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TMI Blog1986 (2) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... Directorate of Revenue Intelligence. In the course of the search certain incriminating documents were recovered from the office premises and an amount of 450 Hongkong Dollars were seized from his residence. On 30-6-1985 one Mohammed Isaq Kapadia, the Marketing Manager of the New Bengal Lodge of which the present Petitioner is a Partner, was arrested. On 1-7-1985, Mohammed Isaq was produced before the learned Metropolitan Magistrate, Esplanade. A Remand Application was filed in the Court. Mohammed Isaq was ordered to be remanded in custody for a period of seven days. On 1-8-1985 a Detention Order was issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities act, 1974 (COFEPOSA) against the present Petitioner Abdul Rajak as also against Mohammed Isaq, the Marketing Manager. The Advisory Board under the COFEPOSA recommended the release of Mohammed Isaq on 11-10-1985. The Petitioner Abdul Rajak filed a Civil Writ Petition in the Delhi High Court and the Detention Order was set aside on 13-12-1985. On 2-1-1986 the Petitioner Abdul Rajak filed an Application for Anticipatory Bail in the Court of Sessions, Greater Bombay, being Anticipatory Bail Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Advocate during the course of the investigation by the Enforcement Officers for the reason that the safeguards granted to Accused persons arrested by the Police under the provisions of the Code of Criminal Procedure and the safeguards granted by the Evidence Act were not available to an Accused or a suspect under the F.E.R.A. Shri Jaisinghani submitted that any statement made by an Accused or a suspect of an incriminating nature or a confession was admissible in evidence, if recorded by the Enforcement Officers. Shri Jaisinghani has referred to certain Authorities of the Supreme Court which I shall consider hereinafter. Shri Jaisinghani submitted that it, therefore, became obligatory upon the Court to see that statements of an incriminating nature or confessions made by an Accused or a suspect before the Enforcement Officers were not obtained by such Officers by means of any physical -chastisement or through physical or mental pressure. Shri Jaisinghani submitted that in order to ensure that the Investigating Officers conducted the proceedings in a just, fair and reasonable manner, it was necessary to have the presence of his Advocate, for the presence of the Advocate would ensur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oice. Lawyer s presence is a constitutional claim in some circumstances in our country also, and, in the context of Art. 20(3), is an assurance of awareness and observance of the right to silence. ........ We think that Art. 20(3) and Art. 22(1) may, in a way, be telescoped by making it prudent for the Police to permit the Advocate of the accused, if there be one, to be present at the time he is examined. Over-reaching Art. 20(3) and section 161(2) will be obviated by this requirement. We do not lay down that the Police must secure the services of a lawyer. That will lead to police-station-lawyer system, an abuse which breeds other vices. But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self crimination secured in secrecy and by coercing the will, was the project." 9. Shri Jaisinghani also relied upon a ruling of a learned Single Judge of the Delhi High Court in the case of K.T. Advani v. The State, New Delhi, reported in 1985 Cri. L.J. 1325. The learned Single Judge was called upon to decide the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfessional nature or otherwise could be used as evidence against the suspect in an eventual trial and where a suspect is under a statutory duty to speak the truth in answer to all questions that may be put to him in the course of interrogation and if he can be eventually given stringent punishment not only for the offences under the Act but also if he failed to state the truth in the course of interrogation, to deny such a suspect the right to consult counsel and to the presence of counsel at the time of interrogation would be antithesis of a just, fair and reasonable procedure." 10. Now it is necessary to point out that a person arrested by the Police under the provisions of the Code of Criminal Procedure enjoys certain time-honoured safeguards provided under the Code of Criminal Procedure and the Evidence Act. Under Section 161 the Police are entitled to record the statement of an Accused, but such a statement is inadmissible in evidence under the provisions of Section 162(1). Again under the provisions of Section 163 of the Code of Criminal Procedure, no Police Officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny person on reasonable suspicion; to screen or X-ray the body of a person for detecting secreted goods; to arrest a person against whom a reasonable suspicion exists that he has been guilty of an offence under the Act; to obtain a search warrant from a Magistrate to search any place within the local limits of the jurisdiction of such Magistrate; to collect information by summoning persons to give evidence and produce documents; and to adjudge confiscation under Section 182. He may exercise these powers for preventing smuggling of goods dutiable or prohibited and for adjudging confiscation of these goods. .......... He has no power to investigate an offence triable by a Magistrate, nor has he the power to submit a report under Section 173 of the Code of Criminal Procedure. He can only make a complaint in writing before a competent Magistrate. . . ........ we are of the view that a Customs Officer is under the Act of 1962 not a police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an enquiry is made are not covered by section 25 of the Indian Evidence Act." 13. The Supreme Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he F.E.R.A., the Customs Act, the Excise and Salt Act, are legislations which cover a wide network and range of offences which go under the soubriquet of economic offences . These offences tend to affect the State policies with regard to financial economy. Stringent situations call for stringent measures. We are, therefore, faced with a piquant situation with the problem of State policies on the one hand and individual rights on the other. In such circumstances the effort of the Court must at all times be to strike a harmonious balance between the two. The policies of the State must not be permitted to be jeopardised by a few piratical individuals or a gang of individuals out to make personal gains. On the other hand, the Court cannot permit laxity of legal safeguards which have been tested by time in the name of security of the State. Concisely put, State policies cannot be sacrificed at the altar of individual rights, nor individual rights at the altar of State policies. 16. In Nandini Satpathy s case Krishna Iyer J. referred to the Miranda case decided by the U.S. Supreme Court. Prior to the Miranda case, the Supreme Court of U.S. dealt with the case of Escobedo v. Illinois, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him and that he has a right to the presence of an attorney. The Supreme Court of America has, therefore, held that the right of an Accused to the presence of his Advocate during custodial interrogation is fundamental. 18. On a reading of Article 20(3) and article 22(1) of our Constitution, it appears clear that an Accused person is entitled to the presence of his Advocate during his interrogation by a Police Officer. That position has been asserted without reservation in Nandini Satpathy s case (AIR 1978 SC 1025). If an Accused person during interrogation by a Police Officer be permitted the right to the presence of his Advocate, I do not see any reason why an accused person or a person suspected of an offence should not be afforded the same right when he is being interrogated by an Officer of the Enforcement Directorate. There does not appear to be anything in the Foreign Exchange Regulation Act which forbids the presence of an Advocate during interr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith prosecution if it was found that he was stating falsehood or fabricating evidence. Such a person could also be prosecuted if he insulted the Investigating Officer or interrupted the proceedings. Further consequences were that any incriminating statement made by him before the Investigating Officer or a statement made in the nature of a confession would be admissible in evidence against him. 21. The second aspect which needs to be considered is that under the provisions of sub-section (3) of Section 40 of the F.E.R.A., a person summoned under Section 40(1) was bound to attend either in person or by an authorised agent. Therefore, this sub-section permits a person summoned to appear before the Officer in person or to send his authorised agent provided the Officer so directed. In my view, the expression authorised Agent would also embrace an Advocate. If, therefore, subsection 40(3) permitted a person summoned before the Enforcement Officer to be represented by an Advocate at the time of interrogation, provided the Officer permitted him to do so, then I see no objection to the presence of an Advocate during the interrogation of a person so summoned. Again, as pointed out by An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant case. 24. The next question which must be considered is what is the role which an Advocate has to play during the custodial or near-custodial interrogation? Sri Jaisinghani has emphasized that the Advocate must be permitted to object the questions which posed a threat to the suspect and he should also be permitted to object to such questions which would lead to incriminating answers. In Nandini Satpathy s case, Krishna Iyer J. stated that the lawyer had a right to object to certain questions. These observations, to my mind, are merely suggestive and cannot be deemed to be mandatory in every case. To my mind, to permit an Advocate to participate in the interrogation and to raise objections to questions would mean that the interrogation and enquiry would be converted into quasi-judicial proceedings. I am aware that under Section 40 sub-section (4), the investigations and proceedings under that Section are deemed to be the judicial proceedings, but that is only for the purpose of Sections 193 and 228 of the Indian Penal Code. If an Advocate was permitted to actively participate during interrogation and investigation, it would mean that the interrogation and investigation would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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