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TMI Blog1992 (5) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... t Kachwaha and B. Kumar for the Appearing Partie. JUDGMENT Lalit Mohan Sharma, J. The common question arising in these cases is whether the respondent in Criminal Appeal No. 476 of 1986, the appellant in Criminal Appeals Nos. 301-302 of 1987 and the petitioners in the other cases are entitled to the presence of their lawyers when they are questioned during the investigation under the provisions of the Customs Act, 1962, and the Foreign Exchange Regulation Act, 1973. There is difference of opinion between the High Courts on this issue, the Delhi High Court in the judgment (reported as K. T. Advani v. State [1985] Crl. LJ 1325) under challenge in Criminal Appeal No. 476 of 1986 holding against the Revenue, and the Madras High Court taking the opposite view in its judgment impugned in Criminal Appeals Nos. 301-302 of 1987. The main argument has been addressed by Mr. Salve with reference to the facts in Criminal Appeals Nos. 301 and 302 of 1987, arising out of a matter under the Customs Act, 1962. Mr. U. R. Lalit, counsel in Writ Petition (Crl.) No. 717 of 1991, has adopted his contentions and supported the same by additional grounds. The Enforcement Directorate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who has been described by learned counsel as the potential accused. The protection under article 20(3) is claimed to be not limited to persons who are already accused but to extend to cover a potential accused too ; and a person under interrogation may himself be such a potential accused. He may, therefore, require the presence of a lawyer who can advise him as to which of the questions he may refuse to answer in view of the protection under article 20(3). It is submitted that to deny him this privilege is to deny him a constitutional right. We do not find any merit in this argument in view of the decisions of this court referred to above. Clause (3) of article 20 declares that no person accused of any offence shall be compelled to be a witness against himself. It does not refer to a hypothetical person who may in future be discovered to have been guilty of some offence. In Ramesh Chandra Mehta's case [1969] 2 SCR 461 ; AIR 1970 SC 940, the appellant was searched at the Calcutta airport and diamonds and jewellery of substantial value were found on his person as also currency notes in a suitcase with him, and in pursuance of a statement made by him more pearls and jewellery were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, clearly distinguishable. A perusal of the facts in Nandini Satpathy v. Dani [1978] 3 SCR 608 would clearly indicate that the decision has no application in the present cases. The matter arose out of a complaint filed by the Deputy Super intendent of Police (Vigilance) against the appellant under section 179 of the Indian Penal Code before the Sub-Divisional Judicial Magistrate, Cuttack. The Magistrate took cognizance of the offence and issued summons for appearance against the appellant. It was contended unsuccess fully that the charge was unsustainable in view of the protection under article 20(3) of the Constitution and the immunity under section 161(2) of the Criminal Procedure Code! In this background, the observations relied upon by Mr. Salve and Mr. Lalit were made and they cannot be treated to have in any way diluted the ratio in Ramesh Chandra Mehta's case [1969] 2 SCR 461. The question whether customs officials are police officers, and whether the statements recorded by the customs authorities under sections 107 and 108 of the Customs Act were inadmissible in evidence were examined in Illias v. Collector of Customs [1969] 2 SCR 613 and answered in the nega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin his right to insist on the presence of his lawyer on the basis of article 21 of the Constitution. He has urged that by way of ensuring protection to his life and liberty he is entitled to demand that he shall not be asked any question in the absence of his lawyer. The argument proceeds to suggest that although strictly the questioning by the Revenue authorities does not amount to custodial interrogation, it must be treated as near custodial interrogation, and if the same is continued for a long period it may amount to mental third degree. It was submitted by both Mr. Salve and Mr. Lalit that the present issue should be resolved only by applying the "just, fair and reasonable test", and Mr. Lalit further added that the point has to be decided in the light of the facts and circumstances obtaining in a particular case and a general rule should not be laid down one way or the other. Mr. Salve urged that when a person is called by the customs authorities to their office or to any place away from his house, and is subjected to intensive interrogation without the presence of somebody who can aid and advise him, he is bound to get upset, which by itself amounts to loss of liberty. Refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations from the judgment : "Secret inquisitions are dangerous things justly feared by free men everywhere. They are the breeding place for arbitrary misuse of official power. They are often the beginning of tyranny as well as indispensable instruments for its survival. Modern as well as ancient history bears witness that both innocent and guilty have been seized by officers of the State and whisked away for secret interrogation or worse until the groundwork has been secretly laid for their inevitable conviction. While the labels applied to this practice have frequently changed, the central idea wherever and whenever carried out remains unchanging extraction of 'statements' by one means or another from an individual by officers of the state while he is held incommunicado." The learned judge, accordingly expressed his dissent, observing that to compel a person to answer questions at a secret interrogation where he is denied legal assistance and where he is subject to the uncontrolled and invisible exercise of power by government officials, would be unconstitutional. We do not share the apprehension as expressed above in the minority judgment in connection with enquiry and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked to come by himself to the Department for answering questions it amounts to mental torture. We are unable to agree. It is true that a large majority of persons connected with illegal trade and evasion of taxes and duties are in a position to afford luxuries on lavish scale, which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr. Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the questioning. The purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them ..... X X X X Extracts X X X X X X X X Extracts X X X X
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