Umang Garg v. Union Of India Thru. Secy. Finance, New Delhi

this Court in APPLICATION U/S 482 No. 5326 of 2025 (Umang Garg Vs. State of U. P. And Another), whereby this Court had directed the petitioner to file an application before the D.R.I. to appear through his legal representative and as such application may be decided strictly in accordance with law. By making the aforesaid observation, this Court dismissed the aforesaid petition. For convenience, the order dated 04-07-2025 is extracted here under: "1. 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.

2. 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.

3. 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.

4. 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.

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

6. 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.

7. 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 3 CRLP No. 7293 of 2025 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.

8. 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)."

9. 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.

10. 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. 4 CRLP No. 7293 of 2025 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.

11. 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.

12. 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.

13. 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.

14. Accordingly, the application is dismissed leaving it open to the applicants to appear before the trial court in response to the summons and raise all the pleas available to him, which will be dealt with by the trial court in accordance with law." 5 CRLP No. 7293 of 2025

6. In compliance of the aforesaid order, the petitioner preferred an application before the competent authority of D.R.I whereby the request of the petitioner for his appearance through video conferencing has been turned down by means of the impugned order dated 24-07-2025, indicating the reason in para 4, 5 and 6 of the aforesaid order. Para 4, 5 and 6 of the aforesaid order reads as under: "4 The instant case relates to the mis-use of the advance license and the goods imported under such license were sold in the domestic market thereby evading the Customs duty to the tune of Rs. 5.00 Cr approx (exact calculation will be done in the due course). Your name has surfaced from the statements of many involved persons and other evidences during the investigation. There are many questions related to you and M/s Umang Impex India Pvt. Ltd. which can only be answered by you in-person. Therefore your physical presence before the investigating agency is absolutely necessary for proper investigation of the case.

5. Your appearance through video-conferencing can't be allowed as while recording your statement, the statements of many other involved persons and other evidences gathered during investigation has to be shown physically to you. The statements and other evidences gathered during the investigation is confidential data and sharing such sensitive and confidential data during the video-conference proceedings can compromise the further course of investigation of the case.

6. Further, as alleged in your letter that one of the directors has been mis-behaved and ill treated is an afterthought and baseless. Mr. Prashant Nayak in his statement dated 16.10.2023 has stated that "the statement is written by him in full conscience and during statement no physical mental or financial pressure was given upon him and he signed each page of the statement after being satisfied". All the statements were recorded following due procedure."

7. On being confronted, the learned counsel for the petitioner on the point that the present petitioner failed to respond to the repetitive summons issued by the authority and he simply ignored the summons, as has been observed by this Court in the order dated 4-7-2025, learned counsel for the petitioner has tried to justify the conduct of the petitioner by submitting that the petitioner has been wrongly summoned in the case as he has no role in the controversy in question. He was not the director or the owner of the company after 01-04-2023 when the said company was purchased by some other person. Learned counsel has further submitted that there might be evasion of custom duty of Rs. 05 Crore but the purchaser of the company had already deposited the sum of Rs.3.92 Crores with the respondent No. 3 by a demand draft which found mention in the show cause notice. 6 CRLP No. 7293 of 2025

8. Disputing the aforesaid contention, Shri Digvijay Nath Dubey, learned counsel for the D.R.I. has stated that this is an undisputed fact that the petitioner was director/owner of the company on or before 01-04-2023 and so as to understand his complicity in the issue in question, he was summoned under Section 108 of the Customs Act and this is the prerogative of the competent authority to summon any person under Section 108 of the Customs Act if his/her prima facie involvement is being found in an issue. The powers of Section 108 of the Customs Act is pari materia to the section 164 CrPC and if the petitioner is able to show his bonafide while getting his statement recorded under Section 108 of the Customs Act, any appropriate exercise may be undertaken in accordance with law.

9. Shri Dubey has further submitted that if the present petitioner is having his bonafide in the issue in question, he should have promptly responded to the summons issued under Section 108 of the Customs Act, appearing before the authority concerned, but his conduct of avoiding those summons creates doubt on his bonafide.

10. However, after arguing the aforesaid points, the learned counsel for the petitioner has requested that the petitioner may be given liberty to appear before the competent authority along with his representative to get his statement recorded under Section 108 of the Customs Act, that any date may be fixed and direction may be issued that the petitioner may not be unnecessarily harassed.

11. Be that as it may, since the reasons so indicated in the impugned order dated 24-07-2025, prima facie, appears to be genuine, therefore, the impugned order dated 24-7-2025 requires no interference. Since the learned counsel for the petitioner has requested that any date may be fixed by the Court for the appearance of the petitioner before the competent authority pursuant to the summons issued under section 108 of the Customs Act with his authorized representative making an innocuous request that if the petitioner appears before the competent authority along with his authorized representative, he may not be subjected to ill-treatment, the petitioner is directed to appear before the Senior Intelligence Officer, Directorate of Revenue Intelligence, Zonal Unit Lucknow on 05 September 2025 at 11:00 AM sharp along with his authorized representative to co-operate in the investigation and to get his statement recorded under Section 108 of the Customs Act. 7 CRLP No. 7293 of 2025

12. The competent authority concerned shall record the statement of the petitioner and if any relevant document/evidence/material is sought from the petitioner which is necessary to complete the investigation, the petitioner shall provide the same, if those material etc. are within his possession.

13. It is expected from the competent authority of D.R.I. to record such statement and collect evidence from the petitioner strictly in accordance with law, in a normal atmosphere and if such exercise is not completed on the date fixed, any next date may be fixed as per convenience of the department as well as the petitioner.

14. It is made clear that if the petitioner does not appear before the Senior Intelligence Officer, Directorate of Revenue Intelligence, Lucknow Zonal Unit, Lucknow in terms of the aforesaid order on the date fixed, liberty is given to the competent authority to take any appropriate coercive steps against the petitioner, which is permissible under the law and at the same time it is also expected that till 05 September 2025, the petitioner shall not be unnecessarily harassed by the department or by any official thereof.

15. It is also made clear that this Court has not entered into the merits of the issue, therefore, the competent authority of D.R.I. is free to do the needful exercise in the interest of justice which is permissible under the law.

16. The writ petition is disposed of finally in view of the aforesaid terms. (Syed Qamar Hasan Rizvi,J.) (Rajesh Singh Chauhan,J.) August 27, 2025 (Manoj K.) MANOJ KUMAR High Court of Judicature at Allahabad, Lucknow Bench