TaxTMI 
TaxTMI 
2017 (2) TMI 1
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....6, has prayed for the following reliefs: "17a) Issue appropriate directions to the respondents to allow the presence of petitioner's advocate at a visible but not audible distance during the course of interrogation and/or recording of the statement of the petitioner in case arising out of ECIR NO.01/STSZO2016, wherein, the petitioner has summoned by the respondents. b) Pending admission, final hearing and disposal of the instant writ petition, this Hon'ble Court may be pleased to stay all further proceedings arising out of summons issued to the petitioner and the respondent No.2 may further be restrained from taking any coercive action/steps against the petitioner. c) Issue any other order or direction, which this Hon'ble Court may deem fit and appropriate in the facts and circumstances of the case, may kindly be passed in fravour of the petitioner. d) Costs of the petitioner be awarded in favour of the petitioner." 3 The facts giving rise to this application may be summarised as under: 3.1 On 28th December 2016, a First Information Report came to be registered with the CBI/ACB/Gandhinagar bearing No. RC0292016A0016 against the applicant herein and others for ....
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....official power and that in the name of interrogation, his client may be subjected to torture. It was further urged that in the absence of the lawyer, the groundwork of false cases for securing conviction of innocent persons is prepared and, therefore, the benefit of presence of the lawyer should not be denied. The learned counsel supported his submissions with reference to the decision of the Apex Court in the case of Smt. Nandini Satpathy vs. P.L. Dani [AIR 1978 SC 1025], in which it was observed that the lawyer's presence is a constitutional claim in some circumstances in our country also, and, in the context of Article 20(3) and Article 22(1), is an assurance of awareness and observance of the right to silence. Article 20(3) and Article 22(1) may, in a way, be telescoped by making it prudent for the authorities to permit the advocate of the accused, if there be one, to be present at the time he is interrogated. Overreaching Article 20(3) will be obviated by this requirement. If an accused person expresses the wish to have his lawyer by his side when his interrogation goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary sel....
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.... date, and therefore, the protection available under Section 20(3) of the Constitution of India is not available to the applicant. Mr. Vyas urged that the presence of a lawyer, during interrogation, cannot be permitted as of right. Mr. Vyas relied upon the decision of the Apex Court in the case of Poolpandi vs. Superintendent, Central Excise [AIR 1992 SC 1795], in which it has been observed that the person called for interrogation during investigation by the authorities under the Customs Act or FERA is not an accused, and, therefore, the refusal of presence of a lawyer during the interrogation does not violate Article 20(3) and Article 21 of the Constitution. Mr. Vyas seeks to rely upon the following averments made in the affidavitinreply filed on behalf of the respondent No.2: "4 That, summon dated 26.12.2016 was issued to Sh. Jignesh K Bhajiawala asking him to appear on 28.,12.2016. This summon were received by his father Sh. Kishore Bhajiawal. However, neither Sh. Jignesh K Bhajiawala appeared in response to summon issued to him nor he sent any communication to this office. 5 That, second summon dated 30.12.2016 was issued to Shri Jignesh K Bhajiawala asking him to appear on ....
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....heduled Offences in terms of Section 2(1)(y) under the Prevention of Money Laundering Act, 2002. 11 That, the petitioner's claim that all documents have been seized by the IncomeTax Department and hence he is unable to produce the documents before the Department is another excuse adopted by him to avoid appearance as most of the facts are within his knowledge. The seized currency of Rs. 10216000/is in denomination of Rs. 2000/notes which have been issued by Union Government on 09.11.2016 and source of same is very much in knowledge of petitioner. 12 That, the petitioner's allegation that an attempt somehow made to send/serve summons to the petitioner again, once in person and then by post is again without any basis or justification as the correspondences sent to the address on record through person as well as through post was not accepted and refused. The petitioner has therefore exhibited his complete indifference to the law of the land and instead chose to make wild allegations which are totally baseless and meant to derail the investigation which is at a crucial stage. 13 That, the petitioner's allegation that he apprehends some mischief by the respondents is c....
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....in other words, according to Mr. Vyas, in the past, the applicant failed to honour two summons issued by the authority under Section 50 of the Act 2002. 11 Mr. Amin, the learned Public Prosecutor appearing for the State of Gujarat also submitted that there being no merit in this application, the same be rejected. Mr. Amin would submit that the Supreme Court in none of the judgments has laid down any mandate, but only suggested strongly that it would be prudent for the police or any other authority concerned to allow a lawyer where the accused wants to have one at the time of interrogation. According to Mr. Amin, Articles 20(3), 21 and 22 of the Constitution of India will have no application to the facts of this case since the applicant is not an accused. 12 Mr. Amin, the learned Public Prosecutor laid much emphasis on the wordings contained in Section 50(3) of the Act, 2002. According to Mr. Amin, the wording of Section 50(3) of the Act, 2002 confers a discretion on the authorities. He would submit that the emphasis in subsection (3) of Section 50 of the Act, 2002 is escapable which is to the effect that the choice whether the person summoned should attend in person or by an auth....
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....defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twentyfour hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply( a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. a [(4)] No law providing for preventive detention shall authorise the detention of a person for a longer period than two months unless an Advisory Board constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court has reported before the expiration of the said period of two months that there is in its opinion sufficient cause for such detention: Provided that an Advisory Board shall consist of a Chairman and not less than two other members, and the Chairman shall be a serving Judge of the appropriate High Court and the oth....
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.... oath; (c) compelling the production of records; (d) receiving evidence on affidavits; (e) issuing commissions for examination of witnesses and documents; and (f) any other matter which may be prescribed. (2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act. (3) All the persons so summoned shall be bound to attend in person or through authorized agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. (4) Every proceeding under subsections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860). (5) Subject to any rules made in this behalf by the Central Government, any officer referred to in subsection (2) may impound and retain in his custody for such period, as he thinks fit, any records produced be....
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....r. A literal interpretation of this section thus admits of no doubt that it is for the officer to satisfy consistent with the object of summoning the said person whether the person summoned should attend in person or through authorised agent. In this context, it is worthy to note the provisions in Order V, Rule 1, subrule (2) of Civil Procedure Code which reads : "A defendant to whom a summons has been issued under subrule (1) may appear in persons, or by a pleader duly instructed and able to answer all material questions relating to the suit, or by a pleader accompanied by some person able to answer all such questions." This gives an indication that wherever the statute wants to confer an authority on the person summoned to appear through an authorised agent or lawyer the statute specifically provides for the same. But the arguments of the learned counsel, Shri Bobde, is that whenever statute vests discretion with an authority, the discretion has to be exercised consistent with the principles of natural justice. According to the learned counsel, inasmuch as the said subsection vests a discretion with the authority, that automatically creates a right in the person so summone....
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....his own cause, and (b) no man shall be condemned unheard. But the said requirement may be dispensed with either by express words of statute or by necessary implication. True, such exclusion of natural justice by implication must be clear and it should spring from the provisions of the Act., In the decision in Maneka Gandhi's case (1978) 1 SCC 248 : (AIR 1978 SC 597), referred early, at page 291 (of SCC) : (at p. 629 of AIR), it is observed : "Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands........ True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded........ The audi altera....
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....in the said decision held that protection against selfincrimination belong to a person who is accused of an offence and that a person called for questioning during investigation by authorities under the provisions of Customs Act or FER Act being not an accused, refusal to allow the presence of a lawyer is not violative of Art. 20(3) of the Constitution. In this context the observation by the apex Court while dealing with the argument in support of the claim for the presence of lawyer at interrogation relying on the minority judgment in (1957) 352 US 330 is relevant and instructive. In para 10 at page 1799 (of AIR) it is observed : "The learned Judge, accordingly expressed his dissent observing that to compel a person to answer questions at a secret interrogation where he is denied legal assistance and where he is subject to the uncontrolled and invisible exercise of power by Govt. officials, would be unconstitutional. We do not share the apprehension as expressed above in the minority judgment in connection with enquiry and investigation under the Customs Act and other similar statutes of our country. There is no question of whisking away the persons concerned in the cases befor....
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....hile exercising the power of authority under S. 40(3) of the Act. The discretion under S. 40(3) carries with it an obligation to exercise the discretion adhering to the principles of natural justice. If the principles of natural justice stand excluded atleast by implication, then one cannot insist that the said discretion has to be exercised consistent with the principles of natural justice. Therefore, it becomes necessary to consider whether in the context of S. 40(3) of the Act, the principles of natural justice stand excluded. 8. As to the ratio laid down in Poolpandi's case (1992 Cri LJ 2761) (SC), referred early, the main thrust of the argument of Shri Bobde, as indicated, is that S. 40(3) of the Act in the aforesaid perspective was not considered and discussed in the said decision. In appreciating the said argument, it is worthy to note that the principles laid down in the decision in M/s Kesho Ram and Co. v. Union of India, (1989) 3 SCC 151 wherein the Supreme Court held while interpreting Article 141 of the Constitution that once a point is finally decided by the Court it becomes binding and cannot be reopened on the ground that some points have not been raised or con....
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....ce and its application will exclude where the rule itself would lead to injustice and that, the said rule cannot be applied to defeat the ends of justice or to make the law 'lifeless, absurd, stultifying and selfdefeating or plainly contrary to the common sense of the situation'. This decision notes that there are exceptional circumstances and situations where the application of the rule of audi alteram partem is not attracted. The same view is expressed in the decision in State Bank of Patiala v. S. K. Sharma, AIR 1996 SC 1669. In para 32 of the judgment, among other things, it is held : "There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem . In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision." Therefore, when a question is posed as to whether the principles of natural justice has to be applied in a given situation, the Court has to balance the interest of the public State with that of a person who is summoned. In Poolpandi's case (1992 Cri LJ 2761) (SC), this aspect was considered by the....
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....ated, is to expose and contain the exploitation and subversion of the economy of the country. There, the principles of audi alteram partem cannot come to the assistance of such persons who are so summoned." "13. Shri Bhangde, learned counsel, maintained that the claim of the petitioner for presence of a lawyer or company of a person of their choice is not sustainable under S. 40 of the Act unless there is a right in them for the said facility. Such a claim even on the plea of discrimination cannot be sustained unless they show they have a right to enforce. In support of his contention, the learned counsel made reliance on the decision in State of Haryana v. Ram Kumar Mann, (1997) 3 SCC 321 : (1997 AIR SCW 1574). Yet endeavour was made to maintain that even if the person summoned as of right cannot insist presence of a lawyer, he still can make a request for the same, and when made the same has to be considered. Reference was made to the decision in Johney D'Couto v. State of Tamil Nadu, AIR 1988 SC 109 : (1988 Cri LJ 178) in support of the claim for presence of a lawyer drawing parallel to the observation in para 5 of the judgment to the effect that though the provision of th....
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....tends (i) in all Courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise." As per the above section, an investigating officer, being a person not authorised to take evidence, is not a forum before which an advocate has got a right of audience. Learned counsel for the petitioners submits that it is customary on the part of advocates to present bail applications, etc., on behalf of the accused and the right of advocate to appear before the police officers had become recognised. Whatever may be the practice, under the Advocates Act, an advocate is not entitled to any right of audience before any forum other than those set out in S. 30. The Supreme Court in Nandini Satpathi's case, AIR 1978 SC 1025 : (1978 Cri LJ 968), cautions that police station lawyer' system is an abuse which breeds other vices." 24 I shall now proceed to consider whether the discretionary relief should be granted to the applicant or not. 25 In Nandini Satpathy (supra), Krishna Iyer, J. after referri....
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.... realise the presence of a lawyer is seeking for the moon in many cases until a public defender system becomes ubiquitous. The police need not wait more than a reasonable while for an advocate's arrival. But they must invariably warn and record that fact about the right to silence against selfincrimination; and where the accused is literate take his written acknowledgment." Later, in the course of the judgment, the Supreme Court observed as follows :" Our purpose is not to sterilise the police but to clothe the accused with his proper right of silence. Art. 20(3) is not a paper tiger but a provision to police the police and to silence coerced crimination. The dissenting words of Mr. Justice White bear quotation in this context- The Court's duty to assess the consequences of its action is not satisfied by the utterance of the truth that a value of our system of criminal justice is 'to respect the inviolability of the human personality' and to require government to produce the evidence against the accused by its own independent labours. More than the human dignity of the accused are involved; the human personality of others in the society also be preserved. Thus....
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....d, other aspects have remained obscure and unexplored. A flesh flood of demands against selfincriminatory interrogation has risen now when very important persons of yesterday have got caught in the criminal investigation coils of today. And when the big fight forensic battles the small gain by the victory, if any. The fact that the scope of the protection against selfaccusation has not been clarified before in this area makes it necessary for us to take a gentler view in this case, in the interest of justice. Moreover, on our interpretation, the Magistrate, trying the case under S. 179 I.P.C. and in a setting where the accused allegedly has a number of other offence to answer for, will be thrown into a larger enquiry than the simplistic and ordinarily needed. We have declared the law on the thorny constitutional question where the amber light from American rulings and beacon beams from Indian precedents have aided us in our decision. It is quite probable that the very act of directing a woman to come to the police station in violation of S. 160(1) Cr. P.C. may make for tension and negate voluntariness. It is likely that some of the questions are self criminatory. More importantly....
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...." 26 I may also refer to and rely upon a decision of the Calcutta High Court rendered by a learned Single Judge in the case of Mahendra Jain (Patni) vs. Union of India [2003 Criminal Law Journal 1464]. While considering almost an identical issue and also considering the decision of the Supreme Court in the case of Poolpandi (supra), observed in paras 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 as under: "11. In my view, the aforesaid Supreme Court judgment is not similarly placed with the factual aspects of the matters. Certain distinguishing features are given hereunder: (a) In such judgment, it find the authorities have already made out prima facie cases and Criminal appeals are pending in connection thereto. Put in the present case no prima facie case has yet born. Only on the basis of suspicion or conjecture people were brought or likely to be brought in the office to extract evidence. (b) In such judgment, comfort or luxuries and company of choice were the sum and substance of due consideration. But in the present case the treatment towards the petitioners were far from comfort of luxuries or company of choice during the office hours. It is a case of torture in the name o....
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....s given a formal shape of law to give such protection. Thus a concept of the protection of human rights have been developed on the basis of the international covenant of civil and political rights. Article 7 of the same provides no one shall be subjected to torture or to cruel, inhuman, degrading treatment or punishment. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. On 8th January, 1984 an Act was promulgated in our Country following such international convention which is known as protection of Human Rights Act. The ratio of the Supreme Court judgment was restricted during the era when the rigour of FERA (Foreign Exchange Regulation Act) was the policy of the country. Presently the Ministry of Commerce, Government of India introduces various relaxations following economical policy and trend of commercial globalisation. It is universally accepted position. Therefore, the outlook of the authorities in the year 1992 cannot fit in the year 2002. There is sea change in between the two periods. 13. Article 20 of the Constitution of India is made for protection of the person in respect of convict....
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....evade the processes of law; (iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint; (iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. 16. There is no such test. Even thereafter when one has prevented in the office for more than office hours continuously it is as good as arrest to him at the time of interrogation. Hence, although they are not accused in strict sense but, in effect, at par with accused. In such cases Court cannot refrain from interfering with the same. In the case of criminal concept, mens rea would be the guiding factor. As and when persons are prevented from coming out from the office in the name of interrogation for a prolonged period it is clear that such persons were treated at par with accused. Therefore they are entitled to get protection under Article 21 of the Constitution of India in such circumstances. The present case is similar to custodial violence. A judgment reported in (1997) 1 SCC 416 : (1997 Cri LJ 743) (D. K. Basu v. State of W. B. with Ashok K. Johri v. State of U. P. has been cited to establish ....
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....ays of looking into the matters. One way is the right of interrogation and another way is right of human dignity. Therefore it is expected that the authorities should keep a sense of proportion or balance in dealing with the matter. In case of any disbalance Court has every right to justify whether the authority has crossed limit of interogation or whether the petitioners are falsely implicated them in the garb of protection of human right. The affidavit on behalf of the authority is fully of evasive denials. Therefore, whether any torture or third degree or any inhuman method has been applied for the purpose of extracting statements in the name of interrogation cannot be tested nor it can be said that the apprehension and/or allegations are without any basis. It is true to say that the interrogating officers should have appropriate right for the purpose of interrogation but such right should not exceed the limit of the human right. Therefore, a bare denial cannot be an appropriate reply to the charges. The cases of the petitioners are not to stop the summons but to proceed with the summons in the proper manner. Such submission cannot be said to be unfair. What is the difficulty fo....
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....e present policy of the Government does not permit the authorities to behave in such a manner. As has already been said, previously there was a rigour on the part of the authority in respect of interrogation under the Customs Act. But by the introduction of the policy of liberalisation, the Government thought about commercial viability intentionally. I am not for a moment say that interrogation will not be there. But its application should not be in such a manner that a wrong message should not go to the people attached to the commercial activities. If one wants to flout the law a case has to be made out on the basis of an appropriate reason to believe. Such reason to believe cannot be a weapon of fishing out the evidence by taking the person in the informal custody, torturing him for an indefinite period and extracting statements to make an evidence to fit the purpose." 27 I may also refer to a decision of the Delhi High Court in the case of K.T. Advani New Delhi vs. The State, New Delhi [1985 Criminal Law Journal 1325], in which it was held that if a suspect is entitled to presence of counsel in an investigation, governed by the Code of Criminal Procedure, there is nothing in t....
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.... of investigation were made in a case governed by the Code of Criminal Procedure but I see no distinction between the provisions of the Code of Criminal Procedure and of the Foreign Exchange Regulation Act in the matter of right to presence of counsel. If a suspect is entitled to presence of counsel in an investigation, governed by the Code of Criminal Procedure there is nothing in the provisions of the Foreign Exchange Regulation Act, which purport, explicitly or impliedly, to oust such a right. If the right to the presence of counsel be fundamental to the rule of law, it makes little difference if the investigation is one under the Code of Criminal Procedure or independently of it." 28 I shall now look into the various orders of the Supreme Court relied upon by the learned senior counsel appearing for the writ applicant. 29 In Vijay Sajnani (supra), the Supreme Court observed as under: "1. CRLMP. No.10117 of 2012, has been filed in Writ Petition(Crl.)No.29 of 2012, inter alia for interim directions to allow the learned counsel of the petitioners to be present at a visible distance, but beyond hearing range, at the time of interrogation of the petitioners by the custom authori....
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....on similar applications before. The petitioners have been served with notice under Section 108 of the Customs Act, 1962, to appear before the concerned customs authority for interrogation in connection with certain matters. The petitioners are apprehensive that coercive attempts may be made to extort confessions from them. Accordingly, they have prayed that the interrogation of the petitioners be conducted not in the immediate presence of their lawyer, but that the petitioners' lawyer should be allowed to be present during the interrogation, within a visible but beyond hearing distance. The prayer has been opposed by the learned additional Solicitor General, Mr. P.P. Malhotra, who has brought to our notice the decision of a Three Judges Bench in the case of Poolpandi and others v. Superintendent, Central Excise and others (1992) 3 SCC 259. Mr. Malhotra pointed out that the very first paragraph of the said judgment mentions that the common question arising in the said case before their Lordships was the stand taken by the petitioners that they were entitled to the presence of their lawyers when they were being questioned during the interrogation under the provisions of the C....
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....allow the criminal miscellaneous petition and direct that the petitioners' advocate should be allowed to be present during the interrogation of the petitioners' but that he should be made to sit at a distance beyond hearing range, but within visible range and the lawyer must be prepared to be present whenever the petitioners are called upon to attend such interrogation. The criminal miscellaneous petition is disposed of accordingly." 31 In Nayasa Exports Pvt Ltd (supra), the Delhi High Court passed the following order on 16th February 2010: "1. Learned counsel for the Petitioner states that the Petitioner is prepared to appear before the Additional Director General, Directorate of Revenue Intelligence at Mumbai with all relevant records at 3 pm on 19th February 2010. 2. The lawyer for the Petitioner will be allowed to be present within seeing distance but beyond hearing distance, during the interrogation of the Petitioner. 3. In view of the above directions, no further reliefs are sought for in this petition and it is disposed of accordingly. 4. Order dasti to the parties." 32 In Sri Parkash Aggarwal (supra), the Supreme Court passed the following order on 4th ....
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.... Petition was taken up for consideration, certain submissions were made which can be incorporated by us by way of an interim arrangement, pending final disposal of the Writ Petition. Admittedly, certain goods have been retained by the Customs authorities in respect of which a case had already been commenced against the petitioners. The same forms the subject matter of the Writ petition in which we had issued notice on 25th November, 2010 and had also in a subsequent order dated 29th November, 2010, requested Mr. Dey to take instructions with regard to the interim reliefs, prayed for in prayers (b) and (c) of the Writ Petition. Incidentally,in the companion matter, being Writ Petition (Crl.) No.123/2010, it was ordered not to arrest the petitioner during the pendency of the Writ petition. In continuation of the aforesaid interim order, we also direct that the examination of the live consignments which are under seizure and recording of statements of all petitioners under Section 108 of the Customs Act, 1962, shall be taken up by the Customs Department and recording of statements under Section 108 would be commenced from 8th December, 2010 and will be completed on or before 15th ....
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....mmons issued by the Directorate of Revenue Intelligence. However, the Lawyer should be within the hearing distance as stipulated in the judgments. 3 Since the clarification as above has been given, nothing survives in this Writ petition and it is disposed of." 36 What is discernible from the decision of the Supreme Court in the case of Poolpandi (supra) is that whenever a person is called upon for questioning during investigation by the authorities under the provision of the Customs Act, he is not accused . He cannot, therefore, claim that in view of the possibility of his being made an accused in future, he is entitled to the presence of a lawyer when he is questioned. Refusal to allow the presence of lawyer in such case would not be violative of Article 20(3) nor can it be said that when a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of the lawyer or his friends, his constitutional right under Art. 21 would be violated. It cannot be said that if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering the questions it amounts to mental tortur....