2023 (4) TMI 1227 - HC - GST

Advocate allowed to remain visible but not audible during Section 108 customs interrogation proceedings

Bombay HC allowed petition seeking advocate's presence during customs interrogation. Following SC precedent in Vijay Sajnani vs. Union of India, court ... Seeking permission for presence of the Advocate during the interrogation and recording of statements at visible but not audible distance and for video-graphing the interrogation - HELD THAT:- In the case of Vijay Sajnani vs. Union of India & Ors. [2012 (4) TMI 706 - SUPREME COURT], the Apex Court has directed that during the interrogation of the Petitioners therein, their counsel would be allowed to be present within visible distance but beyond hearing range. The Apex Court while disposing of the writ petition directed that in similar cases, in the event the person (s) summoned under Section 108 of the Customs Act, 1962, wish(es) for similar orders, he (they) may apply to the custom authorities concerned and a similar provision may be made for his/their interrogation in the present of the learned counse - Subsequent decisions of the Apex Court, on which the reliance has been placed by the learned counsel for the Petitioner, has permitted the presence of the Advocate during the interrogation of the Petitioner at visible but not audible distance. The decisions of the other High Courts have taken a view that the presence of lawyer cannot be insisted as a matter of right. However, the decisions have a persuasive value and is not binding upon this Court. The direction which has been sought by the Petitioners as regards the presence of the lawyer at visible but not audible distance is an aspect of fair investigation and we do not find any reason to take a different view from the view taken by the Coordinate Benches of this Court - it is not deemed fit to grant the relief of video-graphing. The presence of the Petitioners’ advocate during the interrogation of the Petitioners is permitted at a visible but not audible distance - petition allowed. Issues involved:The petition seeks direction for the presence of the Advocate during interrogation and recording of statements at visible but not audible distance and for video-graphing the interrogation.Summary:Issue 1: Presence of Advocate during InterrogationThe Petitioners sought direction for the presence of their Advocate during interrogation at visible but not audible distance and for video-graphing the interrogation. The Petitioners' counsel argued that various decisions of the Apex Court and the High Court have permitted the presence of Advocates during interrogation. The Respondent contended that the presence of lawyers during interrogation cannot be claimed as a matter of right and may only be permitted in exceptional circumstances. The Court referred to previous judgments allowing the presence of lawyers at visible but not audible distance during interrogation and held that it is an aspect of fair investigation. The Court granted the petition, allowing the presence of the Petitioners' advocate at a visible but not audible distance during interrogation, emphasizing that the Petitioners must ensure the presence of their lawyer for interrogation.Issue 2: Video-graphing of InterrogationThe Petitioners also requested video-graphing of the interrogation, but the Court did not find it fit to grant this relief.Separate Judgment:The High Court, comprising of REVATI MOHITE DERE AND SHARMILA U. DESHMUKH, JJ., made the rule absolute in favor of the Petitioners, permitting the presence of their advocate during interrogation at a visible but not audible distance. The Court emphasized that the Petitioners must ensure the presence of their lawyer during interrogation and that non-availability of the lawyer cannot be a ground to seek exemption from interrogation.