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2019 (4) TMI 2031 - HC - Money LaunderingSeeking direction to first respondent not to cause any physical mental or verbal harassment to the petitioner during the pendency of investigation in the proceedings - also direction is sought against the first respondent to re-record the statement to be tendered under Section 50 of the Prevention of Money Laundering Act and conduct the proceedings in camera and in the presence of an advocate appointed by the petitioner - Whether the presence of a lawyer is required at the time of enquiry as sought for by this petitioner? - HELD THAT - Section 50 make it clear that powers are conferred on the authorities to summon persons whose attendance is necessary to give evidence or produce any record during the course of investigation or proceedings and such persons so summoned have to appear before the Officer and to state the truth of the subject of the summons. Such authority is also empowered to impound records. Therefore there is no quarrel about the competency and power conferred on such authority to summon a person and enquire. Sub-Section 4 of Section 50 specifically indicates that every proceedings under Sub-Sections 2 and 3 shall be deemed to be a judicial proceedings within the meaning of Section 193 and section 228 of the Indian Penal Code. Therefore it is apparent that summoning a person and enquiring him under section 50 of the said Act is in the nature of a judicial proceedings within the meaning of Section 193 and Section 228 of the Indian Penal Code - it is apparent that the proceedings under Sub-Sections 2 and 3 of Section 50 of the said Act is a judicial proceedings before the Court of justice though such proceedings is not taking place before the Court of Justice. The respondents have categorically admitted in the counter that the persons who were summoned under Section 50 of the said Act is only for the purpose of collecting evidence and to know the complicity of the persons so summoned to the crime and that only after collecting evidence and statements from the persons so summoned and if it is established after completion of investigation that the person is involved in the crime of Money Laundering he will be treated as an accused and prosecution complaint will be filed against him. Therefore there is no dispute to the fact that at the time of making an enquiry under Sections 50(2) and 50(3) of the said Act the persons so summoned unless are found to have been involved in the crime of Money Laundering cannot be treated as an accused at the stage of enquiry itself. Further it is to be noted that Section 30 of Advocates Act 1961 which deals with right of Advocate to practise specifically entitles every Advocate whose name is entered in the State roll as of right to practise including before any person legally authorised to take evidence. When such being the right conferred on the Advocate the respondents cannot curtail such right if the petitioner seeks such assistance. But at the same time it should also be borne in mind that presence of such lawyer should not be a hindrance to the enquiry either by his interference with queries or by his prompting the person who is being examined to say this way or that way. If that is permitted then it would defeat the very object and purpose of enquiry. The petitioner must be permitted to have his choice of lawyer to be present along with him at the time of interrogation/enquiry however by making it clear that such lawyer should sit within a visible distance but beyond hearing distance. Whether the statement already recorded from the petitioner s have to be eschewed and consequently whether the first respondent should be directed to re-record the statement from the petitioner in the presence of an Advocate? - HELD THAT - When retraction has already taken place the law will have to take its own course to decide about the veracity of the statement already obtained from the petitioner and the effect of such retraction at the appropriate time during the proceedings. However if the petitioner needs to appear for any further enquiry in view of the facts and circumstances and the findings rendered by this Court the first respondent shall permit the lawyer to be present with the petitioner at the time of interrogation however making it clear that such lawyer should be made to sit at visible distance at the back of the petitioner but beyond hearing distance from the place of interrogation. In other words the seating arrangement of the petitioner and his lawyer should be made in such a way that both should not have eye contact with each other. Petition disposed off.
Issues Involved:
1. Alleged harassment during investigation. 2. Request for re-recording of statements under Section 50 of the Prevention of Money Laundering Act (PMLA) in the presence of an advocate. Detailed Analysis: 1. Alleged Harassment During Investigation: The petitioner, a Director in M/s. Best & Crompton Engineering Projects Limited, alleged that during an investigation by the Enforcement Directorate (ED) under the Prevention of Money Laundering Act (PMLA), he faced physical, mental, and verbal harassment. The petitioner claimed that the ED officials compelled him to make statements against certain individuals unrelated to the ongoing inquiry, and upon refusal, he was subjected to third-degree torture. The petitioner retracted his coerced statement through a letter dated 06.12.2018, asserting that such actions by the ED were illegal and unconstitutional, violating Article 21 of the Constitution of India and the PMLA. 2. Request for Re-recording of Statements: The petitioner sought a Mandamus directing the ED to re-record his statement under Section 50 of the PMLA in camera and in the presence of his advocate. The petitioner argued that the presence of a lawyer during such judicial proceedings is necessary to prevent any form of harassment and to ensure that his constitutional rights under Articles 20 and 22 are protected. The petitioner cited several legal precedents to support his claim, emphasizing the necessity of a lawyer’s presence to avoid involuntary self-incrimination and to ensure fair treatment during the investigation. Court's Findings and Directions: Maintainability of Writ Petitions: The court noted that the writ petitions were not filed against the summons issued under Section 50 of the PMLA but sought to prevent harassment and ensure the presence of a lawyer during the investigation. Therefore, the court held that the writ petitions were maintainable. Presence of Lawyer During Investigation: The court extensively analyzed the scope of Section 50 of the PMLA, which confers powers on the authorities to summon and examine persons during investigations. The court referred to various judicial precedents, including decisions from the Gujarat High Court and the Supreme Court, which recognized the right of a person to have a lawyer present during interrogation to prevent coercion and ensure fair treatment. The court agreed with the view that the presence of a lawyer should be allowed, provided the lawyer sits at a visible distance but beyond hearing distance to avoid interference with the investigation. Re-recording of Statements: The court did not find it necessary to direct the re-recording of the petitioner’s statements, as the petitioner had already retracted his coerced statement. The court emphasized that the veracity of the retracted statement would be determined during the appropriate legal proceedings. Final Directions: The court directed that if the petitioner is required to appear for further inquiry, he should be allowed to have his lawyer present. The lawyer should sit at a visible distance but beyond hearing distance from the place of interrogation to ensure that there is no eye contact or interference. This arrangement aims to balance the need for a fair investigation with the petitioner’s right to legal assistance. Conclusion: The court disposed of the writ petitions with directions to ensure the presence of a lawyer during the petitioner’s interrogation, thus safeguarding the petitioner’s constitutional rights while allowing the investigation to proceed without undue interference. No costs were imposed, and connected miscellaneous petitions were closed.
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