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TMI Blog1986 (2) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments were recovered from the office premises and an amount of 450 Honking dollars were seized from his residence. On June 30, 1985, one Mohammed Isaq Kapadia, the marketing manager of the New Bengal Lodge of which the present petitioner is a partner, was arrested. On July 1, 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 to custody for a period of seven days. On August 1, 1985, a detention order was issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, against the present petitioner, Abdul Rajak, as also against Mohammed Isaq, the marketing manager. The Advisory Board, under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, recommended the release of Mohammed Isaq on October 11, 1985. The petitioner, Abdul Rajak, filed a civil writ petition in the Delhi High Court and the detention order was set aside on December 13, 1985. On January 2, 1986, the petitioner, Abdul Rajak, filed an application for anticipatory bail in the Court of Sessions, Greater Bombay, being Anticipat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ani contended that it was more imperative for an accused person or a suspect to have the presence of his 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 Foreign Exchange Regulation Act. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst self-incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice. A lawyer's presence is a constitutional claim in some circumstances in our country also, and, in the context of article 20(3), is an assurance of awareness and observance of the right to silence. .....We think that article 20(3) and article 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. Overreaching article 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." Shri Jaisinghani also relied upon a ruling of a learned single judge of the Delhi High Court in the case of K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided for such interrogation in the Criminal Procedure Code and if any statement that may be made by the suspect, whether of a confessional 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 to such a suspect the right to consult counsel and to the presence of counsel at the time of interrogation would be the antithesis of a just, fair and reasonable procedure." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Officer is authorised to collect customs duty to prevent smuggling and for that purpose he is invested with the power to search any 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 those 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also section 24 of the Evidence Act, would not be available to an accused or suspect interrogated by an Enforcement Officer. It is pertinent to point out that enactments like the Foreign Exchange Regulation Act, the Customs Act, the Central Excises 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to secure a 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. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sult or interruption to a public servant sitting in a judicial proceeding. Therefore, sub-sections (3) and (4), when read together, would lead to this position that a person, when summoned under section 40, sub-section (1), before the Enforcement Officer, was bound to speak the truth and he would be faced with 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. The second aspect which needs to be considered is that under the provisions of sub-section (3) of section 40 of the Foreign Exchange Regulation Act, 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The spirit and sense of article 22(1) is that it is fundamental to the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of near-custodial interrogation." Once it is shown that the petitioner is suspected of having committed some offence under the Foreign Exchange Regulation Act, then the right to the presence of an advocate must be extended even in the instant case. The next question which must be considered is what is the role which an advocate has to play during custodial or near-custodial interrogation? Shri Jaisinghani has emphasised that the advocate must be permitted to object to questions which posed a threat to the suspect and that he should also be permitted to object to such questions which, would lead to incriminating answers. In Nandini Satpathy's case, AIR 1978 SC 1025, Krisna 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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