Madras High Court
P.Murali vs The Senior Intelligence Officer on 4 March, 2021
WP.No.15190 of 2020 and batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 04.03.2021
CORAM:
THE HON'BLE Dr.JUSTICE ANITA SUMANTH
W.P. Nos.15190, 15196, 15198, 15058,
15192, 15193 & 17166 of 2020
and
WMP. Nos.19001, 18987, 18988, 19013, 21214,
21217, 19005, 18989, 21221, 18770, 18767,
18769, 19012, 18995, 18996, 18998,
18999, 19006 & 19007 of 2020
W.P. No.15190 of 2020
P.Murali ... Petitioner
Vs.
1.The Senior Intelligence Officer,
Directorate of Revenue Intelligence,
Chennai Zonal Unit,
Lakshmi Colony, T.Nagar,
Chennai – 600 017.
2.The Senior Intelligence Officer,
Directorate of Revenue Intelligence,
Kolkatta Zonal Unit,
No.8, Hochi Min Sarani,
Kolkatta – 700 071. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a writ of Certiorari, to call for the entire records relating to the
Impugned Summons dated 01.10.2020 in DRI/KZU/AS/Enq-13/2020/3107 in
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WP.No.15190 of 2020 and batch
CBIC-DIN-202010DDZ600009BA96D, issued by the 2nd respondent to the
petitioner and quash the same.
For Petitioners : Mr.Muralikumaran
For M/s.MCGan Law Firm in
W.P. Nos.15190, 15196, 15198,
15192 & 15193 of 2020
Mrs.Radha Gopaalan for
Ms.G.P.Bhargavi
in W.P. No.15058 of 2020
Mr.T.Mohan for
Mr.N.Balaji in W.P. No.17166 of 2020
For Respondents : Mr.V.Sundareswaran,
Senior Panel Counsel in the above WPs
COMMON ORDER
This batch of 7 Writ Petitions is disposed by means of this common
order, as the underlying factual position is one and the same. The challenge is
to summons dated 01.10.2020 (in WP.Nos.15190, 15192, 15196, 15193 &
15198 of 2020), 15.09.2020 (in WP.No.17166 of 2020) and 21.09.2020 (in
WP.No.15058 of 2020) issued under Section 108 of the Customs Act, 1962 (in
short ‘Act’).
2. W.P.No.17166 of 2020 has been filed by one Mukesh Kumar Sharma,
who claims to be a freelance accountant carrying out accounting assignments
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WP.No.15190 of 2020 and batch
for several entities including Mundhra Bullion Private Limited, Olympia Impex
Private Limited (in short ‘Olympia’) and other entities.
3. W.P.No.15058 of 2020 has been filed by Madhavi Mundhra, wife of
Ashish Mundhra, who runs Mundhra Bullion Private Limited and Mundhra
Jewellers Private Limited (in short ‘Mundhra’). She is a Director in both
companies.
4. W.P.Nos.15190, 15192, 15193, 15196 and 15198 of 2020 have been
filed by employees of Mundhra (drivers and shop assistants, in short
‘employees’).
5. The genesis of the proceedings is the seizure of 15 kgs of gold booked
by Sequel Logistics (consignor) to Olympia (consignee) by the customs
authorities at the Kolkatta Airport. Olympia as well as Mundhra are located in
Chennai. As a consequence, searches were initiated by the first respondent/the
Senior Intelligence Officer in the offices of Olympia and Mundhra as well as
other locations. I desist from stating the facts any further for two reasons, one,
what is impugned before me is the summons and I am only to test the validity
or otherwise of the same, and secondly, proceedings for investigation and
enquiry are on-going and I would rather not hamper the same by any
observations touching upon the merits.
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WP.No.15190 of 2020 and batch
6. According to the employees, they have already been issued summons
by the authorities of the Directorate of Revenue Intelligence (DRI), Chennai
and statements have been recorded from them. They deny their involvement in
any illegal activities and would plead that they are only employees working for
monthly salary and thus unconnected with any alleged illegal transactions
engaged in by their employers or other third parties. The legal case put forth by
them is that once proceedings have been initiated by DRI in Chennai and
statements recorded, the DRI in Kolkatta cannot re-initiate or continue the
proceedings. The statements recorded by the DRI have, in fact, been retracted
by them.
7.The impugned summons does not give any inkling as to any adverse
material that has been found linking them to the offending proceedings. The
provisions of Section 108 vest authority in the officials to issue summons only
for the purpose of giving evidence or production of documents or other items
in their possession or control. As regards this, the impugned summons says
‘NA’ to both parameters and hence there could be no other valid purpose for
which they would be summoned, except to harass them.
8. The decisions relied upon by Mr.Muralikumaran, learned counsel for
the employees, are as follows:
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WP.No.15190 of 2020 and batch
1. Dukhishyam Benupani Vs. Arun Kumar Bajoria [(1988) 1 SCC 52]
2. K.K.Velusamy Vs. N.Palanisamy [(2011) 11 SCC 275]
3. State (NCT of Delhi) Vs Shiv Kumar Yadav [(2016) 2 SCC 402]
4. Gayathri Vs. M.Girish [(2016) 14 SCC 142]
5. Anil Rai Vs State of Bihar [(2001) 7 SCC 318]
6. Pandit M.S.M.Sharma Vs. Dr.Shree Krishna Sinha [AIR 1960 SC
1186]
7. The Prosecutor Vs Callixte NZABONIMANA [2011 SCC Online ICTR
222]
8. Rajnish Kumar Tuli Vs Union of India [2008 SCC Online P & H
2151]
9. According to Mr.Muralikumaran, these petitioners are only witnesses
and not accused. He relies upon show cause notice dated 28.01.2021 that has
been issued to the Accountant, a copy of which has been filed in these Writ
Petitions, wherein the employees are not arrayed as accused. Thus, even
according to the Department, they have no nexus with the transactions in
question and the impugned summons should be quashed. He would also argue
that once examined, there could be no further requirement to re-examine them
and the only reason why the authorities in Kolkata have issued the summons is
the authorities in Chennai had failed in their attempt to elicit anything
incriminating from the petitioners.
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WP.No.15190 of 2020 and batch
10. Mr.Mohan, learned counsel appearing for Mr.Balaji, learned counsel
for the Accountant would continue the line of argument of Mr.Muralikumaran
to the effect that the impugned summons are only an exercise in harassment.
He points out that the Directors of Mundhra have filed complaints before the
police authorities and a charge-sheet has been filed. It is solely for this purpose
that summons has been issued to the petitioners who are based in Chennai
asking them to appear before the authorities in Kolkata.
11. In one voice, these petitioners would state that while they have no
intention of disrespecting the statutory summons issued, proceedings must be
initiated only by the authorities in Chennai and they should not be made to
travel to Kolkatta at their cost. They would also offer that the proceedings
should be conducted over video conference with the authorities in Chennai in
attendance to ensure that proper decorum is maintained and the proceedings are
conducted strictly in line with all legal prescriptions.
12. The case of the Director stands on a slightly different footing, though
the request made by her is the same, i.e., that the enquiry in her case should be
conducted from Chennai and she should not be asked to travel to Kolkata.
Mrs.Radha Gopalan, learned counsel for Ms.G.P.Bhargavi, learned counsel for
the petitioner, would urge a humanitarian approach rather than a legalistic one.
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WP.No.15190 of 2020 and batch
She places on record a medical report of the petitioner dated 12.06.2020 (page
5 of the typed set of papers dated 07.10.2020) to the effect that she had tested
positive for COVID and is recovering from the after-effects presently. On
affidavit, she also states that she has absolutely no involvement whatsoever in
the business activity of Mundhra and is in employment with a private hospital
drawing a monthly salary. Though the affidavit is silent with regard to any
medical disability, Mrs.Gopalan would submit in the course of oral argument
that the Director is unwell, suffering various complications from COVID and
should be permitted to attend the proceedings from Chennai or be enquired
from Chennai.
13. In the last matter as above, i.e., W.P.No.15058 of 2020, no objection
is expressed by Mr.Sundareswaran, learned Senior Panel Counsel for the
respondents, to the relief sought by the petitioner. Thus, the impugned
summons in W.P.No.15058 of 2020 is set aside. Let summons be issued afresh
by the authorities in Chennai in regard to the petitioner in W.P.No.15058 of
2020. The petitioner shall co-operate in the conduct of the proceedings and
appear as and when summoned by the authorities in Chennai. W.P.No.15058 of
2020 is allowed. No costs. Connected Miscellaneous Petitions are closed.
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WP.No.15190 of 2020 and batch
14. As regards the other Writ Petitions, the defence of
Mr.Sundareswaran, is that the Writ Petitions are pre-mature and also not
maintainable, seeing as they challenge only a summons for the conduct of
investigation. The factual assertions of the petitioners have been denied in
Counter. However, I refrain from going into the facts of the matter, since
investigation in these cases is on-going. The following judgments are relied
upon by him:
i) Commissioner of Customs V. M.M.Exports (Civil Appeal
Nos.82-83 of 2002 along with C.A.No.81 of 2002 dated
01.03.2007 (Supreme Court))
ii) Sakthi Printeck V. Deputy Director, DRI, Chennai
(W.P.Nos.30066 and 30094 of 2017 dated 07.12.2017
(Madras High Court))
iii) Bheena Pharma Japadar V. Union of India (W.P.Nos.15974
and 15975 of 1991 dated 06.12.1991 (Madras High Court)).
15. I had at the initial hearing of these matters, after hearing learned
counsel for both parties, passed an order directing the conduct of proceedings
by way of video conference. This was in the thick of the COVID -19 pandemic
and a consent order was passed in the presence of Mr.Sundareswaran.
16. Having accepted this order, the respondents have not proceeded to
conduct the proceedings over video conference. Neither has an application
been filed before me seeking modification of the order. Instead,
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WP.No.15190 of 2020 and batch
Mr.Sundareswaran relies now upon decisions to the effect that video
conference is not a proper medium for the conduct of investigation, Delhi High
Court in P.V.Rao Vs. Senior Intelligence Officer [2020 –TIOL-1984-HC-DEL-
GST] and Shri Amit Gupta & Another Vs DGGI [2021-TIOL-398-HC-DEL-
GST] and Punjab and Haryana High Court in Lawrence Bishnoi Vs. State of
Haryana & Others [CRWP-6427-2020].
17. These cases are distinguished by the learned counsel for the
petitioners who state that the facts in those cases are entirely different. The
Courts in those cases, were concerned with habitual offenders, whereas in the
present case, the petitioners are a freelance Accountant and employees of the
firm under investigation. In my view, there can be no hard and fast rule in this
regard and one must pay heed to the relevant circumstances at play, on a case
on case basis.
18. On the challenge to the summon itself in MM Exports (supra), the
Supreme Court considered a challenge to a show cause notice commencing
proceedings for adjudication under Section 28 of the Act. The Bench is
categoric that, as far as possible, the High Court should not interfere in a
summons issued, except in exceptional cases. In my considered view, the facts
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WP.No.15190 of 2020 and batch
as noticed above do not bring these cases within the ambit of ‘exceptional
circumstances’.
19. The submissions to the effect that once proceedings have been
initiated by one authority, they should be continued in the same location and
that there could be no recall of a witness do not impress. The role of the
petitioners in the transaction is yet to be determined and it would inappropriate
for this Court to intervene at this stage. I thus dismiss W.P.Nos.15190, 15192,
15193, 15196, 15198 and 17166 of 2020 and reject the challenge to the
summons.
20. The petitioners pray, at this juncture that the investigation be
recorded by way of videography in the light of their apprehension of high
handedness and arbitrariness by the respondents. The petitioner in W.P.17166
of 2020 specifically points out that the Directors of the companies have
initiated police complaints leading to the filing of a charge-sheet.
21. The Supreme Court in the case of D.K.Basu Vs. State of West Bengal
((1997) 1 SCC 416), in the context of police excesses, articulates the
importance of videography during enquiry. In Senior Intelligence Officer, DRI
Vs. Jugal Kishore Samra (2011 12 SCC 362), the Supreme Court permits both
videography as well as the conduct of interrogation in the presence of the
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WP.No.15190 of 2020 and batch
advocate of the person being interrogated, though setting out of his earshot,
stating thus:
29.Taking a cue, therefore, from the direction made in DK Basu
and having regard to the special facts and circumstances of the case, we
deem it appropriate to direct that the interrogation of the respondent may
be held within the sight of his advocate or any other person duly
authorized by him. The advocate or the person authorized by the
respondent may watch the proceedings from a distance or from beyond a
glass partition but he will not be within the hearing distance and it will
not be open to the respondent to have consultations with him in course of
the interrogation.
So too in Vijay Sajnani Vs. Union of India and another, Jignesh Kishorebhai
Bhajiawala Vs. State of Gujarat (Crl. Misc. A.(Direction) No.289 of 2017
dated 11.01.2017), Krupa Mukund Panchal Vs. Union of India (2019 SCC
online Bom.2593), B.Narayanaswamy Vs. Deputy Director & others (2019
SCC Online Mad 32868), Arvindkumar Jain Dhakad Vs. Union of India
(W.P.No.2700 of 2019 dated 01.07.2019), Agarwal Foundaries Private
Limited Vs. Union of India and others (2020 SCC Online TS 1446), Rajinder
Arora and Others Vs. Union of India and other [W.P.(Civil) No. 389 of 2010
dated 07.12.2010), Mahender Kumar Kundia vs. Union of India (319 ELT 9).
22. In a batch of cases decided on 03.04.2018, Shafhi Mohammad Vs.
The State of Himachal Pradesh and batch, (2018 5 SCC 311), the importance
of capturing of evidence by videography was emphasized by the Supreme
Court, that issued a series of directions to the Director, Ministry of Home
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WP.No.15190 of 2020 and batch
Affairs to set up a Central Oversight Body (COB) with all necessary funds and
resources at its disposal for use of videography in a phased manner. The official
funding was to be by the Central Government.
23. It was the submission of the Additional Solicitor General therein that
the process of videography will help investigation and body-worn cameras will
act as deterrent against anti-social behaviour and act as a tool for the collection
of evidence. There is no doubt that the use of videography will advance the
interests of justice and the concerned investigation agency, by providing for
videography and closed circuit T.V. (CCTV) will enhance their methods of
investigation, interrogation and enquiry to levels of sophistication that are
expected to take such procedures out of the realm of challenges by assessees or
persons under interrogation.
24. A Committee of experts appears to have been constituted to prepare a
road map and standard operating procedure, and the response of various States
have been sought. Central investigation agencies are also said to have
supported this concept. After taking into account all these aspects, the Bench
records that a centrally driven plan of action is the right approach and the plan
of action should be implemented in a phased manner with a milestone based
review mechanism.
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WP.No.15190 of 2020 and batch
25. A group of experts was to be construed comprising of:
(i) One head of Central Investigation Agencies (CBI, NIA, NCB) as
Chairperson;
(ii) One head of State Police;
(iii) One head of CFSL or Senior Forensic Scientist with expertise in the area;
(iv) A Senior Legal Professional (LA of CBI or NIA or comparable from
Ministry of Law); and
(v) A senior representative from MHA as members.
26. At para 13 reference is made to the judgment of the Supreme Court in
D.K.Basu (supra) wherein the earlier directions that CCTV cameras be installed
in all police station and prisons was made. In addition, an oversight mechanism
was also directed to be created where an independent committee would study
the footage from CCTV cameras and periodically publish reports of its
observations. The matter was directed to be listed for periodic monitoring by
the Supreme Court.
27. In a recent judgment, in the case of Paramvir Singh Saini Vs. Baljit
Singh and Others in S.L.P.(Criminal)No.3543 of 2020 dated 02.12.2020, a
three Judge Bench of the Supreme Court, at para 2 refer to their earlier
judgment in the case of Shafhi Mohammad, noting at para 7, that compliance
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WP.No.15190 of 2020 and batch
affidavits in regard to the action taken by 14 States and 2 Union Territories
were filed. Tamil Nadu and West Bengal are on the list.
28. At page 8, the Supreme Court laments that the majority of the
affidavits reports failed to disclose the exact positioning of the CCTV cameras
and are bereft of details with regard to the total number of CCTV cameras, their
working condition, whether they have recording facilities and for how many
days/weeks the data will be stored. From paragraph 9 to 12 the Court records
the progress required and sets out milestones to be achieved in the coming
months. At para 17, it is highlighted that the CCTV system must be equipped
with night vision and must consist of audio and video footage. The recording
equipment used must, they say, allow for maximum storage, in any event not
below one year and optimally 18 months.
29.The Union of India has been directed to file an affidavit to update the
Supreme Court on the constitution and workings of the COB giving full
particulars thereof. Para 19 names the Department of Revenue Intelligence
specifically, as one of the bodies where the installation of CCTV cameras and
recordings equipment is mandatory. I extract paras 19, 20 and 21 hereunder:
19. The Union of India is also to file an affidavit in which it will update his
Court on the constitution and workings of the Central Oversight Body,giving
full particulars thereof. In addition, the Union of India is also directed to
install CCTV cameras and recording equipment in the offices of:
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WP.No.15190 of 2020 and batch
(i) Central Bureau of Investigation (CBI)
(ii) National Investigation Agency (NIA)
(iii) Enforcement Directorate (ED)
(iv) Narcotics Control Bureau (NCB)
(v) Department of Revenue Intelligence (DRI)
(vi) Serious Fraud Investigation Office (SFIO)
(vii) Any other agency which carries out interrogations and has the power of
arrest.
As most of these agencies carry out interrogation in their office(s), CCTVs
shall be compulsorily installed in all offices where such interrogation and
holding of accused takes place in the same manner as it would in a police
station.
The COB shall perform the same function as the SLOC for the offices of
investigative/enforcement agencies mentioned above both in Delhi and outside
Delhi wherever they be located.
20. The SLOC and the COB (where applicable) shall give directions to
all Police Stations, investigative/enforcement agencies to prominently display
at the entrance and inside the police stations/offices of
investigative/enforcement agencies about the coverage of the concerned
premises by CCTV. This shall be done by large posters in English, Hindi and
vernacular language. In addition to the above, it shall be clearly mentioned
therein that a person has a right to complain about human rights violations to
the National/State Human Rights Commission, Human Rights Court or the
Superintendent of Police or any other authority empowered to take cognizance
of an offence. It shall further mention that CCTV footage is preserved for a
certain minimum time period, which shall not be less than six months, and the
victim has a right to have the same secured in the event of violation of his
human rights.
21. Since these directions are in furtherance of the fundamental rights
of each citizen of India guaranteed under Article 21 of the Constitution of
India, and since nothing substantial has been done in this regard for a period
of over 2½ years since our first Order dated 03.04.2018, the
Executive/Administrative/police authorities are to implement this Order both
in letter and in spirit as soon as possible. Affidavits will be filed by the
Principal Secretary/Cabinet Secretary/Home Secretary of each State/ Union
Territory giving this Court a firm action plan with exact timelines for
compliance with today’s Order. This is to be done within a period of six weeks
from today.
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30. Thus the need for comprehensive videography, and the installation of
CCTV cameras in all investigating agencies has been recognised and directions
issued as early as in 2018. This appears to be a work in progress. Meanwhile
Courts continue to be flooded with writ petitions of the present nature putting
forth allegations and apprehensions of abuse and torture, both perceived and
justified. This would be obviated had a mechanism been put in place to ensure
recording of the investigation. Such a process would seek to serve the interests
of not only the person under investigation, but also the investigating agency.
31. In the absence of any instructions that are reported regarding the
status of CCTV cameras in the DRI offices at Kolkata, I direct that the process
of investigation of the petitioners before me be videographed and the data
stored till completion of the proceedings.
04.03.2021
Sl/vs/ska
Index:Yes/No
Speaking order/Non-speaking order
To
1.The Senior Intelligence Officer,
Directorate of Revenue Intelligence,
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WP.No.15190 of 2020 and batch
Chennai Zonal Unit, Lakshmi Colony, T.Nagar,
Chennai – 600 017.
2.The Senior Intelligence Officer,
Directorate of Revenue Intelligence,
Kolkatta Zonal Unit, No.8, Hochi Min Sarani,
Kolkatta – 700 071.
Dr.ANITA SUMANTH, J.
Sl/vs/ska
W.P. Nos.15190, 15196, 15198, 15058,
15192, 15193 & 17166 of 2020
and
WMP. Nos.19001, 18987, 18988, 19013, 21214,
21217, 19005, 18989, 21221, 18770, 18767,
18769, 19012, 18995, 18996, 18998,
18999, 19006 & 19007 of 2020
https://www.mhc.tn.gov.in/judis/
WP.No.15190 of 2020 and batch
04.03.2021
https://www.mhc.tn.gov.in/judis/
