Page 176 - ELT_1st September 2020_Vol 373_Part 5

614 EXCISE LAW TIMES [ Vol. 373

the authority to investigate offences under the Act. However, in the in-
stant case they have already investigated and thereafter have abdicated
their right to further investigate and complain to the magistrate in favour
of the police. In any event, as mentioned above, the Customs Act (special
law) provides that the adjudication of the offence will be in accordance
with the Cr.P.C. After the filing of the police information/complaint the
petitioner has become an “accused” and is granted protection of Article
20(3) of the Constitution of India to not give evidence against herself.
This protection is available to the petitioner since a formal accusation re-
lating to the commission of an offence has been levelled which in the
normal course may result in prosecution.
The petitioner has a duty under Section 108 of the Act to speak the
truth. Any evidence provided by the petitioner is admissible as evidence
in Court. Customs will compel evidence, which will be used to incrimi-
nate the petitioner before the pending complaint with police. It would be
a situation where the accuser compels the accused to provide testimony
that shall be used against the accused.
Learned Senior Counsel concludes by submitting that the applica-
bility of Sections 127 and 122 of the Customs Act, which are under Chap-
ter XIV of the Act and deals with “Confiscation of Goods and Convey-
ances and Imposition of Penalties”. It is an admitted fact that no contra-
band was found and no goods which were improperly imported were
confiscated. Thus, these sections do not apply and the arguments of the
customs regarding summons being “in connection with” cannot be sus-
tained. The entire case of the Customs is contravention of Section 133 of
the Customs Act and the use of the term “in connection with” cannot be
used to improve upon the case initially made out. The police infor-
mation/complaint and the internal documents of the customs also une-
quivocally state the same.
7. Mr. Aman Lekhi, Ld. Additional Solicitor General, appearing for the
Customs Department submits that the present writ petition could not have been
filed without responding to the summons and urging the very points raised in
the writ petition before the authorities issuing the summons. This is particularly
so because no case has been made out to show that the summons dated 26th
March, 2019 are non est in law or wholly without jurisdiction. In any event, a writ
of Mandamus and a consequential relief of Certiorari and Prohibition will lie only
to enforce an established right and not to establish the right. There being two
contested and irreconcilable version of an event (as apparent in the information
to the Police given both by the petitioner and respondent herein). The very inde-
terminate nature of the case shows that even for this reason, the proceedings be-
fore Hon’ble Court are wholly premature and are quite clearly an attempt to pre-
empt the outcome of one case and/or foreclose the other.
According to the Ld. Additional Solicitor General, issuance of summons
is purely an administrative act and is neither quasi legislative nor quasi-judicial.
The summons, by themselves even while “affecting” the person summoned do
not “decide” any issue and are merely investigatory in nature to take another
administrative action. The satisfaction is subjective as long as there are prima facie
grounds satisfying the need to issue summons. The involvement of senior cus-
tom officers in the process of invocation of Section 108 of the Customs Act, 1962
to assume in themselves the jurisdiction and proceeded to complete what had

EXCISE LAW TIMES  1st September 2020  176