IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL.) NO: 285 OF 2019 (Under Article 32 of the Constitution of India) IN THE MATTER OF: KALPESH KANTILAL DAMANI --PETITIONER Versus STATE OF MAHARASHTRA AND ORS. «RESPONDENTS WITH CRL MP. No. An Application for Directions/Stay PAPER BOOK (FOR INDEX KINDLY SEE INSIDE) ADVOCATE FOR THE PETITIONERS: ANZU K. VARKEYRECORD OF PROCEEDINGS S.NO.DATE OF RECORD OF PROCEEDINGS PAGESINDEX S.No Particulars of Documents Page No. of Partto | Remarks | which it belongs Part! (Contents of Paper Book) Part IT (Contents of. file alone) @ (ii) (iv) (v) Court Fees Listing Proforma AT-A2 ATA Cover Page of Paper Book A3 Jose Index of Record Proceedings 4 Defect List AG Note Sheet NsI TO ‘Synopsis/ List of Date B-l ele]=|/5]>) Writ Petition along with Affidavit 4-22 2 APPENDIX Section 25 of Evidence Act and Section 108 of Customs Act -224 ANNEXURE P-1 Copy of Summons dated 29.8.2019 ‘ANNEXURE P. Copy of Reply dated 12.9.2019 to Summons 12, ANNEXURE P-3 Copy of Reply dated 21.9.2019 sent by Respondent No.2 13, ANNEXURE P-4 Copy of the “Summons dated 20.9.2019 14, ANNEXURE P-5 Copy of the Order dated 23.09.2019 passed by this Hon'ble Court in W.P.(Cri.) 261 of 2019 15. ANNEXURE P-6 Copy of Reply dated 26.9.2019 16. ANNEXURE P-7 Copy of the Order dated 08.1.2019 passed by this Hon'ble Court in W.P. (Cri.) 336 of 2018 17, ANNEXURE P-8 Copy of the Order dated 30.9.2019 passed by this Hon'ble Court in W.P. (Crl,) 266 of 2019 78. CRL MP. No........./2048 ‘An Application for Directions/Sta) 32-34 79. Affidavit of Urgency 35-36 20 Copy of Letter -36A, 24 Filling Memo, 37 22. VAKALATNAMA 38 |AL PROFORMA FOR FIRST LISTING SECTION: x The case pertains to (Please tick/check the correct box): Central Act: (Title) CONSITUTION OF INDIA Section: U/A 32 OF CONSTITUTION OF INDIA Central Rule: (Title) Rule No(s) State Act: (Title) Section: State Rule: (Title) Rule No(s) Impugned Interim Order: (Date) (Date) Impugned Final Order/Decree: High Court: (Name) Names of Judges: Tribunal/Authority: (Name) i. | Nature of matter: CRIMINAL 2.(a) | Petitioner/appellant No.1 KALPESH KANTILAL DAMANI | (b) | e-mail 1D: (©) _| Mobile Phone Number 3.(a) | Respondent no.1 STATE OF MAHARASHTRA AND ORS. (b) | e-mail 1D: N/A (| Mobile Phone NumberA-2 4.(a) | Main category 1417 CRIMINAL... F classification _ (b) | Sub classification 7 1417 CRIMINAL 5. | Not to be listed before “N/A. 6. | (a) Similar disposed of NO SIMILAR MATTER - matter with citation. If any, & Case details (b) Similar pending W.P (Crl.) 261 of 2019, matter with case details | WP(CRL) No. 336/2018 |___WP(CRL) No. 266/2019 7. | Criminal Matter: (a) | Whether accused/convict =| has surrendered: | (b)_ | FIR No. & Date : | ()__| Police Station : 7 (d)_ [Sentence Awarded a (e) | Sentence Undergone, ’ Sentence of Detain i Including period of | detention : 8. | Land Acquisition Matters |(a)_ [Date of Section 4 - : } notification (b) | Date of Section 6 notification 4 (c)_ | Date of Section 17 ‘notification’ : 9. | Tax Matters: State the tax effect, 10. |Special Category (first petitioner/appeliant only): | AN / Aevapssseeee Senior citizen > [SC/ST | Woman/child | Disabled | Legal Aid | In 65 Years Case custody Ii, | Vehicle Number (in case of Motor Accident Claim matters) DATE : 15/10/2019 ANZU K. VARKEY AOR for petitioner(s)/appellants(s) Registration No.2347 varkeyanzu@yahoo.co.in, E-mail% The instant Writ Petition raises ecclesiastical issues of SYNOPSIS grave constitutional, legal and public importance primarily relating to the validity, admissibility, ambit as well as scope of the powers vested with Customs/DRI officers under Section 108 of Customs Act, 1962. Vide the instant petition, Petitioner is inter-alfa seeking reading down of Section 108 of the Customs Act, 1962 in the garb of which, the Respondent No.3 issues Summons to record self- incriminating statements in violation of Article 20(3) of the Constitution of India. Also, Petitioner has already raised the issue of the vitiation of the entire investigations/inquiry being carried out by ‘the DRI as no ‘procedure established by law’ as contemplated under Chapter XII of Cr-P.C has been followed The abovesaid issue is sub-judice before this Hon'ble Court in a plethora of matters, the latest being "W.P.(Cri.) 266 of 2019 titled as Gagan Bajaj & Ors. vs. Union of India & Anr.” which recently came up for hearing before this Hon'ble Court wherein, vide Order dated 30.9.2019 this Hon'ble Court was pleased to inter-alia direct as under:~ “Issue notice No coercive steps shall be taken against the petitioners in the meanwhile..." Petitioner has also raised the above issue of non-compliance with the procedure contemplated under Chapter XII of Cr.P.C by filing a separate ‘Writ Petition (Crl.) 261 of 2019 titled as Kalpesh Damani vs. Union of India & Ors.” : Petitioner is a victim of grave persecution and harassment being meted out him in a manner alien to the settled tenets of criminal jurisprudence and the actions of the Respondents are grossly violative of“L the Fundamental Right to life & liberty as guaranteed under Article 21 of the Constitution. Petitioners is being summoned & circuitously sought to be arrested by Respondent No.2 Directorate of Revenue Intelligence, Kolkata in the purported investigations under the Customs Act, 1962 in complete violation of the ‘procedure established by law. No procedure as contemplated under Chapter XII of the Code of ‘Criminal Procedure read with Section 4(2) thereof has been followed for investigating either a cognizable or non-cognizable offence, thus rendering the very commencement & continuation of the investigation under Customs Act to be non-est, illegal, unconstitutional, void ab-initio and completely vitiated in law. The following questions of law jnter-alia arise for the kind determination of this Hon'ble Court:~ a) Whether the word ‘any person’ occurring in Section 108 of Customs Act would include within its ambit person accused of any offence’ as envisaged under Article 20(3) of the Constitutiori of India? b) Whether in the garb of exercise of powers under Section 108 of Customs Act, 1962, can ‘any person’ be forced to make a self-incriminating statement on the premise that the person 'so summoned shall be bound to state the truth’ as envisaged under Section 108(3) thereof? c) Whether Section 108 of Customs Act permits a roving inquiry/investigations where ‘any person’ could be summoned irrespective of the status of such. person being either a witness or an accused? d) Whether the statement of any person recorded in terms of Section 108 of Customs Act who is eventually arrested ore) 9) D arraigned as accused is inadmissible and hit by Section 25 of the Indian Evidence Act, 1872? Whether in the absence of compliance with any procedure under Chapter XII of Cr.PC for investigating an offence under Customs Act, a Customs/DRI Officer can invoke the power under Section 108 of the Customs Act to record a statement of ‘any person’ which may lead to self- incrimination? Whether right to remain silent being fundamental protection and guarantee under Article 20(3) of Constitution could be displaced by Section 108 of Customs Act, 1962 which binds the person so summoned to state the truth? Whether the investigating/inquiry officer of the Customs/DRI Department exercising powers under Section 108 of Customs Act, 1962 assumes the role of a ‘judge’ by virtue of Section 108(4) of Customs Act, 1962 which deems every inquiry thereof to be a judicial proceeding? HENCE, THIS PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA.& LIST OF DATES AND EVENTS Dates Events Pelitioner is aged about 39 years and has lived a life of dignity and honour. Petitioner's family comprises of his wife aged about 35 years who is essentially a homemaker and two minor children viz. a daughter aged 11 years and son aged 3% years respectively. Petitioner's father is aged about 72 years and is living a retired life whereas his mother is aged about 65 years. (08.01.2019 ‘At a young age of 19 years, Petitioner started his own business of trading in mobile phones & its accessories and over the last more than 15 years, he has made a name for himself in. the said industry. Since the year 2015-16, Petitioner's company M/s Momaxx Exim Pvt. | Ltd. (incorporated in 2010-11) has been importing as ; well as domestically trading in mobile accessories. Apart from the field of mobile accessories, Petitioner has no | connection with any other trade. WP. (Cri) 336 of 2018 fitled as “Radhika Agarwal vs. | Union of India & Ors." raising issue of non-compliance with the procedure contemplated under Chapter xi Cr.P.C. while commencing & continuing investigations | under Customs Act came up for hearing when vide i Order dated 08.01.2019, this Hon'ble Court was pleased | to direct as under:- "Issue notice. i No coercive steps shall be taken against the!rc petitioner in the meanwhile.” 28.6.2019 | The officials of Respondent No, 2 from Kolkata visited the Petitioner's house at Mumbai, Maharashtra al 28.8.2019 at 8:30 AM in the morning. A purported | search was carried out. At that time neither the Petitioner nor his brother were present as the petitioner was out of country for business purposes. Petitioner usually Imports mobile phone accessories and for that purpose visits South East Asia. One of the petitioner’s co-director in the Company namely Shri Vishal Joshi was taken by the said officials to the office of DRI located at New Marine Line, Mumbai and sought information from him regarding purported importation of rough precious stones through Kolkata Airport Cargo Complex. It was disclosed to the DRI that the above company does not deal with any such import and that they have another firm by the name of Suns.Inc which deals in trading of mobile phone accessories only. The details regarding location of their shops at Orchid City Centre Mall at Mumbai Centre were | provided, The Importer Exporter Code (|EC) of the above company was also given. Upon being asked about one Jodha Ram, the said Vishal Joshi apprised | the officials that he was also a shop owner in the same Mall dealing with mobile phone accessories. Shri Joshi denied having any knowledge about any transaction with said Jodha Ram. He also denied any link with one C.A. Karan Ranka. He also told the officials that the petitioner was traveling abroad for business purposes. a eeG |However, the officials handed over a purported | summons to said Vishal Joshi, in the name of the present petitioner bearing No. DRI/KZU/CF/INT- 04/2019/4659 dated 29.08.2019 for appearance of the Petitioner on 11.09.2019, 12.09.2019 | Upon being apprised of the said summons, the Petitioner has since sent a reply thereto, through his counsel highlighting the factum of his traveling abroad. However, the petitioner is apprehensive of invasion of his liberty by the officials of Respondent NO. 2 in the garb of the Purported inguiry/investigations under Customs Act, 1962. Petitioner clearly highlighted that he has no | concern with the subject matter of investigations and has been dealing with mobile phone accessories for the last more than 15 years and has never dealt with “ough precious stones” at any stage. It was also requested that since the subject cited Summons did not disclose any specific purpose, the Respondent No.2 may send nature of questions/queries and documents required from the Petitioner so as to enable him to collate and collect the same for onward transmission. 219.2019 | A’Reply was sent by the Respondent No.3 stating that the name of the Petitioner “has surfaced in the ongoing investigation" and that “his personal presence is required for the ongoing investigation”. Further, despite the Petitioner requesting that since the subject cited Summons did not disclose any specific purpose, the Respondent No.3 may send nature of questions/querlesY [and documents required from the Petitioner so as to | enable him to collate and collect the same for onward transmission. However, it was stated by the Respondent No.3 in its response that “the information and/or questions to be asked will depend on the outcome of the i investigation till the date, which cannot be shared beforehand". Along with the sald Reply, Petitioner also received the impugned Summons dated 20.9.2019 | requiring the personal presence of the Petitioner wherein | also, no purpose of summoning was disclosed. : 23.9.2019 ‘As there was blatant non-compliance with the ‘procedure established by law, Petitioner approached this Hon'ble Court vide “Writ Petition (Cri,) 261 of 2019 titled as Kalpesh Damani vs. Union of India & Ors.” challenging the instant investigations under the Customs Act wherein, vide Order dated 23.09.2019, this Hon'ble Court was pleased to “issue notice in the writ petition as also in the application for stay.” 26.9.2019 Even to the said Summons, the Petitioner replied through his counsel stating that it is not clear as to whether the Petitioner is being summoned as an accused or Is he required only for giving evidence etc. while clarifying that the Petitioner is not seeking details about investigation but is only seeking clarity as regards his status as well as the details of any material or documents that may be required from him, especially when the investigation relates to importation of rough precious stones whereas, the Petitioner.is only dealing eee— Twith mobile phone accessories for the last more than 15 years and has never dealt with “rough precious stones" at any stage. in the light of the above, Petitioner is apprehending invasion of his liberty at the hands of the Respondents in | the garb of recording of a Statement under Section 108 | of Customs Act. Since the Respondents have not | followed any procedure while investigating an under the / Customs Act, Petitioner is constrained to approach this Hon'ble Court inter-alfa seeking quashing of such non- est summons issued in violation of the ‘procedure established by law’. \ 30.09.2019 45/10/2019 es Recently, another similar matter i.e, W.P. (Cri.) 266 of 2018 titled as “Gagan Bajaj & Anr. vs. Union of India & Ors." raising identical issue of non-compliance with the | procedure: contemplated under Chapter XII Cr. P.C. while commencing & continuing investigations under Customs Act came up for hearing when vide Order dated 30.09.2019, this Hon'ble Court was pleased to direct as under:- “Issue notice. No coercive steps shall be taken against the petitioners in the meanwhile. - Tag with W.P.(Crl.) 336 of 2018” Hence, the present Writ Petition.IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL.) NO. OF 2019 (Under Article 32 of the Constitution of India) IN THE MATTER OF Kalpesh Kantilal Damani, son of Sh. Kantilal Virji Damani, aged about 39 years, resident of 1/11, Jay Shanti Apartment, Navy Colony, Malad West, Mumbai 400064. .-PETITIONER VERSUS 4. State of Maharashtra through its Secretary, Mantralaya, Madam Cama Road, District Mumbai, Maharashtra. 2, Union of India, through Secretary Revenue, Ministry of Finance, North Block, New Delhi. 3. Directorate of Revenue Intelligence, Kolkata Zonal Unit, 8, Ho-Chi- Minh Sarani, Suite No, 16 & 17, Kolkata-700 071 through its Senior Intelligence Officer. ..RESPONDENTS To THE HON'BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA. THE HUMBLE PETITION OF THE PETITIONERS ABOVE-NAMEDee MOST RESPECTFULLY SHEWETH: a 1A The instant Writ Petition raises ecclesiastical issues of grave constitutional, legal and public importance primarily relating to the validity, admissibility, ambit as well as scope of the powers vested with Customs/DRI officers under Section 108 of Customs Act, 1962. Vide the instant petition, Petitioner is infer-alia seeking reading down of Section 108 of the Customs Act, 1962 in the garb of which, the Respondent No.3 issues Summons to record self- incriminating statements in violation of Article 20(3) of the Constitution of India. Also, Petitioner has already raised the issue of the vitiation of the entire investigations/inquiry being carried out by the DRI as no ‘procedure established by law’ as contemplated under Chapter XIl of Cr.P.C has been followed. The abovesaid issue is sub-judice before this Hon'ble Court in a plethora of matters, the latest being "W.P.(Cri,) 266 of 2019 titled as Gagan Bajaj & Ors. vs. Union of India & Anr.” which recently came up for hearing before this Hon'ble Court wherein, vide Order dated 30.9.2019 this Hon'ble Court was pleased to infer-alia direct as under;- “Issue notice. No coercive steps shall be taken against the petitioners in the meanwhil Petitioner has also raised the above issue of non-compliance with the procedure contemplated under Chapter XII of Cr.P.C by filing a separate "Writ Petition (Cri.) 261 of 2019 filed as Kalpesh Damani vs. Union of India & Ors.” That the petitioner has not approach concern authority for the same relief.