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2022 (6) TMI 382 - HC - Money LaunderingAssignment of a counsel who shall be within visible distance of the accused but not audible distance during interrogation - If the respondent has a right of presence of his lawyer during recording of his statements under Section 50 of PMLA, at a safe distance from him from where the lawyer can see the accused and not hear him? - HELD THAT - Since there is neither any FIR nor a complaint against the respondent thus he cannot as a matter of right claim to have the presence of his lawyers during the course of recording of his statement per Ramesh Chander Metra 1968 (10) TMI 50 - SUPREME COURT and Anant Brahmchari 2012 (3) TMI 695 - DELHI HIGH COURT . Even otherwise, admittedly, his entire recording of statement is videographed and audiographed which certainly would dispel the apprehension of any coercion, threat to the respondent. Even otherwise, in Sandeep Jain 2019 (12) TMI 1247 - DELHI HIGH COURT the Division Bench of this Court held the apprehension of coercive measures being employed need to be real and like so that the principle of presence of an advocate, at visible, but not audible distance be applied. Application disposed off.
Issues:
1. Right of presence of lawyer during recording of statements under Section 50 of PMLA. Analysis: The High Court addressed the core issue of 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 considered various judgments cited by both counsels in this matter. The court referred to the case of Poolpandi and Others vs. Superintendent, Central Excise and Others, where it was held that the purpose of the enquiry under the Customs Act would be frustrated if persons in possession of useful information for the departments were allowed to have the company of individuals who could encourage non-cooperation with the law. The court emphasized that such individuals do not have a constitutional right to claim the presence of their lawyer during interrogation. In Sudhir Gulati vs. Union of India, the court differentiated between the scope of the offence under FIR and the scope of enquiry under the Customs Act, stating that the petitioner was not entitled to the assistance of a lawyer at the time of recording his statement under Section 108 of the Customs Act. Moreover, in Ramesh Chandra Mehta vs. State of West Bengal, the court highlighted the circumstances under which a person stands as an accused, emphasizing the importance of a formal accusation in determining the presence of a lawyer during interrogation. The court also considered various other cases cited by both parties, including Vijay Sajnani vs. Union of India, Anil Vasantrao Deshmukh vs. Directorate of Enforcement, and Sandeep Jain vs. Additional Director, DRI. The court analyzed the arguments presented by both sides and ultimately concluded that since there was no FIR or complaint against the respondent, he could not claim the presence of his lawyers during the recording of his statement as a matter of right. The court further emphasized that the recording of the respondent's statement was videographed and audiographed, ensuring transparency and dispelling any apprehension of coercion or threat. The court held that in the absence of any credible material indicating a real and live apprehension of possible threat or coercion, the direction allowing the presence of the advocate at a visible but not audible distance during the recording of the statement was not warranted. Consequently, the impugned direction in the order dated 31.05.2022 was stayed, and the related criminal miscellaneous application was disposed of. The court listed the case for further proceedings on 24.08.2022, marking a significant decision on the right of the accused to have their lawyer present during the recording of statements under PMLA.
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