2023 (5) TMI 1388 - HC - Money Laundering

Money Laundering - Presence of advocate (at a safe distance) during the time of enquiry/interrogation from the accused - HELD THAT - In view of the fact that the investigation has already completed and the respondent has chosen not to come forward to contest the same. There is no impediment in confirming the order dated 03-06-2022. Petition allowed.

Summary

Issues:
Presence of lawyer during recording of statements under PMLA.

Analysis:
The core issue in this case was whether the respondent has the right to have his lawyer present during the recording of his statements under section 50 of PMLA, at a safe distance where the lawyer can see but not hear the accused. The court heard arguments from both sides and considered various judgments on the matter.

In Poolpandi and Others v. Superintendent, Central Excise and Others, the court emphasized that the presence of a lawyer during questioning in cases related to illegal trade and evasion of taxes is not a constitutional right. The court highlighted that the purpose of the enquiry under customs and similar statutes would be compromised if individuals were allowed the company of their choice during interrogation.

Referring to Sudhir Gulati v. Union of India, the court clarified that while a person cannot be compelled to be a witness against himself, the scope of the offence under the FIR and the scope of the enquiry under the Customs Act are different. The court held that the petitioner was not entitled to the assistance of a lawyer during the recording of his statement under section 108 of the Customs Act.

Moreover, in Ramesh Chandra Mehta v. State of West Bengal, the court discussed the principles related to the formal accusation of a person and the circumstances under which a person stands as an accused. The court highlighted the importance of the lodging of a First Information Report against an individual in determining their status as an accused.

The court also considered various other judgments cited by both parties, including cases like Anil Vasantrao Deshmukh v. Directorate of Enforcement, which discussed the right to have a lawyer present during questioning by enforcement officers. The court analyzed the different perspectives presented in these cases and ultimately concluded that in the absence of any FIR or complaint against the respondent, he could not claim the presence of his lawyers during the recording of his statement.

Based on the arguments and legal precedents, the court held that the respondent did not have a right to the presence of his lawyers during the recording of his statement. The court emphasized that the recording was videographed and audiographed to prevent coercion or threats. As there was no real apprehension of coercion in this case, the court stayed the impugned direction in the order dated 31-05-2022, ultimately allowing the petition in terms of the order dated 03-06-2022.

In conclusion, the court disposed of the petition, considering that the investigation had been completed, the prosecution complaint filed, and the respondent had chosen not to contest the matter.