Counsel presence and arrest safeguards under Customs law: limited lawyer access allowed, but prior notice before arrest was refused.

A noticee examined under Section 108 of the Customs Act was permitted to have counsel present at a visible distance but outside hearing distance during examination. The Court rejected a blanket direction requiring three days' prior notice before any arrest, holding that a Section 108 notice did not by itself justify such protection. If arrest is contemplated, the authorities must comply with Section 104 of the Customs Act and the safeguards under Sections 41 and 41A of the Code of Criminal Procedure, 1973.

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Issues: (i) whether a noticee examined under Section 108 of the Customs Act was entitled to have his lawyer present within visible distance but outside audible distance during examination; and (ii) whether the Court should direct prior notice before any arrest of the petitioner and, in the absence of such direction, require compliance with the statutory safeguards governing arrest.

Issue (i): whether a noticee examined under Section 108 of the Customs Act was entitled to have his lawyer present within visible distance but outside audible distance during examination.

Analysis: The request was confined to permitting counsel to remain present in a manner that would not interfere with the examination. The respondents did not oppose that limited protection. The Court granted the request in that restricted form and required the petitioner to appear with his lawyer at a visible distance, but not within hearing distance, during examination under Section 108 of the Customs Act.

Conclusion: The limited presence of counsel was allowed in favour of the petitioner.

Issue (ii): whether the Court should direct prior notice before any arrest of the petitioner and, in the absence of such direction, require compliance with the statutory safeguards governing arrest.

Analysis: The Court considered the scheme of arrest under Section 104 of the Customs Act, the nature of offences under Section 135 of the Customs Act, and the Supreme Court's guidance on arrest safeguards under Sections 41 and 41A of the Code of Criminal Procedure, 1973. It declined to grant a blanket direction for three days' prior notice before arrest, noting that such a direction would be inconsistent with the statutory scheme and that a mere notice under Section 108 did not, by itself, entitle the petitioner to that protection. The Court, however, required strict compliance with Section 104 of the Customs Act and the arrest safeguards under Sections 41 and 41A of the Code of Criminal Procedure, 1973 if arrest was decided upon.

Conclusion: Prior notice before arrest was refused, but statutory arrest safeguards were directed to be followed.

Final Conclusion: The petitioner obtained only limited interim protection regarding lawyer presence during examination, while the request for advance notice of arrest was declined and the matter was kept open for further consideration.

Ratio Decidendi: A mere notice under Section 108 of the Customs Act does not, by itself, justify a blanket direction for prior notice before arrest; any arrest must instead comply with the statutory safeguards and the requirements of Sections 41 and 41A of the Code of Criminal Procedure, 1973, as well as the conditions in Section 104 of the Customs Act.

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