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TMI Blog2011 (7) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... d that: how a case registered under NDPS Act can be said to be a regular criminal case and the cases under the Customs Act and the Foreign Exchange Regulation Act, not as criminal cases - The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. - Criminal Appeal No. 1266 of 2011, - - - Dated:- 5-7-2011 - Aftab Alam and R.M. Lodha, JJ. Shri B. Krishna Prasad, Advocate, for the Appellant. S/Shri K.T.S. Tulsi, Sr. Advocate and Niraj Gupta, Advocate, for the Respondent. Shri T.R. Andhyarujina, Sr. Advocate, Amicus Curiae. [Judgment per : Aftab Alam, J.]. Leave granted. 2. This appeal is directed against the judgment and order of the Andhra Pradesh High Court dated March 22, 2007 in Crl. R.C. No. 300 of 2007 by which the High Court dismissed the criminal revision filed by the appellant and affirmed the order of the Metropolitan Sessions Judge dated December 15, 2006, directing that any interrogation of the respondent may be held only in the presence of his advocate. 3. The facts and circumstances in which this appeal arises need to be noticed first. On July 20, 2006, the officers of the Directorate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipatory bail under Section 438 of the Code of Criminal Procedure which was allowed by the Metropolitan Sessions Judge by order dated December 1, 2006, on the ground that the respondent was not shown as an accused in the case and, therefore, the bar under Section 37 of the NDPS Act did not apply to him and further, the medical record filed by the respondent showed that he had been suffering from heart disease and had already undergone heart surgery on two occasions. 7. After the grant of anticipatory bail, the respondent filed another application under Section 438(2) of the Cr .P.C. for modification of the order of anticipatory bail to the extent that the interrogation and examination of the respondent be conducted in the presence of his advocate and a cardiologist. The Metropolitan Sessions Judge, by order dated December 15, 2006, partly allowed the application of the respondent after perusing the medical record and holding that the presence of an advocate at the time of interrogation of the respondent by the DRI officials is necessary to ensure free and fair interrogation. 8. Aggrieved by the order of the Metropolitan Sessions Judge dated December 1, 2006, the appellant moved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary information relating to the above crime in the presence of his Advocate. 11. After considering the above aspects, I am of the view that the order passed by the learned Sessions Judge is in no way affecting the right of the Investigating Officer to interrogate the respondent in the presence of his Advocate, therefore, I do not find any merit in this Revision Case. 11. Now, the matter has been brought to this Court by the appellant in appeal by grant of leave. At the special leave petition stage, the Court had made the direction that interrogation of the respondent can be carried out in accordance with the direction of the High Court. We are, however, informed that the respondent has not been interrogated so far and the appellant is awaiting the order of the Court on his appeal. 12. Mr. K.T.S. Tulsi, Senior Advocate, appearing for the respondent stoutly defended the order passed by the Sessions judge and affirmed by the High Court. He invoked the rights guaranteed under Articles 20(3), 22(1) and 22(2) of the Constitution of India to justify the respondent s plea that his interrogation can take place only in presence of his lawyer. In support of the submission he placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional shield of silence swing into action only in court or can it barricade the accused against incriminating interrogation at the stages of police investigation? 7. Does any person in Section 161 Criminal Procedure Code include an accused person or only a witness? 16. At the end of a lengthy debate, the Court proceeded to answer the issues in paragraph 57, which is reproduced below: 57. We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read compelled testimony as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. The right to consult an advocate of his choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied that right. 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. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a-legal practitioner of his choice. 63. 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. The Miranda decision has insisted that if an accused person asks for lawyer s assistance, at the stage of interrogation, it shall be granted before commencing or continuing with the questioning. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summoned for interrogation, strong reliance was placed on Nandini Satpathy. The Court rejected the submission tersely observing in paragraph of 4 of the judgment as follows : 4. Both Mr. Salve and Mr. Lalit strongly relied on the observations in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424. We are afraid, in view of two judgments of the Constitution Bench of this Court in Ramesh Chandra Mehta v. State of W.B., (1969) 2 SCR 461, and Illias v. Collector of Customs, Madras, (1969) 2 SCR 613, the stand of the appellant cannot be accepted. The learned counsel urged that since Nandini Satpathy case was decided later, the observations therein must be given effect to by this Court now. There is no force in this argument. 21. Further, in paragraph 6 of the judgment, the Court referred to the Constitution Bench decision in Ramesh Chandra Mehta and observed as follows : 6. 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 the hypothetical person who may in the future be discovered to have been guilty of some offence. In Ramesh Chandra Mehta case, the appellant was searched at the Calcut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be ignored on the strength of certain observations in the judgment by three learned Judges in Nandini Satpathy case which is, as will be pointed out hereinafter, clearly distinguishable. 22. An argument in support of the right of the persons called for interrogation was advanced on the basis of Article 21 of the Constitution. The Court rejected that submission also observing paragraph 9 of the judgment as follows : 9. Mr. Salve has, next, contended that the appellant is within 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts as emerging from the judgment indicate that narcotics were thrown from a car carrying the two persons accused in the case. One of the accused persons testified at the trial and his counsel in argument to the jury made adverse comments on the failure of the other accused to go to the witness box. The first accused was acquitted and the second accused was convicted. The question of the right of silence of the accused came up for consideration in this set up. In the cases before us the persons concerned are not accused and we do not find any justification for expanding the right reserved by the Constitution of India in favour of accused persons to be enjoyed by others. 24. In the end, the Court allowed the appeal filed by the Revenue authorities in the case in which the High Court had directed for interrogation to take place in presence of the advocate and dismissed all the other appeals in the batch on behalf of the individuals in whose cases the High Court had declined to give any such direction. 25. It is seen above that the respondent applied for and got anticipatory bail on the premise that he was not an accused in the case. There was no change in his position or st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Strictly speaking the aforesaid direction does not apply to the case of the respondent, because he being on bail cannot be described as an arrestee. But, it is stated on behalf of the respondent that he suffers from heart disease and on going to the DRI office, in pursuance to the summons issued by the authorities, he had suffered a heart attack. It is also alleged that his brother was subjected to torture and the respondent himself was threatened with third degree methods. The medical condition of the respondent was accepted by the Metropolitan Sessions Judge and that forms one of the grounds for grant of anticipatory bail to him. Taking a cue, therefore, from the direction made in D.K. Basu and having regard to the special facts and circumstances of the case, we deem it appropriate to direct that the interrogation of the respondent may be held within the sight of his advocate or any other person duly authorized by him. The advocate or the person authorized by the respondent may watch the proceedings from a distance or from beyond a glass partition but he will not be within the hearing distance and it will not be open to the respondent to have consultations with him in course of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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