Page 180 - ELT_1st September 2020_Vol 373_Part 5

618 EXCISE LAW TIMES [ Vol. 373

(d) It is trite in law that when a Statute provides that power
must be exercised in a certain manner, then such power has
to be wielded in the same manner and none other
(e) Section 5(2) of the Customs Act deals with legitimate usurpa-
tion of power for administrative exigencies in a situation
when a subordinate officer is not available, in order that his
absence does not prevent the process from being hampered.
However, once power has been assumed pursuant to Section
5(2), the exercise of such power (by the legitimate usurper)
has to follow the statutory provisions, which conferred the
power on the subordinate in the first place (i.e. Section 108 in
the present case), whose power is being legitimately
usurped. Further, in any event Section 5(2) is specifically re-
stricted to powers and duties which have been conferred or
imposed on an officer and cannot be adopted in case of Sec-
tion 108. This is for the reason that Section 108 of the Cus-
toms Act does not confer power on any particular officer (as
can be found in other provisions of the Customs Act viz. Sec-
tion 17(2) which confers power on a “proper officer”, Section
22(1) which confers power on a Deputy Commission-
er/Assistant Commissioner). Contra to these examples, Sec-
tion 108 does not confer power to any one given officer, in-
stead it confers power only to such person, who satisfies
qualitative ingredients such as that officer is one that is Ga-
zetted, he must consider it necessary to call a person before
him, in relation to an inquiry that he is carrying out. There-
fore, Section 5(2) power could not have been mechanically
applied in the present case, without satisfying these vital
preconditions of Section 108.
It is also well settled that a mechanical approach cannot be followed
while issuing summons as has been done in the present case. Section 108
being a provision which restricts the liberty of a person under investiga-
tion, must be followed in strict compliance and not in a mechanical man-
ner. Further, Section 108(4) clearly mandates that proceedings under this
Section are judicial in nature and therefore no question arises of issuance
of summons as an administrative act thereby obviating the need to com-
ply with the strict drill of Section 108. In any case it is as established
principle of law that issuance of summons is a quasi-judicial act by itself
and therefore, it would be wholly erroneous to contend that the entire
process of summoning is a mere administrative act. It is also an estab-
lished principle of law that in matters and proceedings that are quasi-
judicial in nature, subordinate authority cannot act as per dictation of
their superiors, unlike what has been sought to be done illegally in the
present case.
Mr. Ghosh while arguing his second question submits that customs
must “cease and desist” from making any parallel enquiry once they
have filed the information/complaint on 22nd March, 2019 and after the
police has acted upon the same by taking magisterial approval under
Section 155(3) Code of Criminal Procedure, 1973. The Customs cannot
investigate any further for the reasons that, after having formed their
EXCISE LAW TIMES  1st September 2020  180