2022 (8) TMI 724 - HC - Customs

Court permits advocate presence during interrogation to protect rights, orders video recording.

The court allowed the writ petitions seeking the presence of the petitioners' advocate during interrogation by the Directorate of Revenue Intelligence. ... Right of an examinee summoned under Section 108 of the Customs Act to have his advocate present during interrogation within visible but beyond hearing distance - Videography of interrogation proceedings - Statements recorded under Section 108 treated as judicial proceedings for evidentiary consequencesRight of an examinee summoned under Section 108 of the Customs Act to have his advocate present during interrogation within visible but beyond hearing distance - Allegation-based reasonable apprehension justifying presence of counsel - Whether the petitioners are entitled to have their advocate present at a visible but beyond hearing distance during interrogation by officers of the DRI pursuant to summons under Section 108 of the Customs Act. - HELD THAT: - The Court applied the principle in Vijay Sajnani to permit an advocate to be present within visible distance but beyond hearing range during interrogation of persons summoned under Section 108 of the Customs Act. The petitioners relied on specific allegations that their business associate was beaten and coerced into making statements, which the Court found raised a reasonable apprehension of similar treatment. While the respondent relied on authority disallowing counsel during such examination, the Court considered the allegations and the Supreme Court's guidance in Vijay Sajnani and concluded that, in the circumstances of this case, the relief should be granted to allay the petitioners' apprehensions and protect fairness of the process. [Paras 13, 14]Petitioners to be interrogated in the presence of an advocate positioned at a visible but not audible distance, in accordance with the Vijay Sajnani direction.Videography of interrogation proceedings - Recording of proceedings for transparency and preservation of record - Whether the interrogation proceedings should be videographed. - HELD THAT: - Relying on directions of the Supreme Court in related jurisprudence, the Court directed that the interrogation proceedings be videographed to ensure transparency and to preserve an objective record of the examination. This direction was made as an ancillary measure alongside permitting the presence of counsel, to further safeguard the rights of the examinees and the integrity of the investigation. [Paras 14]Interrogation proceedings shall be videographed in terms of the Supreme Court's orders referenced by the Court.Final Conclusion: Writ petitions allowed: petitioners shall be interrogated by DRI officers in the presence of an advocate seated at a visible but not audible distance, and the interrogation proceedings shall be videographed; petitions disposed of accordingly. Issues:1. Petitioners seeking a writ of Mandamus for the presence of their advocate during interrogation.2. Allegations of coercion and threat during investigation by the Directorate of Revenue Intelligence.3. Dispute over the necessity of the advocate's presence during interrogation.4. Comparison of judgments regarding the presence of a lawyer during questioning.5. Decision on allowing the presence of an advocate during interrogation.Issue 1: Petitioners seeking a writ of Mandamus for the presence of their advocate during interrogation:The petitioners, engaged in liquor import and trading businesses, sought a writ of Mandamus to permit their advocate's presence during interrogation by the Directorate of Revenue Intelligence (DRI). They expressed apprehension regarding potential coercive actions during the investigation, emphasizing the importance of legal representation during the process.Issue 2: Allegations of coercion and threat during investigation by the Directorate of Revenue Intelligence:The petitioners alleged that their business associate was physically assaulted and coerced by DRI officers during the investigation. This led to their fear of facing similar treatment and the potential impact of statements recorded under Section 108 of the Customs Act on their defense in future proceedings initiated by the respondent.Issue 3: Dispute over the necessity of the advocate's presence during interrogation:While the petitioners argued for the presence of their counsel during interrogation, the respondent opposed, citing voluntary and cordial statement recordings under Section 108 of the Act. The respondent contended that the petitioners' apprehensions were baseless and emphasized the legality of the proceedings conducted by the DRI officers.Issue 4: Comparison of judgments regarding the presence of a lawyer during questioning:The petitioners relied on a Supreme Court judgment allowing the presence of a lawyer during interrogation, emphasizing the need for legal representation to safeguard their rights. In contrast, the respondent cited a different judgment clarifying that the presence of a lawyer during questioning by officers was not necessary, highlighting the distinction based on the nature of the investigating authorities.Issue 5: Decision on allowing the presence of an advocate during interrogation:Considering the serious allegations of coercion and the petitioners' reasonable apprehension of physical harm during interrogation, the court allowed the writ petitions. It directed that the petitioners be interrogated in the presence of an advocate at a visible but not audible distance, aligning with the Supreme Court's previous rulings on similar matters. The court also ordered the proceedings to be video-graphed for transparency, ultimately granting the relief sought by the petitioners.This detailed analysis of the judgment highlights the legal arguments, conflicting positions, and the final decision rendered by the court, addressing the key issues raised in the case.