Legal principle

A Letter of Rogatory under Section 166-A Cr.P.C. can be issued only in aid of an investigation validly commenced under Chapter XII of the Cr.P.C.; where the alleged customs offence is non-cognizable under Section 104(5) of the Customs Act, prior permission of the Magistrate under Section 155(2) Cr.P.C. is a mandatory prerequisite.

Court decision

The Bombay High Court allowed the writ petition in terms of prayer clauses (a) and (b), holding that Section 166-A Cr.P.C. is not an independent provision and the Letters of Rogatory issued without an investigation validly initiated under Chapter XII could not be sustained; it quashed and set aside the action of the respondents in giving effect to the Letters of Rogatory, while expressly leaving open the merits of the LRs.

Facts

DRI alleged that between October 2010 and March 2016 the Adani Group imported about 1,300 consignments of Indonesian coal, largely routed through step-down subsidiaries in Singapore and Dubai, and grossly overstated the import value relative to the export value declared in Indonesia, with a value mismatch of about Rs. 930 crore in 231 consignments, while availing nil/concessional duty under the ASEAN-India Free Trade Agreement. DRI asserted the mis-declaration of grade and value rendered the goods liable to confiscation under Section 111(m) and the persons involved liable to penalty under Sections 112(b)(iii) and 114AA, besides offences under Sections 132 and 135 of the Customs Act. After requisitions under Section 108 to the petitioners went unanswered, DRI applied to the Addl. Chief Metropolitan Magistrate, Mumbai, which issued four Letters of Rogatory under the MLAT (including one to Singapore on 2/8/2016) to obtain evidence from Singapore, UAE, Hong Kong and the British Virgin Islands. The petitioners challenged this course of action in a criminal writ petition before the Bombay High Court.

Key provisions

• Section 4(2), Customs Act, 1962 — Appointment of officers of customs
• Section 132, Customs Act, 1962 —  False declaration, false documents,etc
• Section 104, Customs Act, 1962 — Power to arrest
• Section 154, Customs Act, 1962 — Correction of clerical errors etc
• Section 108, Customs Act, 1962 — Power to summon persons to give evidence and produce documents
• Section 155, Customs Act, 1962 — Protection of action taken under the Act
• Section 111(m), Customs Act, 1962 — Confiscation of improperly imported goods etc
• Section 114AA, Customs Act, 1962 — Penalty for use of false and incorrect material
• Section 35(3), Customs Act, 1962 — Restrictions on goods being water-borne
• Section 112(b)(ii), Customs Act, 1962 — Penalty for improper importation of goods
• Section 135(1)(i)(c), Customs Act, 1962 — Evasion of duty or prohibitions
• Section 46, Customs Act, 1962 — Entry of goods on importation