1986 (2) TMI 292 - HC - Companies Law

Issues Involved:
1. Right to have an advocate present during interrogation under Section 40 of the Foreign Exchange Regulation Act, 1973.
2. Applicability of Article 22(1) of the Constitution of India to suspects under the Foreign Exchange Regulation Act.
3. Comparison of safeguards available under the Code of Criminal Procedure and the Foreign Exchange Regulation Act.
4. Judicial precedents and their relevance to the case.
5. Role and limitations of an advocate during interrogation.

Issue-Wise Detailed Analysis:

1. Right to have an advocate present during interrogation under Section 40 of the Foreign Exchange Regulation Act, 1973:
The central question in this writ petition is whether a person summoned under Section 40 of the Foreign Exchange Regulation Act, 1973 (FERA), can claim the right to have his advocate present during interrogation by the Enforcement Directorate. The petitioner, Abdul Rajak Haji Mohammed, was summoned and requested the presence of his advocate during interrogation, which was denied by the Enforcement Directorate and subsequently by the Sessions Judge.

2. Applicability of Article 22(1) of the Constitution of India to suspects under the Foreign Exchange Regulation Act:
The petitioner's counsel argued that the right to have an advocate present during interrogation is implied under Article 22(1) of the Constitution, which states that no person who is arrested shall be denied the right to consult and be defended by a legal practitioner of his choice. The Supreme Court's observations in Nandini Satpathy v. P. L. Dani, AIR 1978 SC 1025, were cited, emphasizing that the right to consult an advocate should extend to suspects undergoing near-custodial interrogation, even if not formally arrested.

3. Comparison of safeguards available under the Code of Criminal Procedure and the Foreign Exchange Regulation Act:
The petitioner's counsel highlighted that the safeguards available to accused persons under the Code of Criminal Procedure (CrPC) and the Evidence Act, such as the inadmissibility of statements recorded by police officers (Sections 161, 162, and 163 of CrPC and Section 25 of the Evidence Act), are not available under FERA. The absence of these safeguards necessitates the presence of an advocate to ensure that statements or confessions made during interrogation are not obtained through coercion or undue pressure.

4. Judicial precedents and their relevance to the case:
The judgment referenced several precedents:
- Nandini Satpathy v. P. L. Dani: The Supreme Court held that the right to consult an advocate extends to the stage of police interrogation and is fundamental to the rule of law.
- K. T. Advani v. State: The Delhi High Court held that the right to the presence of counsel during interrogation under FERA is implicit, as the absence of such a right would render the procedure unjust, unfair, and unreasonable.
- Ramesh Chandra Mehta v. State of West Bengal: The Supreme Court held that customs officers are not police officers, and statements made to them are admissible in evidence.
- Percy Rustomji Basta v. State of Maharashtra: The Supreme Court reiterated that customs officers are not police officers, and statements made during their enquiry are admissible.

5. Role and limitations of an advocate during interrogation:
The court concluded that while an advocate's presence is permissible, their role should be limited to being a silent spectator. The advocate should not interrupt or object during the interrogation but may record objections in writing after the interrogation concludes. This balance ensures that the interrogation proceeds smoothly without converting it into a quasi-judicial proceeding filled with interruptions.

Conclusion:
The High Court ruled in favor of the petitioner, setting aside the Sessions Judge's order and allowing the presence of the petitioner's advocate during interrogation under specified conditions. The advocate must sit behind the suspect at a distance to avoid promptings and can only submit written objections post-interrogation. This decision aligns with the constitutional protections under Article 22(1) and ensures that the interrogation process remains just, fair, and reasonable.

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