TaxTMI 
TaxTMI 
2023 (5) TMI 1158
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....ECIR/HQ/14/2017, in as much as the Ld. Special Court has directed at Para 26 of the impugned order that "during the time of enquiry/interrogation from the accused, one Advocate of the accused shall be allowed to remain present at a safe distance where from where he can see the accused but not hear him". 2. This Court vide order dated 03.06.2022 has passed the detailed order which is reproduced as below: "1. This petition is filed with the following prayer:- "a) Set aside the impugned direction in order dated 31.05.2022 passed by the Ld. Addl. Sessions Judge/Special Judge (PC Act), CBI-24 (MPs/MLAs Cases) RADC, New Delhi in M.No.71/2022 and 72/2022, ECIR/HQ/14/2017, in as much as the Ld. Special Court has directed at Par....
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....s constitutional right under Article 21 shall be violated. The Court held large majority of persons connected with illegal trade and evasion of taxes and duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of but that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. 7. It was further held the purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities are of the view....
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....also not entitled to assistance of a lawyer at the time of recording of his statement under Section 108 of the Customs Act. 9. In Ramesh Chandra Mehta vs. State of West Bengal (1969) 2 SCR 461, more specifically para 14 which is as under: "14. xxx xxxx In Kathi Kalu Oghad's case the Court merely set out the principles in the light of the effect of a formal accusation on a person, viz., that he stands in the character of an accused person at the time when he makes the statement. Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an Officer competent to investigate it, or when a complaint is made relating to the commission of an of....
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.... of India and Others passed in W.P.(Civil) 389/2010. However, these judgments did not consider Poolpandi's case (supra). Reference was though made to Assistant Director (PMLA) Directorate of Enforcement vs. Gagan Dhawan SLP (CRL.) Diary No. 36376/2017 but it was primarily a consent order, as is evident from his first sentence of page 21 of the compilation of the respondent. 12. Reference was also made to Rohit Wason vs. Additional Director General Directorate of Revenue Intelligence and Ors. W.P.(Crl.) 342/2019, pronounced in February, 2019 but in view of Sandeep Jain vs Additional Director, DRI, Review Petition No.387/2019 in W.P. (C) No.9561/2019 decided on 10.12.2019; the law in Rohit Wason (supra) cannot hold the field. Even ot....
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....ld the apprehension of coercive measures being employed need to be real and like so that the principle of presence of an advocate, at visible, but not audible distance be applied. Sandeep Jain (supra) has relied upon Poolpandi case and have also dealt with Birender Pandey vs. UOI in W.P.(CRL.) No.28/2012 and held the presence of the advocate was allowed in Birender Kumar Pandey (supra) during the recording the statement under Section 108 of the Act only because the petitioner therein was apprehensive that coercive attempts can be made to extort confession from them. Sandeep Jain (supra) rather went on to say if a litigant in a particular case is able to produce credible material to indicate the real and live apprehension of a possible threa....