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

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 ... Right to assistance of counsel during departmental interrogation - protection against self incrimination under Article 20(3) - right to life and personal liberty under Article 21 - distinction between an accused and a person summoned for statutory inquiry - just, fair and reasonable test - exclusion of pendency period for computation of limitationRight to assistance of counsel during departmental interrogation - protection against self incrimination under Article 20(3) - distinction between an accused and a person summoned for statutory inquiry - Whether a person questioned under the Customs Act, 1962 or the Foreign Exchange Regulation Act, 1973 is entitled to the presence of his lawyer during departmental interrogation - HELD THAT: - The Court held that the protection in Article 20(3) applies only where the person questioned is, at the relevant time, an accused of an offence. Inquiries under the Customs Act and similar statutes are directed to prevention, adjudication of confiscation and penalties and the collection of duties; a person summoned or questioned in that process is not necessarily an accused within the meaning of Article 20(3). The Constitution Bench precedents in Ramesh Chandra Mehta and Illias were treated as binding and distinguishable from cases like Nandini Satpathy which arose in the context of criminal proceedings where cognizance had been taken. Reliance on foreign authority and minority views did not alter the principle that departmental interrogation does not, as such, confer the right to have counsel present merely because prosecution might later follow.No general right to insist on presence of lawyer during interrogation under the Customs Act or FERA; Article 20(3) protection not attracted merely because the person questioned may be a potential accused.Right to life and personal liberty under Article 21 - just, fair and reasonable test - Whether Article 21 (life and personal liberty) entitles a person summoned for departmental inquiry to insist on counsel being present during questioning - HELD THAT: - The Court rejected the submission that Article 21 guarantees a right to the presence of counsel during non custodial departmental interrogation. Applying the 'just, fair and reasonable' test, the Court found no merit in treating routine summons and questioning by departmental officers as amounting to deprivation of personal liberty that would entitle the person to demand his chosen company or legal adviser at the interrogation. The Court observed that allowing such a right as a general rule would frustrate the object of statutory inquiries and enable persons to impose their preferences on investigative procedure.Article 21 does not confer a general right to have counsel present during interrogation conducted under the Customs Act or FERA.Distinction between an accused and a person summoned for statutory inquiry - protection against self incrimination under Article 20(3) - Whether decisions under the Customs Act and FERA should be treated as on all fours with criminal proceedings so as to attract the protections available to an accused - HELD THAT: - The Court emphasised the established distinction: once criminal proceedings have been initiated (for example, after lodging of an FIR or when the person is an accused on the relevant date) Article 20(3) protection against testimonial compulsion applies, and limited relief (not to answer self incriminating questions) may be appropriate. But the mere possibility that answers might later be used in prosecution does not convert a departmental inquiry into criminal proceedings for the purpose of Article 20(3). Prior appellate and Constitution Bench authorities were applied to reject the contention that persons questioned under the statutory enquiring provisions are ipso facto entitled to the rights of an accused.The protections available to an accused in criminal proceedings are not automatically available to a person summoned for statutory inquiry; only when a person is, on the relevant occasion, an accused will Article 20(3) protections apply.Exclusion of pendency period for computation of limitation - Whether time during which these matters remained pending in court is to be excluded while computing periods of limitation under section 110 of the Customs Act and other relevant provisions - HELD THAT: - Having regard to the pendency of these proceedings in the High Courts and this Court and the stays that were in place, the Court accepted the Union of India's submission that the entire period for which the cases remained pending in the courts should be excluded for the purpose of computing limitation under the Customs Act and other relevant statutory provisions. The exclusion was directed because the delays were attributable to litigation and stayed proceedings, not to the Departments.The period during which the matters remained pending in the High Courts and this Court is to be excluded while computing limitation under the Customs Act and other relevant statutes.Final Conclusion: The Supreme Court allowed Criminal Appeal No. 476 of 1986 insofar as it reversed the Delhi High Court's ruling permitting the presence of lawyers during interrogation under FERA; other appeals arising under the Customs Act/FERA were dismissed. The Court clarified that departmental inquiries do not confer a general right to counsel under Articles 20(3) or 21 unless the person is, on the relevant occasion, an accused, and directed exclusion of the pendency period from limitation computations. 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.