1992 (5) TMI 147 - SC - Companies Law

No constitutional right under Article 21 to insist on lawyer presence during questioning under Customs Act, 1962 and FERA

Poolpandi Versus Superintendent, Central Excise

SC held that persons questioned under the Customs Act, 1962 and FERA, 1973 have no constitutional right under Article 21 to insist on the presence of a ... Entitlement to the presence of their lawyers when they are questioned during the investigation under the provisions of the Customs Act, 1962, and the Foreign Exchange Regulation Act, 1973 - right to insist on the presence of his lawyer - constitutional protection of life and personal liberty guaranteed by article 21 - provisions of Chapter XIII and Chapter XIV of the Customs Act and contended that since there is no statutory provision prohibiting the presence of a counsel during the interrogation of the person concerned, a request in this regard, if made, cannot be legitimately refused. - Held that:- We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under article 21 is violated. The argument proceeds thus : if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering questions it amounts to mental torture. We are unable to agree. It is true that a large majority of persons connected with illegal trade and evasion of taxes and duties are in a position to afford luxuries on lavish scale, which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr. Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the questioning. The purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-co-operative attitude to the machinery of law, there cannot be any legitimate objection to depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit in which they were made and the benefits thereunder should not be expanded' to favour exploiters engaged in tax evasion at the cost of the public exchequer. Applying the 'just, fair and reasonable test' we hold that there is no merit in the stand of the appellant before us. The judgment under challenge in Criminal Appeal No. 476 of 1986 deals with several questions raised by the respondent, and the appeal has been pressed by Mr. Tulsi as against that part which allows the presence of a lawyer when the respondent is interrogated. It has been rightly contended on behalf of the appellant that the relevant provisions, in this regard, of the FERA and the Customs Act are in pari materia and the object of the two Acts is also similar. As pointed out earlier the case of Ramanlat Bhogilal [1973 (1) TMI 95 - SUPREME COURT], was one arising under the Foreign Exchange Regulation Act. Consequently, Criminal Appeal No. 476 of 1986 has to be allowed against that part of the judgment of the Delhi High Court which dealt with the right Of the respondents to have their lawyer during their interrogation. In the result Criminal Appeal No. 476 of 1986 is allowed, but with out costs in the terms indicated above and the other cases are dismissed with costs to the Union of India. Issues Involved:1. Entitlement to the presence of lawyers during interrogation under the Customs Act, 1962, and the Foreign Exchange Regulation Act, 1973.2. Applicability of Article 20(3) of the Constitution regarding self-incrimination.3. Applicability of Article 21 of the Constitution regarding protection of life and personal liberty.4. Distinction between an accused in a criminal case and a person called for interrogation under the Customs Act and FERA.5. Extension of the period of limitation for taking certain steps under the statutes due to the pendency of the cases.Detailed Analysis:1. Entitlement to the Presence of Lawyers During Interrogation:The primary issue was whether individuals being interrogated under the Customs Act, 1962, and the Foreign Exchange Regulation Act, 1973, are entitled to the presence of their lawyers. The Delhi High Court had allowed such presence, while the Madras High Court had taken the opposite view. The Supreme Court, referencing the absence of statutory provisions prohibiting the presence of counsel, considered whether denying such a request would violate constitutional protections.2. Applicability of Article 20(3) of the Constitution:The appellants argued that denying the presence of a lawyer during interrogation would violate Article 20(3) of the Constitution, which protects against self-incrimination. They relied on the observations in Nandini Satpathy v. Dani, suggesting that this protection should extend to potential accused persons. However, the Supreme Court, citing Ramesh Chandra Mehta v. State of West Bengal and Illias v. Collector of Customs, held that Article 20(3) applies only to individuals formally accused of an offense and not to those merely under investigation.3. Applicability of Article 21 of the Constitution:The appellants also contended that Article 21, which guarantees the right to life and personal liberty, entitles individuals to the presence of a lawyer during interrogation to prevent mental distress. The Supreme Court rejected this argument, emphasizing that the purpose of the inquiry under the Customs Act and similar statutes would be frustrated if individuals could insist on the presence of counsel. The Court held that applying the 'just, fair, and reasonable test,' there was no merit in the appellants' position.4. Distinction Between an Accused and a Person Called for Interrogation:The Court distinguished between an accused in a criminal case and a person called for interrogation under the Customs Act and FERA. It reiterated that individuals under investigation are not accused within the meaning of Article 20(3) and thus do not have the same rights. The Court cited the Constitution Bench decision in Ramanlal Bhogilal Shah v. D. K. Guha to support this distinction.5. Extension of the Period of Limitation:The Court acknowledged the need to extend the period of limitation for taking certain steps under the statutes due to the pendency of the cases. It directed that the entire period during which the cases were pending in courts should be excluded when computing the period under Section 110 of the Customs Act and other relevant provisions.Conclusion:The Supreme Court allowed Criminal Appeal No. 476 of 1986, overturning the Delhi High Court's decision that permitted the presence of lawyers during interrogation. The other cases were dismissed, affirming the view that individuals under investigation are not entitled to the presence of counsel. The Court also extended the period of limitation for the concerned departments due to the pendency of the cases.