Page 183 - ELT_1st September 2020_Vol 373_Part 5

2020 ] MENKA GAMBHIR v. UNION OF INDIA 621

whereas once Section 133 has been involved, penalty provisions con-
tained therein applies on the petitioner and therefore, Section 117 cannot
be applied.
In any event Section 117 is not applicable for the following reasons :
(i) Section 117 deals with contravention of any provision or
failure to comply with any provision. Section 133 is a penal
provision which cannot be contravened. Contravention can
only happen when there is a “duty cast’ or an “obligation”.
However, Section 133 language does not prescribe any such
obligation/duty nor can there be any contravention of the
provision. It is applicable only where no penalty is pre-
scribed in such provision of the Act.
(ii) The authority was never precluded from initially writing
other provisions of law and alleging such contravention by
the petitioner. However, no such allegation of Section 117 ex-
ists. The summons issued under Section 108 for an offence
under Section 133, cannot be expanded for making roving
enquiry. Roving enquiries in case of summons etc. are im-
permissible in law.
In order to bolster their case that the summons issued pertained to
imposition of penalty under Section 117 of the Act, Customs has errone-
ously relied on Section 26 of the General Clauses Act. Section 26 of Gen-
eral Clauses Act states that when the act constitutes an offence under
two or more enactments then it can be proceeded with simultaneously.
However, Sections 117 and 133 are of the same Act and therefore such
argument hold no water. Similarly, the customs have erroneously relied
on Section 4(2) of the Cr.P.C. for the above purposes. Admittedly the
said provision of the Cr.P.C. provides that provisions of the special law
would apply. However, on application of the special law (i.e. the Cus-
toms Act), the customs would be forced to revert back to the Magistrate
by virtue of operation of Section 137 and Section 138 of the said Special
Law quo violation of Section 133 and cannot carry on parallel investiga-
tion once Magisterial intervention has been sought in accordance with
the said Sections 137 and 138 of the Customs Act.
Mr. Ghosh Ld. Counsel further submits that Article 20(3) of the
Constitution clearly provides that no person accused of any offence shall
be compelled to be a witness against himself. Accordingly, by requiring
the petitioner to appear before the summoning authority, this vital pro-
vision of the Constitution would be violated and therefore such an in-
fraction of the Constitutional guarantee cannot be permitted. No sooner
than the information was filed by the Customs before the Police, in
which allegations and accusations were made against the petition with
regard to violation of Section 133 of the Customs Act and other provi-
sions of the IPC, the petitioner had become an accused. Once the peti-
tioner became an accused, thereafter, the Customs Authority cannot di-
rect the petitioner to appear before them in respect of the same allegation
(i.e. violation of Section 133 of the Customs Act). The protection available
under Article 20(3) of the Constitution of India to not give evidence

EXCISE LAW TIMES  1st September 2020  183