Page 177 - ELT_1st September 2020_Vol 373_Part 5

2020 ] MENKA GAMBHIR v. UNION OF INDIA 615

been interrupted at the Airport cannot much be justified. In other words, there
being reasonable grounds for thinking that issuance of summons are necessary,
the justification and adequacy of the same cannot be made subject of judicial re-
view. Section 5(2) of the Customs Act, 1962 has to be read with Section 108 and
any Gazetted Officer could resume the inquiry conducted by a subordinate of-
ficer of customs and issue summons to any person, he considers necessary. Simi-
lar exercise of power has been approved by the Hon’ble Supreme Court in R.P.
Kapur and Others v. Sardar Pratap Singh Kairon and Others - (1961) 2 SCR 143. The
power under Section 5(2) is not in anyway curtailed by Section 108 of the Cus-
toms Act, 1962 as a superior officer of the Customs can exercise the powers and
discharge the duties of his subordinate customs officers. The said superior officer
could as well issue summons under Section 108 of the Customs Act, 1962 on his
own and it becomes immaterial and irrelevant that he does it at the instance or
on the direction of another superior officer. The exercise of powers by a superior
officer by virtue of Section 5(2) of the Customs Act, 1962 could have been faulted
only by the proof of mala fides. The facts however show that the factum of ob-
struction and consequent intimidation of junior customs officers was being
brought to the notice of the Commissioner of Customs and he directed the Joint
Commissioner of Customs. In other words, the superior officer assumed respon-
sibility of the case for a justifiable cause as the subordinate officers were being
suborned and intimidated and the circumstances of the case warranted that fur-
ther action may be taken under the Customs Act for which the senior officers
took charge. It is in situations like these that Section 5(2) of the Customs Act, 1962
must apply. In any event, mandamus is not a writ of right and before granting the
writ, the Courts should see the larger public interest and also give due regard to
the consequences which the issue of the writ will result in.
Mr. Lekhi further submits that involvement of the Police in the instant
case infringes the principle of cooperative federalism and issuing a writ in the
facts of this case will not only injure the purpose of governance but entail judicial
endorsement of provincial behaviour working at cross purposes with the Na-
tional Government instead of being complimentary part of a single governmental
mechanism which the co-existence of the Customs Act (Central Enactment) and
policing (in the realm of State Government) entail. Moreover, law takes no notice
of ranks and status and mere proximity with those in position of authority can-
not vests privileges unavailable to the ordinary men and women of this country
far less being approved by a judicial order. Reliance has been placed on State
(NCT of Delhi) v. Union of India and Another - (2018) 8 SCC 501 at Pg. 592.
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 subse-
quent 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 sum-
mons 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 ancil-
lary 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 un-
der 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
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