Rajarshi Bharadwaj, J. - (1.) In the respective separate petitions, the petitioners pray: A) for an order to cancel or rescind the summons dated 26th March, 2019 issued by the Joint Commissioner AIU NSCBI Airport Kolkata. B) for an order prohibiting the customs authority for initiating enquiry under Section 108 of the Customs Act, 1962 against the petitioners in connection to offence covered under complaint dated 22nd March, 2019 filed by the Assistant Commissioner of Customs, AIU, NSCBI, Airport, Kolkata which was entered into the general Diary and numbered as NSCBI, Airport P.S. GDE No. 800 dated 22nd March, 2019.
(2.) The facts are substantially undisputed and may be stated as follows: The Assistant Commissioner of Customs, AIU, NSCBI, Airport, Kolkata filed a complaint on 22nd March, 2019 at Airport Police Station and the complaint was entered into a general Diary and numbered as NSCBI, Airport P.S. GDE No. 800 dated 22nd March, 2019. Extract copy of NSCBI, Airport Police Station GD Entry 800 dated 22nd March, 2019 at 23:15 hours is reproduced below: " 1. At the marginally noted time one Mr. S. K. Biswas, Assistant Commissioner of Customs, Air Intelligence Unit, NSCBI Airport, Kolkata - 700 052 called at the P.S. and submitted a written information alleging allegations under Section 186/503 of Indian Penal Code read with Section 133 of the Customs Act, 1962 which is reproduced as below. "..............In the intervening night of 15/16th March 2019 at about 1:10 AM, two lady passengers, while passing through the green channel, having arrived at NSCBI Airport, Kolkata from Bangkok by Thai Airways Flight No. TG 313 dated 16.03.2019, were requested by Customs official to show their respective passports. Those two lady passengers named Ms. Rujira Naroola and Ms. Menka Gambhir were randomly selected, considering their movement, profile, the number and size of the baggage they were carrying. These two lady passengers declined to show their passport in spite of several requests which arose suspicion and accordingly, they were requested to put their baggage for scanning in the X-ray machine installed near the green channel, which they again declined. Ms. Menka Gambhir was carrying 3 (three) pieces of checked in baggage and Ms. Rujira Naroola was carrying 2(two) pieces of checked-in baggage and also one hand baggage each. After a lot of reluctance on the part of the two ladies, finally their baggages were X-rayed. 2. On scanning, the scanning officer noticed that out of seven baggages, three baggages contained Jewellery and thus the scanning officer requested these passengers to open those three suspected baggages for examination by a lady Customs officer. When the lady Customs officer requested them to open those three bags, the passengers started abusing the officers and threatened them with dire consequences. The officers remained calm and requested and persuaded the passengers to open the said bags for examination of the jewellery and after long persuasion, only one bag was opened by the said passengers and it was found to contain two gold bangles. But they refused to show their passports and boarding passes to the concerned Customs officer even after repeated requests. Considering the huge flow of passenger through the green channel at that particular time, Shri S K Biswas, Assistant Commissioner directed the staff to take both the ladies to Counter No. 4 at the Red Channel for further checking of their baggage. Both the lady passengers initially declined to go to Counter No. 4, but ultimately they went Shri Koshalesh Singh, Supdt. of Customs, (AIU) requested the ladies to open the second bag. One of the ladies told the Customs officers that probably they did not know her identity and power. She then informed about her location to somebody over the phone. 3. After sometime, some Police personnel from NACBI Airport Police Station under Bidhannagar Police Commissionerate arrived at the International Arrival Hall and informed that one of the lady passengers happened to be wife of M.P. Shri Abhishek Banerjee and made request to release these passengers immediately without any examination of their baggage. But their requests were not adhered to and they were informed that until and unless the examination of the baggages are over by the concerned officer, the passengers would not be released. One lady Police Constable came to the spot and informed the Customs officers that one of the lady passengers was the wife of the nephew of the Chief Minister of West Bengal. During this time, more Police officers came and asked the Customs officers to allow both the ladies to go immediately, without checking their baggage, otherwise they may face problems. However, despite this pressure, the second suspected bag was opened at Counter No. 4 in which two sets of Jewellery (Kundan) were found. 4. Enquiries revealed that Flight TG-313 had landed at 12:40 A.M. on 16.03.2019 and at about 01:50 A.M. on 16.03.2019, a phone call was received from O.C. Airport Police Station on the mobile phone of Shri Jitendra Prasad, APRO on duty(8789580789), after it was diverted from the land line of the PRO Customs (033-2511 8053), enquiring if Ms. Rujira Naroola, said to be wife of Shri Abhishek Banerjee, MP was detained by Customs and if so, she should be released immediately. The matter was communicated immediately both to the Batch D.C., Shri D. Roy and to A.C., A.I.U. Shri S. K. Biswas. Another phone call was received by the PRO Customs from the West Bengal Police Protocol Cell location at the Airport with the same request and the same disclosure of status of the said two lady passengers. The S.I. Airport P.S. along with one constable in uniform and one lady constable in civil dress were physically present during the Customs examination and also one A.S.I. in civil dress joined them and all of them were insisting repeatedly to release the said passenger and companion. They were interfering in the discharge of duty by the Customs Officers and pressuring them to release the passengers. 5. In the meantime, it was found that both the passengers namely Ms. Rujira Naroola said to be wife of MP. Sri Abhishek Banerjee and Ms.Menka Gambhir were having Thai passports bearing Nos. AA563757 and AA5263387 respectively. The two ladies finally left the Airport through the Green Channel around 02:15 AM. 6. After the two passengers had left the Airport, another team of police personnel came at around 03:00 A.M. and enquired about the names of the officers on duty who were involved in intercepting the lady passengers and examination of their baggage. The contingent of Police Officers kept on increasing until the morning. Presence of a large number of Police personnel was observed in around international Arrival Hall and information was gathered that they had come to arrest the officers who had examined the baggage of the aforesaid lady passengers. The Assistant Commissioner of Customs briefed the Commissioner of Customs (Airport) Sri Manish Chandra about the incident around 7 a.m. in the morning. 7. At about 11:30 hours, a meeting was convened by the Police personnel at the Police Assistance Booth in between Airlines Ticket Counters of Air India and Vistara inside Gate No. 3C at the Departure Area of NACBI, Airport, Kolkata. The following Customs offices attended the meeting, as directed by the Commissioner of Customs (Airport), Kolkata which was communicated through Shri S. K. Biswas, Assistant Commissioner of Customs, in Charge of AIU and Admin: 1. Rajesh Kumar Tiwary, Supdt. of Customs, AIU 2. Akhilesh Kumar, Supdt. of Customs, AIU, 3. Rohit Kumar, Supdt. of Customs, AIU, 4. Gitesh Kumar, Supdt. of Customs, Batch-A (Uninformed officer) 5. Ranjan Bhattacharyya, Preventive Officer, Customs, Batch-A, (Uniformed officer) 6. Koshalesh Singh, Supdt. of Customs, AIU The following Police Officers were present at the meeting: * Shri Arup Roy Chowdhury (who was in White uniform) * Shri Sudip Dey ( used to do protocol duties at Airport and was in civil dress) * Shri Surajit Dey (ACP, who was in Khaki uniform) 8. Shri Arup Roy Chowdhury, one of the police personnel present in the meeting, informed that they were in receipt of one complaint against Customs Officials, from one lady who had arrived from Thailand in the early morning of 16.03.2019, alleging misbehavior, harassment, undue detention and extortion of money for clearance of her luggage. He specifically enquired about three officers of Customs namely, Shri S.K. Biswas, Shri Koshalesh Singh and Smt. Pratibha Meena, who were on duty during the incident. They did not divulge the name of the complainant but made it clear that the complaint is related to the incident, for which they had intervened in the early morning of 16.03.2019. 9. The police personnel proposed preparation of a common SOP, which may include easy passage of their VIPs without any interception by Customs in the Green Channel. They added that if there would be any such complaint in future, that would be viewed seriously and severe action will be taken against the concerned Customs Officials, which may include arrest detention of the officer concerned. They wanted an SOP, where VIPs are not checked. The Police Officers were informed in the said meeting that Customs will follow all the Rules and Regulations they enforce and in case they want any exemption they may approach the competent authority through proper channel with such request. Thereafter, the police people stationed in large numbers at the Airport left the place. 10. In conspectus of the aforesaid facts, it is manifest without any iota of doubt that the aforesaid two passengers and the Police personnel voluntarily and intentionally obstructed the public servants (the officers of Customs) to discharge their public functions and to exercise their powers under the Customs Act, 1962, interfered and influenced the Customs officers on duty and criminally intimidated them from doing their public functions. Such obstruction, interference and criminal intimidation by the Police is without any authority of law and hence illegal, arbitrary and unlawful. 11. Now it is requested that a 'First Information Report' (FIR) may be registered against the aforesaid two passengers, the Police Personnel and other unknown persons, who abused and resorted to criminal intimidation and voluntarily/intentionally obstructed the officers of Customs to exercise their power as conferred under the Customs Act, 1962 as per Section -186 and Section 503 of Indian Penal Code read with Section 133 of the Customs Act, 1962. It is also requested that a thorough investigation may be carried out and the culprits be proceeded in accordance with laws. Kindly register the FIR for the offences mentioned above. We reserve our right to appeal an appropriate Court for taking cognizance of the non-cognizable offences. However, this would not be justification for you not to register the present FIR, while manifestly make out cognizable offence. This is also, without prejudice, of our right to pray for other relief regarding an impartial investigation before an appropriate judicial forum". On 23rd March, 2019, the jurisdictional police authorities made a prayer before the Ld. Additional Chief Judicial Magistrate, Barrackpore, North 24-Parganas for investigating into offences in respect of the complaint dated 22nd March, 2019. The Ld. Magistrate passed an order on 23rd March, 2019 permitting the police authorities to investigate the offence under Section 155 of the Code of Criminal Procedure. But no report in the form of complaint was filed by the police authorities before the learned Magistrate as investigation into the commission of non-cognizable offence could not be completed by the police authorities.
(3.) After filing complaint before the police, the Joint Commissioner of Customs, AIU, NSCBI, Airport, Kolkata being the respondent no. 3 in the instant application issued summons dated 26th March, 2019 to both the petitioners and the summons are reproduced below: JUDGEMENT_36_LAWS(CAL)6_2020_1.html JUDGEMENT_36_LAWS(CAL)6_2020_2.html ;