2022 (8) TMI 724 - HC - Customs

Seeking permission of presence of the advocate with the petitioner while interrogating/enquiry - seeking direction to conduct the interrogation promptly without undue delay and during the office hours - HELD THAT - There are specific allegations made by the petitioners that their business associate, Mr. Rajesh Jain had been beaten and threatened by the respondent in the course of investigation for the purpose of recording the statement as per their wishes. In light of these serious allegations made by their business associate, the petitioners apprehend that they may, too, be physically assaulted or manhandled. Since, the allegations levelled by the business associate of the petitioners raise a reasonable apprehension on the part of the petitioners. The Hon ble Supreme Court in VIJAY SAJNANI ANR. VERSUS UNION OF INDIA ANR. 2012 (4) TMI 706 - SUPREME COURT has held that it is directed that the petitioners' advocate should be allowed to be present during the interrogation of the petitioners. He/they should be made to sit at a distance beyond hearing range, but within visible distance and the lawyer must be prepared to be present whenever the petitioners are called upon to attend such interrogation. Accordingly, the present writ petitions are allowed with direction to the appropriate authority that the petitioners would be interrogated in presence of an Advocate at a visible, but not audible distance in relation to the interrogation by the Officers of DRI in accordance with the direction given by the Hon ble Supreme Court in Vijay Sajnani - It is also directed that the proceedings be video-graphed in terms of the orders passed by Hon ble Supreme Court in RAJINDER ARORA AND ORS. VERSUS UOI AND ORS. 2010 (12) TMI 1254 - SUPREME COURT . Petition disposed off.

Issues:
1. Petitioners seeking a writ of Mandamus for the presence of their advocate during interrogation.
2. Allegations of coercion and threat during investigation by the Directorate of Revenue Intelligence.
3. Dispute over the necessity of the advocate's presence during interrogation.
4. Comparison of judgments regarding the presence of a lawyer during questioning.
5. Decision on allowing the presence of an advocate during interrogation.

Issue 1: Petitioners seeking a writ of Mandamus for the presence of their advocate during interrogation:

The petitioners, engaged in liquor import and trading businesses, sought a writ of Mandamus to permit their advocate's presence during interrogation by the Directorate of Revenue Intelligence (DRI). They expressed apprehension regarding potential coercive actions during the investigation, emphasizing the importance of legal representation during the process.

Issue 2: Allegations of coercion and threat during investigation by the Directorate of Revenue Intelligence:

The petitioners alleged that their business associate was physically assaulted and coerced by DRI officers during the investigation. This led to their fear of facing similar treatment and the potential impact of statements recorded under Section 108 of the Customs Act on their defense in future proceedings initiated by the respondent.

Issue 3: Dispute over the necessity of the advocate's presence during interrogation:

While the petitioners argued for the presence of their counsel during interrogation, the respondent opposed, citing voluntary and cordial statement recordings under Section 108 of the Act. The respondent contended that the petitioners' apprehensions were baseless and emphasized the legality of the proceedings conducted by the DRI officers.

Issue 4: Comparison of judgments regarding the presence of a lawyer during questioning:

The petitioners relied on a Supreme Court judgment allowing the presence of a lawyer during interrogation, emphasizing the need for legal representation to safeguard their rights. In contrast, the respondent cited a different judgment clarifying that the presence of a lawyer during questioning by officers was not necessary, highlighting the distinction based on the nature of the investigating authorities.

Issue 5: Decision on allowing the presence of an advocate during interrogation:

Considering the serious allegations of coercion and the petitioners' reasonable apprehension of physical harm during interrogation, the court allowed the writ petitions. It directed that the petitioners be interrogated in the presence of an advocate at a visible but not audible distance, aligning with the Supreme Court's previous rulings on similar matters. The court also ordered the proceedings to be video-graphed for transparency, ultimately granting the relief sought by the petitioners.

This detailed analysis of the judgment highlights the legal arguments, conflicting positions, and the final decision rendered by the court, addressing the key issues raised in the case.

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