Case Note & Summary
The petitioner, Kalpesh Ghevarchand Jain, filed a writ petition before the Bombay High Court seeking two reliefs: (1) recording of his statement under Section 108 of the Customs Act, 1962 in the presence of his advocate at visible but not audible distance, and (2) de-sealing of his premises which had been sealed by the Directorate of Revenue Intelligence (DRI). The petitioner was involved in a gold smuggling investigation. The court heard the parties and noted that the first prayer was harmless and had been granted in similar matters by the same court. The petitioner had alleged assault during earlier questioning, which provided a background for the request. The respondent opposed, arguing no right to counsel existed under the Customs Act and that sealing was lawful under Sections 110 and 121. The court allowed the first prayer, directing that the petitioner's advocate may remain at visible but not audible distance during the statement recording. Regarding the second prayer, the court observed that while sealing was initially permissible under Section 110 read with Section 121, no show cause notice had been issued within the statutory period, making continued sealing unjustified. The court directed de-sealing of the premises within 48 hours. The petition was disposed of with these directions.
Headnote
A) Customs Law - Right to Counsel - Section 108 Customs Act, 1962 - Presence of Advocate at Visible Distance - Petitioner sought presence of advocate at visible but not audible distance during recording of statement under Section 108 - Court allowed the prayer as harmless, noting similar orders passed in other matters and the petitioner's allegation of assault - Held that presence of advocate at visible distance does not impede investigation and safeguards the petitioner's rights (Paras 3-6). B) Customs Law - Sealing of Premises - Sections 110 and 121 Customs Act, 1962 - De-sealing of Premises - Petitioner sought de-sealing of his premises sealed by DRI - Court found that sealing was done under Section 110 read with Section 121, but no show cause notice was issued within the statutory period - Held that continued sealing without notice is unjustified and directed de-sealing within 48 hours (Paras 4-7).
Issue of Consideration
Whether the petitioner is entitled to have his advocate present at visible but not audible distance during recording of statement under Section 108 of the Customs Act, 1962, and whether the sealing of his premises by DRI is lawful.
Final Decision
The court allowed the petition. Directed that the petitioner's statement under Section 108 of Customs Act be recorded in the presence of his advocate at visible but not audible distance. Further directed the respondents to de-seal the petitioner's premises within 48 hours.
Law Points
- Right to counsel during Section 108 Customs Act statement
- Sealing of premises under Customs Act
- Section 110 and 121 Customs Act
- 1962
