2020 (8) TMI 567 - HC - GST

Illegal detention of applicant for three consecutive days - investigation not conducted in accordance of law - Presence of lawyer during investigation - HELD THAT - Reliance placed in the case of Hon ble Supreme Court titled SENIOR INTELLIGENCE OFFICER VERSUS JUGAL KISHORE SAMRA 2011 (7) TMI 910 - SUPREME COURT . The said judgment was passed because of special facts and circumstances of the said case as respondent i.e. accused Jugal Kishore Samra was suffering from heart disease and his medical condition was considered by the Ld. Sessions Judge while passing the order. The said case is, thus, distinguishable on the basis of facts and circumstances stated therein. So far as apprehension of petitioner that he may be physically assaulted or manhandled is concerned, this Court is of the opinion that it is a well settled law now that no inquiry/ investigating officer has a right to use any method which is not approved by law to extract information from a witness/ suspect during examination and in case it is so done, no one can be allowed to break the law with impunity and has to face the consequences of his action. No grounds are made out to allow the presence of the Advocate while questioning or examination by the officers of the respondents - Application dismissed.

Summary

Issues:
1. Petition filed under Article 226 of the Constitution for safeguarding rights and monitoring investigation.
2. Interim application for direction on conducting investigation and presence of lawyer.

Analysis:

Issue 1: The petitioner filed a petition under Article 226 of the Constitution seeking the issuance of a writ to protect the right to life, liberty, dignity, and fair investigation. The petitioner requested the court to examine the illegal acts of the CGST officials and monitor the investigation. The petitioner's counsel urged for the court to call for investigation records and monitor the case until the issuance of Show Cause Notice. The respondents accepted notice and sought time to file a status report, which was directed to be submitted before the next hearing date.

Issue 2: An interim application was filed for directions to conduct the investigation without coercive means and to allow the presence of a lawyer during the interrogation. The petitioner alleged illegal detention and coercion during interrogation. The respondents contended that the investigation was being conducted lawfully and cited judgments to support their position. The court referred to relevant judgments, including one by the Hon'ble Supreme Court, which held that the presence of a lawyer during questioning by Customs Officers is not allowed. The court emphasized that no method not approved by law should be used during interrogation, and the respondents assured that the investigation would be conducted lawfully. Consequently, the court dismissed the application for the presence of an advocate during questioning based on the law laid down by the Supreme Court and the assurances given by the respondents.