Are Customs/DRI Officers 'Police Officers'? Whether CrPC Applicable To Customs Act Proceedings? Supreme Court To Decide

The Bench comprising Justice JB Pardiwala and Justice Manoj Misra was hearing a Special Leave Petition arising from a judgment of the Telangana High Court disallowing the custody of respondents to the Directorate of Revenue Intelligence.

The court formulated these questions of law for consideration

1. Whether a DRI Officer is a “proper officer” for the purposes of Section 28 of the Customs Act, 1962?
2. Whether the summons issued by the DRI Officer to the respondent under Section 108 of the Customs Act, 1962 could be said to be without jurisdiction?
3. Whether the Customs/DRI Officers are police officers and, therefore, are required to register FIR in respect of an offense under Sections 133 to 135 respectively of the Customs Act, 1962?
4. Whether the provisions of Sections 154 to 157 respectively and 173(2) of the Code of Criminal Procedure, 1973 would apply in respect of the proceedings under the Customs Act, 1962, in view of Section 4(2) of the Code?
5. Whether in respect of the offenses under Section 133 to 135 respectively of the Customs Act, 1962, the registration of the FIR is mandatory before the person concerned is arrested and produced before the Magistrate?”

Matter is to be listed for final disposal on 19.07.2023.

It may be noted that a 3-judge bench of the Supreme Court in Canon India Private Limited Vs. Commissioner Of Customs had held that Directorate of Revenue Intelligence(DRI) are not 'proper officers' within the meaning of Section 28(4) of the Customs Act, who are empowered to undertake process or recovery of duties.

BACKGROUND OF THE CASE

The case of the DRI is relating to alleged diversion of duty-free gold bullion, which was meant to be exported within 90 days of procurement under the Advance Procurement Scheme of the FTP, to the domestic market, resulting in unlawful gains for the accused.

The  Sessions Judge disallowed the request of the Directorate of Revenue Intelligence officials(DRI) for custodial interrogation on the ground of want of jurisdiction and that no valid grounds existed to permit the recording of the statement of the respondent.

Need to record statements to unearth modus operandi: Empowered under section 108, Customs Act to do so contends DRI

Aggrieved by the same, the petitioner(DRI) approached the High Court contending that the respondent is the mastermind behind the entire fraudulent activities and the modus operandi of has to be retrieved from him.

The petitioner submitted that recording of the statement of the respondent is also necessary to proceed with the investigation and such power is vested upon the Directorate of Revenue Intelligence as per Section 108 of the Customs Act, 1962.

The respondent submitted that DRI is under obligation to investigate the case and cull out the truth and custodial interrogation is impermissible under law.

Telangana High Court held Customs officer is not empowered to collect incriminating material from accused persons

The High Court, after analyzing section 108 of the Customs Act observed that “the Gazetted Officer of customs shall have the power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry. That does not mean that power is vested upon the Officer of customs to collect information which would otherwise be termed as incriminating material from the person against whom an accusation is made.”

The High Court relied upon the constitutional mandate under Art. 21 and Article 20 (3) to hold that the police or the other officials who are investigating a case cannot be permitted to compel a person against whom an accusation is made to make a statement either inculpatory or exculpatory.

Mr. Mukesh Kumar Maroria, AOR appeared for the petitioner along with Advocates Ms. Shradha Deshmukh, Mr. V.C. Bharathi, Mr. Anirudh Bhat, Mr. Annirudh Sharma II, Mr. Akshit Pradhan, Adv.

Case title : Senior Intelligence Officer v. Sanjay Agrawal, Petition(s) for Special Leave to Appeal (Crl.) No(s). 4821/2023

Click here to read the order