Umang Garg v. State Of U.P. Thru. Prin. Secy. Home Lko. And Another

Heard Ms. Ruby Choudhary, learned counsel for the applicant, Sri Mayank Sinha, learned AGA for the State and Sri Digvijay Nath Dubey, learned counsel for respondent-Directorate of Revenue Intelligence.

By means of the instant application filed under Section 482 Cr.P.C./528 B.N.S.S., the applicant has challenged validity of the summoning order dated 25.07.2024 passed in DRI Case No. DRI/ZU/CI-26/Int-17/F/2023, under Sections 208 & 210 Bhartiya Nyayik Sanhita, Police Station DRI, District Lucknow as well as the entire proceedings of the aforesaid case pending before the court of the Special Chief Judicial Magistrate (Custom), Lucknow.

By means of the order dated 25.07.2024, the Special Chief Judicial Magistrate (Customs), Lucknow has taken cognizance of offences under Sections 208 & 210 BNS and has summoned the applicant.

Section 208 BNS provides that whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summon from any public servant legally competent to issue the same, intentionally omits to attend at that place or time, shall be punished with simple imprisonment upto one month, or with fine upto Rs. 5,000/- or with both.

Section 210 BNS provides for punishment for omission to produce documents to public servant.

The aforesaid order has been passed in a complaint filed by the Directorate of Revenue Intelligence stating that a preliminary inquiry has revealed that M/s Proffer Information System India Pvt. Ltd. has been importing some goods under advance licence scheme but no export was done under the said scheme. During search of the registered premises of the company, no goods or manufacturing activity was notice. The office members of the company were also found to be bogus. In response to a summon issued to the Manager of the company, he recorded his voluntary statement under Section 108 of Customs Act, 1962.

Sri Prashant Kumar Nayak, a Director of the company has also appeared in response to the summons issued by the Directorate of Revenue Intelligence and has got his statement recorded. He stated that Sri Umang Garg (the applicant- Ex-Director of M/s Umang Impact) has put his signatures on 'the deed of high see sale' dated 20.04.2023 and he stated that further details about this deed may be divulged by the applicant only. Thereafter summons were issued to the applicant on 06.10.2023, 16.10.2023, 23.10.2023, 10.11.2023, 14.12.2023 & 04.07.2024 under Section 108 of the Customs Act but the applicant did not turn up. The applicant's presence is necessary for investigation of the case and non appearance of the applicant in response to the summons issued to him repetitively amounts to an offence under Section 208 & 210 of BNS, 2023.

Section 108 of the Customs Act provides as follows:- " 108. Power to summon persons to give evidence and produce documents (1)Any Gazetted Officer of Customs shall have 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 which such officer is making under this Act. (2)A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3)All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject, respecting which they are examined or make statements and produce such documents and other things as may be required: Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4)Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860)."

A bare perusal of Section 108 quoted above makes it manifest that subsection (3) of Section 108 provides that a person summoned may attend either in person or by an authorised agent, as the summoning officer may direct.

Learned counsel for the applicant has submitted that the applicant could not appear in response to the repetitive summons issued by the Directorate of Revenue Intelligence because of his illness. An OPD prescription issued by Sharda Hospital on 28.10.2023 has been annexed with the petition showing that on 28.10.2023, the applicant was suffering from high grade fever and he had been advised medication for three days. No other prescription has been brought on record to indicate continued ailment of the applicant during the period repetitive summons were issued to him. Various pathological examination reports of the applicant have been annexed with the petition which do not disclose that the applicant was suffering from any serious ailment during the period in question. On 19.10.2023 the applicant has sent an e-mail in response to the summons dated 16.10.2023 stating that due to some unavoidable reasons unforeseen circumstances, he would not be able to attend hearing on the scheduled date and he sought seven days time to appear and join the investigation as stated in the summons. On 13.10.2023, the applicant sent an e- mail stating that he was suffering from Dengue fever and he sought ten days time to appear and join the investigation. On 27.12.2023, the applicant again sent an e-mail stating that he would not be able to attend the hearing on 27.12.2023 due to some unavoidable reasons, unforeseen circumstances without disclosing the reason or the circumstance. No other communication has been brought on record to indicate that the applicant has responded to the summons issued to him thereafter.

Learned counsel for the applicant has submitted that when Section 108(3) of the Customs Act permits appearance of the persons summoned through his representative, the applicant should be granted permission to appear through his representative or through video conferencing.

This request ought to have been made by the applicant in response to various summons issued to him by the Directorate of Revenue Intelligence but the applicant failed to respond to the repetitive summons issued by the authority and he simply ignored the summons. The repetitive failure from the applicant to appear in response to the summons issued by the officials of Directorate of Revenue Intelligence, prima facie, makes out a case for his trial for committing offences under Section 208 & 210 of the Bhartiya Nayay Sanhita, in these circumstances, the trial court has not committed any error or illegality in issuing summons to the applicant for facing trial for the aforesaid offences. As offences under Sections 208 & 210 BNS are punishable with imprisonment which may extend for a period of one month only, there is no apprehension of the applicant being arrested upon his appearance before the trial court in facing trial of offences under Sections 208 & 210 BNS.

So far as the applicant's request for permission to appear through representative or through video conferencing is concerned, the applicant ought to have made this request to the authorities of the Directorate of Revenue Intelligence and he is still at liberty to make this request to the authorities or before the trial court which request shall be considered and dealt with in accordance with law. In absence of any illegality having been committed by the authorities of the Revenue Intelligence and by the trial court, this Court does not find any good ground to interfere in the present application under Section 528 BNSS.