1986 (2) TMI 220 - HC - FEMA

Issues Involved:

1. Right to have an Advocate present during interrogation under Section 40 of the Foreign Exchange Regulation Act (FERA).
2. Applicability of Article 22(1) of the Constitution of India to non-custodial interrogations.
3. Comparison of safeguards under the Code of Criminal Procedure and FERA.
4. Interpretation of Supreme Court judgments regarding the presence of legal counsel during interrogation.
5. Role and limitations of an Advocate's presence during interrogation.

Issue-wise Detailed Analysis:

1. Right to have an Advocate present during interrogation under Section 40 of the Foreign Exchange Regulation Act (FERA):

The primary issue in this Writ Petition is whether a person summoned under Section 40 of FERA can claim the right to have his Advocate present during interrogation by the Officers of the Enforcement Directorate. The Petitioner, Abdul Rajak, sought permission for his Advocate to be present during his interrogation, which was denied by the Enforcement Directorate and subsequently by the Sessions Judge. The Petitioner argued that such a right is inherent under Section 40 of FERA, and alternatively, under Article 22(1) of the Constitution of India.

2. Applicability of Article 22(1) of the Constitution of India to non-custodial interrogations:

Article 22(1) of the Constitution provides that "No person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice." The Petitioner's Counsel argued that this right extends to persons under interrogation by the Enforcement Directorate. The Court referred to the Supreme Court's judgment in Smt. Nandini Satpathy v. P.L. Dani, which held that the right to consult an Advocate includes the stage of police interrogation and is not limited to custodial situations.

3. Comparison of safeguards under the Code of Criminal Procedure and FERA:

The Petitioner's Counsel contended that the safeguards available to accused persons under the Code of Criminal Procedure (CrPC) and the Evidence Act are not available under FERA. Statements made to Enforcement Officers under FERA are admissible in evidence, unlike statements made to police officers under CrPC, which are inadmissible under Section 162(1) of CrPC. The Court acknowledged that Enforcement Officers under FERA do not enjoy the same powers as police officers and are not bound by the same procedural safeguards.

4. Interpretation of Supreme Court judgments regarding the presence of legal counsel during interrogation:

The Court examined several Supreme Court judgments, including Ramesh Chandra Mehta v. The State of West Bengal and Percy Rustomji Basta v. The State of Maharashtra, which held that Customs Officers (and by analogy, Enforcement Officers) are not police officers, and statements made to them are admissible in evidence. The Court also referred to the Miranda v. Arizona case from the U.S. Supreme Court, which emphasized the fundamental right of an accused to have legal counsel present during custodial interrogation.

5. Role and limitations of an Advocate's presence during interrogation:

The Court concluded that while an Advocate can be present during the interrogation, their role must be limited to that of a silent spectator. The Advocate is not permitted to interrupt or participate actively in the interrogation process. The Advocate may only raise objections in writing after the interrogation has concluded. This ensures that the interrogation is not disrupted and maintains a balance between the rights of the individual and the requirements of the investigation.

Conclusion:

The Court set aside the Order of the learned Sessions Judge dated 14-1-1986 and allowed the Petitioner's Advocate to be present during the interrogation by the Enforcement Officers under the conditions specified. The Advocate's presence is to ensure that the interrogation is conducted in a just, fair, and reasonable manner without resorting to coercive methods. However, the Advocate's role is restricted to observing the proceedings and making written objections post-interrogation if necessary.

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