TaxTMI 
TaxTMI 
2011 (7) TMI 910
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....the Directorate of Revenue Intelligence (for short "DRI") Hyderabad, raided the premises of M/s. Hy-Gro Chemicals Pharmatek Private Ltd. and found a shortage of 250 kgs of Dextropropoxyphene Hydrochloride (DPP HCL). DPP HCL is a manufactured narcotic drug as specified in Government of India's notification S.O. 826(E), dated November 14, 1985, at Serial no. 87. 4. C.K. Bishnoi (accused no. 1) and P.V. Satyanarayana Raju (accused no. 2), the Managing Director and the Production Manager, respectively, of M/s. Hy-Gro Chemicals Pharmatek Private Ltd., admitted that the drug was clandestinely cleared to M/s. J.K. Pharma Agencies, New Delhi, of which the respondent, Jugal Kishore Samra and his brother, Ramesh Kumar Samra (accused no. 3) happen to be the partners. On the next day, i.e., July 21, 2006, a search was carried out at the Cargo Complex of the Indira Gandhi International Airport, New Delhi, and five drums containing DPP HCL were discovered. On examination of the cargo it was found that the contraband was manufactured by M/s. Hy-Gro Chemicals Pharmatek Pvt. Ltd. and was sent to M/s. J.K. Pharma Agencies by wrongly declaring the consignment as 5-Amino Salicylic Acid. The Di....
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....udge dated December 1, 2006, the appellant moved the Andhra Pradesh High Court in Crl. M.P. No. 5772 of 2006 praying for cancellation of the anticipatory bail granted to the respondent. The High Court found no merit in the petition and dismissed it by order dated January 31, 2007. 9. Here it may be noted that on the same day, i.e. January 31, 2007, another bench of the Andhra Pradesh High Court allowed another petition (Crl. M.P. No. 5880 of 2006) filed by the appellant and cancelled the bail granted to the respondent's brother, Ramesh Samra by the Metropolitan Sessions Judge on December 19, 2006. Challenging the order of the High Court, however, Ramesh Kumar Samra, came to this Court in SLP (Crl.) No. 1077/07. The special leave petition was allowed and by order dated December 10, 2009 this Court set aside the order of the High Court. The bail of Ramesh Kumar Samra too was, thus, restored. 10. Coming back to the case of the respondent, aggrieved by the order of the Metropolitan Sessions Judge dated December 15, 2006 directing for the respondent's interrogation to take place only in presence of his lawyer, the appellant sought to challenge it in revision before the H....
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....tion can take place only in presence of his lawyer. In support of the submission he placed great reliance on a decision by a bench of three judges of this Court in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424. 13. Nandini Satpathy, a former Chief Minister of the State of Orissa was named as one of the accused in a case registered under Sections 5(2) read with Section 5(1)(d) & (e) of the Prevention of Corruption Act, 1947, and under Sections 161, 165 and 120B and 109 of the Penal Code on the allegation of amassing assets disproportionate to her known and licit sources of income. For interrogation in connection with that case she was sent a long questionnaire along with summons to appear before the investigating officer on the fixed date and time and to answer those questions. She did not appear before the investigating officer as required by the summons where-upon the investigating officer filed a complaint against her under Section 179 of the Penal Code. The Sub-Divisional Judicial Magistrate took cognizance of the offence and issued process against her. Questioning the order of the magistrate as violative of her right to silence she challenged it first before the High ....
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....to read 'compelled testimony' as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like-not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes 'compelled testimony', violative of Article 20(3)." 17. It may be mentioned here that in holding, "the prohibitive sweep of Article 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only" the decision in Nandini Satpathy apparently went against two earlier constitution bench decisions of this Court in Ramesh Chandra M....
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....sisted that if an accused person asks for lawyer's assistance, at the stage of interrogation, it shall be granted before commencing or continuing with the questioning. We think that Article 20(3) and Article 22(1) may, in a way, be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined. Overreaching Article 20(3) and Section 161(2) will be obviated by this requirement. We do not lay down that the police must secure the services of a lawyer. That will lead to 'police-station-lawyer' system, an abuse which breeds other vices. But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will, was the project. 64. Not that a lawyer's presence is a panacea for all problems of involuntary self-crimination, for he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried, caution his c....
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....itness against himself. It does not refer to the hypothetical person who may in the future be discovered to have been guilty of some offence. In Ramesh Chandra Mehta case, the appellant was searched at the Calcutta Airport and diamonds and jewelleries of substantial value were found on his person as also currency notes in a suitcase with him, and in pursuance to a statement made by him more pearls and jewellery were recovered from different places. He was charged with offences under the Sea Customs Act. During the trial, reliance was placed on his confessional statements made before the Customs authorities, which was objected to on the ground that the same were inadmissible in evidence inter alia in view of the provisions of Article 20(3). While rejecting the objection, the Supreme Court held that in order that the guarantee against testimonial compulsion incorporated in Article 20(3) may be claimed by a person, it has to be established that when he made the statement in question, he was a person accused of an offence. Pointing out to the similar provisions of the Sea Customs Act as in the present Act and referring to the power of a Customs Officer, in an inquiry in connection with....
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....ontinued for a long period it may amount to mental third degree. It was submitted by both Mr. Salve and Mr. Lalit that the present issue should be resolved only by applying the 'just, fair and reasonable test', and Mr. Lalit further added that the point has to be decided in the light of the facts and circumstances obtaining in a particular case and a general rule should not be laid down one way or the other. Mr. Salve urged that when a person is called by the Customs authorities to their office or to any place away from his house, and is subjected to intensive interrogation without the presence of somebody who can aid and advise him, he is bound to get upset, which by itself amounts to loss of liberty. Reference was made by the learned counsel to the minority view in Re Groban, 352 US 330, 1 L Ed 2d 376, declaring that it violates the protection guaranteed by the Constitution for the State to compel a person to appear alone before any law enforcement officer and give testimony in secret against his will." 23. Referring to the facts in Re Groban and the view taken in the minority judgment in the case the decision in Poolpandi observed in paragraph 10 as follows : "10.&ems....
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....in whose cases the High Court had declined to give any such direction. 25. It is seen above that the respondent applied for and got anticipatory bail on the premise that he was not an accused in the case. There was no change in his position or status since the grant of bail till he was summoned to appear before the DRI officers. On the facts of the case, therefore, it is futile to contend that the respondent is entitled, as of right, to the presence of his lawyer at the time of his interrogation in connection with the case. Moreover, the respondent's plea for the presence of his lawyer at the time of his interrogation clearly appears to be in teeth of the decision in Poolpandi. Nonetheless, Mr. Tulsi contended that the respondent's right was recognized by this Court and preserved in Nandini Satpathy and the decision in Poolpandi has no application to the present case. According to Mr. Tulsi, the respondent is summoned for interrogation in connection with a case registered under the NDPS Act, which Mr. Tulsi called a "regular criminal" case, while Poolpandi was a case under the Customs Act and so were the two cases before the constitution bench in Ramesh Chandra Mehta and....