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2010 (3) TMI 657 - HC - FEMASearch under FEMA Forcibly took appellant to office Request for appear with the lawyer of his choice rejected - no jurisdiction of power to deny the presence of an advocate There is no provision under FEMA, 1999 and Income Tax Act, 1961 to permit the petitioner to appear with a lawyer of his choice -Held that - assistance of an Advocate not required at the stage of initial and preliminary investigation by the officials of the respondent Appeal is dismissed.
Issues Involved:
1. Right to be accompanied by an advocate during interrogation under Section 37 of FEMA. 2. Applicability of Section 37(3) of FEMA and Section 131 of the Income Tax Act. 3. Administration of oath under the Oaths Act, 1969. 4. Rights of advocates under Section 30 of the Advocates Act, 1961. 5. Previous judicial precedents on the presence of advocates during interrogation. Issue-wise Detailed Analysis: 1. Right to be accompanied by an advocate during interrogation under Section 37 of FEMA: The primary issue was whether the petitioner could be accompanied by an advocate during interrogation under Section 37 of FEMA. The petitioners argued that the right to be represented by an advocate is part of the fair procedure under Article 21 of the Constitution of India. However, the court held that during the preliminary investigation, the officers of FEMA do not act as a court, and the petitioners cannot insist on the presence of an advocate. The court referenced the Division Bench judgment in V. Dakshinamurthy v. Assistant Director of Inspection, Income Tax, which held that a witness has no right to take his counsel along during the recording of a statement. 2. Applicability of Section 37(3) of FEMA and Section 131 of the Income Tax Act: The petitioners contended that Section 37(3) of FEMA, which mirrors the powers conferred on Income Tax authorities under Section 131 of the Income Tax Act, implies that the officers act as a civil court, thus allowing the presence of advocates. However, the court clarified that the powers under Section 131 are for enforcing attendance and examining on oath but do not extend to allowing advocates during preliminary investigations. The court concluded that at the stage of collecting materials, the officers do not act as a court, and the petitioners are not entitled to legal representation at this stage. 3. Administration of oath under the Oaths Act, 1969: The petitioners argued that the statements recorded without administering an oath as required under the Oaths Act, 1969, are invalid. The court referred to the Supreme Court judgment in H.H. Advani v. State of Maharashtra, which held that the Oaths Act applies to judicial oaths and not to preliminary investigations by enforcement officers. Therefore, the question of administering an oath during the preliminary investigation did not arise. 4. Rights of advocates under Section 30 of the Advocates Act, 1961: The petitioners asserted that Section 30 of the Advocates Act, 1961, entitles advocates to practice before any tribunal or person legally authorized to take evidence. The court noted that while the Advocates Act allows advocates to practice, it does not confer a right on parties to insist on legal representation during preliminary investigations. The court distinguished the present case from those where legal representation was barred in complex legislative matters, emphasizing that the current stage was only preliminary investigation. 5. Previous judicial precedents on the presence of advocates during interrogation: The court cited various judgments, including Poolpandi v. Superintendent, Central Excise, and Deputy Director of Enforcement, Madras v. A.M. Ceaser, which held that individuals summoned for interrogation under similar statutes are not entitled to the presence of an advocate. These precedents supported the view that the presence of advocates during preliminary investigations is not a constitutional right. Conclusion: The court dismissed the writ petitions, concluding that the petitioners do not have the right to be accompanied by an advocate during the preliminary investigation under Section 37 of FEMA. The court emphasized that allowing advocates during this stage would frustrate the purpose of the investigation. Consequently, the connected miscellaneous petitions were also closed, and no order as to costs was made.
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