Kerala High Court
Muhammed Asif K.A vs Sreejith M on 9 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
Con.Case(C).No.209 OF 2021 IN WP(C). 10771/2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 10771/2020(V) OF HIGH COURT OF
KERALA
PETITIONERS/PETITIONERS:
1 MUHAMMED ASIF K.A.,
AGED 30 YEARS,
S/O. ABBAS K.A., R/O KAROTHUKUDY HOUSE, KANDANTHARA,
ALLAPRA P.O., PERUMBAVOOR, ERNAKULAM, KERALA-683 553
2 MUHAMMED FASIL V.A.,
AGED 25 YEARS,
S/O. ABOOBACKER V.A., R/O VELLEMVELI HOUSE,
RAYONPURAM, P.O. SOUTH VALLAM, PERUMBAVOOR,
KERALA-683 553.
BY ADV. SRI.P.A.AUGUSTIAN
RESPONDENTS/RESPONDENTS:
1 SREEJITH M.,
AGED 34 YEARS,
S/O. P.ACHUTHAN UNNI, DEPUTY DIRECTOR,
DIRECTORATE OF REVENUE INTELLIGENCE,
VILAKUNNEL HOUSE, DOOR NO.40/552, KAITHOTH ROAD,
PALARIVATTOM, COCHIN-682 025.
2 SHREENI B PILLAI,
SENIOR INTELLIGENCE OFFICER,
DIRECTORATE OF REVENUE INTELLIGENCE,
MUMBAI ZONAL UNIT, 4TH FLOOR, 13, SIR VITHALDAS
THACKERAY MARG, NEW MARINE LINES, MUMBAI 4000 020
(AGE AND FATHERS NAME NOT KNOWN TO THE PETITIONER).
R1-2 BY SHRI.S.MANU, CGC, DIRECTORATE OF REVENUE
INTELLIGENCE KERALA REGIONAL UNIT
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD
ON 03-03-2021, THE COURT ON 09-04-2021 DELIVERED THE FOLLOWING:
Con.Case(C).No.209 OF 2021 -2-
JUDGMENT
Dated this the 9th day of April 2021
This Court vide judgment dated 22.06.2020
considering the prayers made therein, disposed of the writ
petition by passing the following:
"Petitioners two in number being the residents of
Kerala through instant writ petition sought the indulgence
of this Court with the following prayers:
(a) To issue a writ of mandamus or any other
appropriate writ order or direction, directing the
Respondent no. 1 to permit the petitioners to forthwith
record their statements under Section 108 of the
Customs Act, 1962 by video conferencing in
investigations under Customs Act, 1962 in File
No.DRI/MZU/E/INT-65/2019, by temporarily waiving
their physical presence, till further rise in Covid-19
cases comes to a halt;
(b) At the interim / ad-interim stage, pending final
disposal of the instant writ petition, the Respondent no.
1 may please be directed to permit the petitioners to
forthwith record their statements under Section 108 of
the Customs Act, 1962 by video conferencing in
investigations under Customs Act, 1962 in File No.
DRI/MZU/E/INT-65/2019, by temporarily waiving their
physical presence:
(c) Any other further directions as may deem just, fit
and expedient may also please be passed.
(d) Grant such other relieve that this Hon'ble Court
may deem fit and proper in the facts and circumstances
of the case.
2. During the course of the hearing of the writ
petition on the last date it is brought that the W.P.
(Crl).No.883202 of 2020 and Crl.Mc.Appln.7327 of 2020
had been filed in the High Court of Delhi for seeking a
permission for detention in Kerala. Sri.Ashish Batra,
learned counsel appearing on behalf of the petitioners
informs the Court that as an interim measure vide order
dated 16.06.2020 Hon'ble Delhi High Court has permitted
the petitioners to surrender before the Deputy General of
Police, Government of Kerala, Thiruvananthapuram and
have surrendered also.
3. Sri.S.Manu, learned counsel appearing on behalf
of Directorate of Revenue Intelligence (DRI) Officer does
not dispute the factum of the order as well as the
surrender. He submits that the petitioners have been put
into quarantine in Thiruvananthapuram jail and after the
period of quarantine the statements would be recorded by
DRI officials from Mumbai, thus no cause of action
survives.
4. At this stage Sri.Ashish Batra, learned counsel
appearing on behalf of the petitioners confines the prayer
that the respondents may be directed to expedite the
recording of the statement and issuance of show cause
notices.
5. Having heard learned counsel for the parties
and appraised the paper book, I am of the view that
prayer sought in the writ petition in general no longer
subsists. In view of interim order dated 16.06.2020 of
the Hon'ble High Court of Delhi Petitioners are in
detention in Thiruvananthapuram Jail. After the period of
quarantine the respondents are directed to expedite the
recording of the statement under Section 108 and issue
regarding show cause notice under Section 124 of the
Customs Act be expedited.
The writ petition with aforementioned observation
stands disposed of."
2. I.A.No.1/2020 has been filed seeking clarification
of the order to the limited extent that the direction given
by this Court for expeditious issuance of show cause
notices under Section 124 of the Customs Act construed as
the issuance of show cause notice immediately in view of
the fact that almost six months have passed since passing
of the judgment dated 22.06.2020 and till date, no show
cause notices have been issued. The aforementioned
application is dated 17.12.2020.
3. However the contempt petition bearing
No.209/2021 dated 19.01.2021 has been filed on the
premise that the respondents did not issue the show cause
notices after a lapse of considerable time and failed to
comply with the judgment. In response to the notice
issued in the contempt case and the application,
respondents have filed a reply raising the following
objection:
(1) that there was no such direction for expediting
the issuance of the show cause notices and in view of
the judgment rendered by the Hon'ble Supreme
Court in Union of India and Others v. Oswal
Woollen Mills Ltd. and Others (AIR 1984 SC
1264) when no time limit is fixed for compliance of
the directions, there will not be any contempt.
(2) Efforts were made to record the statements of
the petitioners and to finalise the proceedings
expeditiously as directed by the Court. Petitioners in
view of the order passed by the Delhi High Court
surrendered themselves before the police Authorities
of Kerala. Considering the aforementioned facts this
Court disposed of the writ petition.
(3) Efforts were being made to conclude the
investigation by recording the statements of the
petitioners while undergoing detention in the Central
Prison, Thiruvananthapuram on 23.07.2020.
Petitioners remained non co-operative during the
course of interrogation in the jail premises. They
could not be confronted with various documentary
and digital evidences inside the jail premises in
siphoning off the smuggled gold. It was felt that the
petitioners be summoned and questioned
independently to complete the investigation.
(4) Show cause notices dated 17.12.2020,
31.12.2020 and 14.01.2021 were issued. Petitioners
neither appeared before the DRI nor replied to the
aforementioned summons and have only stated about
the summon dated 31.12.2020.
(5) Show cause notices were issued to several
persons including the petitioners on 24.09.2019
followed by a supplementary notice dated
24.02.2020. But the issuance of the show cause
notice in respect to the illegal acts committed by the
petitioners under investigation as of now is required.
4. Respondents have made every possible efforts to
complete the investigation expeditiously and finalise the
proceedings. Officers of the Directorate cannot be
injuncted from arresting the respondents at the time and
the place for carrying out the interrogations fixed by the
High Court in view of the judgment laid down by the
Honourable Supreme Court in Dukhishyam Benupani
Vs. Arun Kumar Bajoria ((1998) 1 SCC 52). No
interference in the freedom of the officer of Customs is
contemplated under Section 108 of the Custom Act.
5. I have heard counsel for the parties and
appraised the paper books and am of the following view:
6. Dukhishyam (supra) was a case pertaining to
cancellation of the pre-arrest bail by the Enforcement
Director whereby the Division Bench of the High Court
issued a uncalled interim direction injuncting arrest of the
respondent fixing the time and place of carrying out the
interrogation. In the instant case from June, 2020 till
November 2020 admittedly the petitioners were available
without armed with any pre-arrest bail order. They were
interrogated by the DRI in custody at the
Thiruvananthapuram Jail on account of surrender in
pursuance of notification dated 2 nd July, 2019 either before
director General of Police, Government of Kerala or the
Commissioner of Police, Government of Maharashtra,
Mumbai. DRI ought to have completed the investigation
by issuing addendum to the show cause notice dated
24.09.2019 for expeditious, penal and confiscated
adjudication proceedings. It is in that background
directions for expediting the show cause notices were
issued by this Court. Since the DRI wants the further
statement of the petitioners being dissatisfied with the
statements recorded while in custody, unless the
addendum to the show cause notice dated 24.09.2019 is
issued before the adjudicating authority showing progress
of further investigation, the penal and confiscated
adjudication would be further delayed, not regarding the
petitioners but other persons also.
7. In Poolpandi and Others Vs. Superintendent,
Central Excise and Others ((1992) 3 SCC 259)
Supreme Court was pleased to reject the argument
recorded in paragraph No.5 thereof claiming the presence
of lawyer for active participation who could advise
potential accused. The answer to the aforementioned
objection has been given in the judgment SIO, DRI Vs.
Jugal Kishore Samra (2007 Crl LJ 2692) wherein
presence of an advocate at a visible but not audible
distance was permitted which would not amount to any
active participation of the advocate.
8. The situation of Corona/COVID-19 for the last
two weeks has increased exponentially, there has been lock
down in Maharashtra, Panjab, Chandigarh and
various other states. Even curfews have been imposed in
Delhi and Chandigarh. Considering the fact that the
petitioners are in Kerala and also for the safety of the DRI
officials, it is directed that petitioners would appear before
the investigating officers on 15.04.2021 from 10 a.m. till
6.p.m. And would be entitled to have an advocate present
at a visible distance beyond audibility during interrogation
and recording of the statement. After recording the
statements and completing the investigation, respondent
DRI may consider it appropriate in issuing addendum to
show cause notice dated 24.09.2019 as expeditiously as
possible preferable within a period of six weeks from
15.04.2021, so that the adjudication proceedings in
respect of all the persons involved can be taken up
expeditiously and till such time, for the safety of the
officers and persons involved, the personal liberty of
petitioners shall not be prejudiced. Needless to say if the
petitioners would fail to appear before the DRI as directed,
DRI shall be at liberty to move this Court for taking strict
action against the petitioners. Ultimately no ground for
contempt is made out.
Application stands disposed of with the above
clarification in the order dated 22.06.2020.
Sd/-
AMIT RAWAL
JUDGE
vv
APPENDIX OF Con.Case(C) 209/2021
PETITIONER'S/S EXHIBITS:
ANNEXURE I CERTIFIED COPY OF THE JUDGMENT DATED
22.6.2020 IN WPC NO.10771 OF 2020.
