence, discretion is vested with the court to refuse copies, if the documents or proceedings are confidential or strictly judicial in nature. The learned Magistrate having refused to issue copies of the Section 108 statements finding them to be confidential, I find no reason to interfere with the impugned order. 14. As per the statement filed on behalf of the respondent, copies of relevant papers mandatorily required, including the Section 108 statements was furnished to the petitioner, along with the order made against her under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act 52 of 1974). Being so, the grievance raised in this Crl.MC stands substantially allayed. For the reasons aforementioned, the Crl.M.C is dismissed. **==> picture [467 x 31] intentionally omitted <==** **Sd/-** ## **V.G.ARUN, JUDGE** _vgs_ _**Crl.MC.4381/2020**_ 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**CERTIFIED COPY OF ORDER DATED 17.08.2020 OF**| |---|---| ||**THE HONOURABLE ADDITIONAL CHIEF JUDICIAL**| ||**MAGISTRATE (EO), ERNAKULAM IN CA 453 OF**| ||**2020 IN OR 7 /2020.**| |**ANNEXURE A2**|**TRUE COPY OF THE FIRST PAGE OF STATEMENT**| ||**DATED 22.09.2013 IN OS NO.S 14/07/2013.**| |**ANNEXURE A3**|**TRUE COPY OF THE LAST PAGE OF ANNEXURE A2**| ||**STATEMENT.**| |**ANNEXURE A4**|**TRUE COPY OF THE ENDORSEMENT OF THE**| ||**HONOURABLE ADDITIONAL CHIEF JUDICIAL**| ||**MAGISTRATE COURT (EO), ERNAKULAM, ON**| ||**ANNEXURE A3.**| |**ANNEXURE A5**|**LAST PAGE OF STATEMENT IN OS NO. S 14**| ||**14/07/2013.**| |**ANNEXURE A6**|**THE ENDORSEMENT OF THE ACJM (EO), ERNAKULAM**| ||**IN ANNEXURE A5.**| |**ANNEXURE A7**|**LAST PAGE OF STATEMENT IN OS NO. S**| ||**14/07/2013.**| |**ANNEXURE A8**|**THE ENDORSEMENT OF THE ADDITIONAL CHIEF**| ||**JUDICIAL MAGISTRATE COURT (EO) ERNAKULAM IN**| ||**ANNEXURE A7.**|