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TMI Blog2017 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Even otherwise, the person summoned under Section 50 of the Act, 2002 is bound to state the truth upon any subject respecting which he is examined or make statement, and produce such documents, as may be required. In view of the aforesaid, I hold that although the applicant cannot claim the relief, as a matter of right, yet as of abundant caution and prudence, I am inclined to permit the counsel of the choice of the applicant to remain present within visible distance, but beyond the hearing range. In the result, this application is allowed. Direct the respondent No.2 to permit the advocate of the applicant to be present during the interrogation of the applicant. The advocate concerned should be made to sit at a distance beyond the hearing range, but within the visible distance and the lawyer must be prepared to be present whenever the applicant is called upon to attend such interrogation. Also take notice of the fact that the applicant was directed to remain present on 2nd January 2017. It will be open for the authority to issue a fresh summons under Section 50 of the Act, 2002 to the applicant asking him to remain present on a particular date. On receipt of such summons, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the applicant herein and others for the offence punishable under Section 120B, 419, 420, 468 and 471 of the Indian Penal Code and Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. The First Information Report was lodged by the Deputy Inspector General of Police (C.B.I.), Special Division, Gandhinagar in connection with the recovery of high volume of high denomination of new currency notes from the applicant herein. It appears that the applicant and his brothers were interrogated by the C.B.I. in this regard, however, no arrest was effected. In connection with the First Information Report referred to above, the Directorate of Enforcement is contemplating filing of a complaint against the applicant and others for the offence punishable under the provisions of the Prevention of Money Laundering Act, 2002. No complaint has been lodged till this date before the Designated Court in this regard. However, it appears that the proceedings are at the stage of ECIR referred to above. 3.2 It is the case of the applicant herein that he has been served with a summons issued by the Assistant Director, Directorate of Enforcement under Section 50 of the Act, 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng exposed to the serious reproof that involuntary selfcrimination secured in secrecy and by coercing the will, was the project. 6 Mr. Chaudhary, the learned senior counsel has placed strong reliance on few orders passed by the Supreme Court in this regard: (1) Vijay Sajnani and another vs. Union of India and another [CRLMP No.10117 of 2012 in WRIT PETITION(CRL.) No.29 of 2012 decided on 25th April 2012]. (2) Vijay Sajnani and another vs. Union of India and another [CRLMP. NO.10117 OF 2012 IN WRIT PETITION (CRL.) NO.29 OF 2012 decided on 25th April 2012]. (3) Birendra Kumar Pandey and another vs. Union of India and another [WRIT PETITON (CRL.) NO.28 OF 2012 WITH W.P. (CRL.) NO.29 OF 2012 decided on 16th April 2012]. (4) Nayasa Exports Pvt. Ltd. vs. Union of India and another [W.P.(C) NO.822 OF 2010 decided on 16th February 2010 by the Delhi High Court]. (5) Sri Parkarsh Aggarwal vs. Union of India and another [ WRIT PETITION (CRL.) NOS.85 OF 2010 decided on 4th August 2010] (6) Anandprakash Choudhari vs. Union of India and another [CRLMP NO.23956 OF 2010 IN WRIT PETITION (CRL.) NO.122 OF 2010 decided on 24th November 2010] (7) Rajinder Arora and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 That, second summon dated 30.12.2016 was issued to Shri Jignesh K Bhajiawala asking him to appear on 02.01.2017. This summon was also received by his father Sh. Kishore Bhajiawala. 6 That, a fax message was received on 02.01.2017 from advocate Chetan K. Pandya wherein he informed that his clients Mr. Jignesh Bhajiawala and Mr. Kishore Bhajiawala require two weeks of time to tender evidence and to explain the source of seized currency. 7 That, vide this office letter No.ECIR/01/STSZO/2016 dated 02.01.2017, Mr. Jignesh Bhajiawala was informed that his request, through his advocate, for extortion of time is not being accepted. A fresh summon was issued to Sh. Jignesh Bhajiawala asking him to appear on 04.01.2017. MTS staffs was personally sent to the Bhajiawala residence to deliver the letter and summon but the ladies present in the house informed that Kishorebhai, Jigneshbhai and Vilashbhai are not at home and she refused to acknowledge the letters and summon. 8 That, accordingly, letter No.ECIR/01/STSZO/2016 dated 02.01.2017 and summon dated 02.01.2017 were sent by speed post to Sh. Jigneshbhai Bhajiawala. The postal authorities returned the above referred two le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation which is at a crucial stage. 13 That, the petitioner's allegation that he apprehends some mischief by the respondents is completely baseless and unfounded. His father Sh. Kishore Bhajiawala and his brother Sh. Vilas Bhajiawala were summoned and their statements were recorded under Section 50 of the PMLA, 2002 on 26.12.2016 and 28.12./2016 respectively. Their statements were recorded under the ambit of law without any pressure, duress or coercion, which fact has been acknowledged by them in their respective statements. Hence the petitioner's apprehension of mischief's is nothing but an excuse to avoid him from appearing before the Department to tender his statement. 14 That, the petitioner's allegation that the entire action of the Department is grossly actuated with malice, and there is every apprehension of gross and blatant abuse of the process of law and he would be pressurized to make self incriminating statements and would be falsely implicated is again baseless and completely unfounded for the reasons mentioned in the preceding para. 15 That, the petitioner's request to issue directions to the respondents to allow the presence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsection (3) of Section 50 of the Act, 2002 is escapable which is to the effect that the choice whether the person summoned should attend in person or by an authorised agent vests with the officer. A literal interpretation of this section, according to Mr. Amin, admits of no doubt that it is for the officer to satisfy consistent with the object of summoning the said person whether the person summoned should attend in person or through an authorised agent. 13 Mr. Amin, in support of his submissions, has placed strong reliance on a Division Bench decision of the Bombay High Court in the case of Satyanarayan and others vs. The Chief Enforcement Officer, Enforcement Directorate Bombay and others [1998 Criminal Law Journal 1535] . 14 Mr. Amin, in the last, submitted that the entire claim putforward by the applicant is on the basis of the decision of the Supreme Court in the case of D.K. Basu vs. State of West Bengal [(1997) 1 SCC 416] . According to Mr. Amin, the principles explained by the Supreme Court in D.K. Basu (supra) will not apply to the case on hand because the applicant cannot be termed as an accused of an offence as on date. He has not been arrested so far by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s opinion sufficient cause for such detention: Provided that an Advisory Board shall consist of a Chairman and not less than two other members, and the Chairman shall be a serving Judge of the appropriate High Court and the other members shall be serving or retired Judge of any High Court: Provided further that nothing in this clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under subclause (a) of clause (7). Explanation In this clause, appropriate High Court means,( i) in the case of the detention of a person in pursuance of an order of detention made by the Government of India or an officer or authority subordinate to that Government, the High Court for the Union territory of Delhi; (ii) in the case of the detention of a person in pursuance of an order of detention made by the Government of any State (other than Union Territory), the High Court for that State; and (iii) in the case of the detention of a person in pursuance of an order of detention made by the Administrator of a Union territory or an officer or authority subordinate to such Administrator, such High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860). (5) Subject to any rules made in this behalf by the Central Government, any officer referred to in subsection (2) may impound and retain in his custody for such period, as he thinks fit, any records produced before him in any proceedings under this Act: Provided that an Assistant Director or a Deputy Director shall not(a) impound any records without recording his reasons for so doing; or (b) retain in his custody any such records for a period exceeding three months, without obtaining the previous approval of the Director. 21 The plain reading of Section 50(3) of the Act, 2002 would suggest that the choice whether the person summoned should attend in person or by an authorised agent vests with the officer. To this extent, I am at one with Mr. Amin, the learned Public Prosecutor. In Satyanarayan (supra), a Division Bench of the Bombay High Court had the occasion to consider Section 40(3) of the Foreign Exchange Act, 1973 which is pari materia to Section 50(3) of the Act 2002. I may quote the relevant observations made by the Court wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally provides for the same. But the arguments of the learned counsel, Shri Bobde, is that whenever statute vests discretion with an authority, the discretion has to be exercised consistent with the principles of natural justice. According to the learned counsel, inasmuch as the said subsection vests a discretion with the authority, that automatically creates a right in the person so summoned to have a request made by him in that behalf considered by the said authority. When such is the position the said consideration in exercise of the discretion, according to the learned counsel, has to be adhering to the principles of natural justice, particularly the principles of audi alteram partem . But on the other hand, learned counsel, Shri Bhangde, for the respondents, maintained that this aspect is concluded by the decision of Supreme Court in the case of Poolpandi v. Superintendent, Central Excise, AIR 1992 SC 1795 : (1992 Cri LJ 2761). Shri Bobde, learned counsel, maintained that AnnexureII order since does not assign any acceptable reason for rejecting the prayer for presence of a lawyer at the time of interrogation, the said order is infirm and the reasons in support of the said o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the need for promptitude or the urgency of the situation so demands........ True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded........ The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. Shri Bobde pointed out that, in the said decision the Court expressed to the effect that fair opportunity of being heard immediately on impounding the passport, in the circumstance, could satisfy the mandate of natural justice. The learned counsel then relied on the decision in Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 to maintain that even where statute expected immediate action the Court held that hearing at predecisional stage must be given. Therefore, according to the learned counsel, natural justice cannot be excluded merely because immediate action is necessary. Alternatively it was maintained by him, even if at the stage of issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation where he is denied legal assistance and where he is subject to the uncontrolled and invisible exercise of power by Govt. officials, would be unconstitutional. We do not share the apprehension as expressed above in the minority judgment in connection with enquiry and investigation under the Customs Act and other similar statutes of our country. There is no question of whisking away the persons concerned in the cases before us for secret interrogation, and there is no reason for us to impute the motive of preparing the ground work of false cases for securing conviction of innocent persons, to the officers of the State duly engaged in performing their duty of prevention and detection of economics crimes and recovering misappropriated money justly belonging to the public. In para 11, Their Lordships clearly held that a person who is summoned does not have such right as is now claimed by the petitioners. Their Lordships held : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not considered and discussed in the said decision. In appreciating the said argument, it is worthy to note that the principles laid down in the decision in M/s Kesho Ram and Co. v. Union of India, (1989) 3 SCC 151 wherein the Supreme Court held while interpreting Article 141 of the Constitution that once a point is finally decided by the Court it becomes binding and cannot be reopened on the ground that some points have not been raised or considered by the Court. And as to interpretation of statutes, the Supreme Court held that an interpretation which would advance the object and purpose of the Act should be adopted. In AIR 1970 SC 1002, Ballabhdas Mathuradas Lakhani v. Municipal Council, Malkapur, while interpreting Art. 141 of the Constitution, it is held by Supreme Court that the decision of Supreme Court is binding on the High Courts and the same cannot be ignored on the ground that relevant provision was not brought to the notice of the Supreme Court. Not only that, the decision in Poolpandi's case AIR 1992 SC 1795 : (1992 Cri LJ 2761) was rendered against an appeal from Advani's case (1987) 30 ELT 390 : (1985 Cri LJ 2325) (Delhi) the question arose under FER Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtem . In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision. Therefore, when a question is posed as to whether the principles of natural justice has to be applied in a given situation, the Court has to balance the interest of the public State with that of a person who is summoned. In Poolpandi's case (1992 Cri LJ 2761) (SC) , this aspect was considered by the Supreme Court and the Supreme Court put the object of the statute at higher pedestal than the principles of natural justice, for the scheme, the purpose and object of the Act are for unearthing misappropriated money which ultimately should belong to the people of this country. When the object of the Act is so understood, it is inescapable that a person cannot insist that the authority acting under S. 40 of the Act is obliged to observe audi alteram partem. It is exclusively for the investigating authorities to decide in a given situation whether the particular person himself must answer the questions. 10. The learned counsel, Shri Bobde, attempted to maintain that there are situations where another has to represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1574). Yet endeavour was made to maintain that even if the person summoned as of right cannot insist presence of a lawyer, he still can make a request for the same, and when made the same has to be considered. Reference was made to the decision in Johney D'Couto v. State of Tamil Nadu, AIR 1988 SC 109 : (1988 Cri LJ 178) in support of the claim for presence of a lawyer drawing parallel to the observation in para 5 of the judgment to the effect that though the provision of the Act disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the service of a lawyer. The first and foremost thing to be noted in appreciating the same is, that was a case of a detenu who was detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The right of a detenu under the relevant provisions of the statute as well as constitution cannot be equated with a claim of a person who is simply summoned for questioning. The said decision cannot come to the assistance of persons like the petitioners, particularly in the context of the declaration of law by Supreme Court in Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecognised. Whatever may be the practice, under the Advocates Act, an advocate is not entitled to any right of audience before any forum other than those set out in S. 30. The Supreme Court in Nandini Satpathi's case, AIR 1978 SC 1025 : (1978 Cri LJ 968) , cautions that police station lawyer' system is an abuse which breeds other vices. 24 I shall now proceed to consider whether the discretionary relief should be granted to the applicant or not. 25 In Nandini Satpathy (supra), Krishna Iyer, J. after referring to Articles 22(1) and 20(3) of the Constitution, observed as under: 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 Art. 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 nearcustodial interrogation. Moreover, the observance of the right against selfincrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice. Lawyers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence coerced crimination. The dissenting words of Mr. Justice White bear quotation in this context- The Court's duty to assess the consequences of its action is not satisfied by the utterance of the truth that a value of our system of criminal justice is 'to respect the inviolability of the human personality' and to require government to produce the evidence against the accused by its own independent labours. More than the human dignity of the accused are involved; the human personality of others in the society also be preserved. Thus the values reflected by the privilege are not the sole disideratum; society's interest in the general security is of equal weight.' The obvious underpinning of the Court's decision is a deep seated distrust of all confessions. As the Court declares that the accused not be interrogated without counsel present, absent a waiver of the right to counsel, and as the Court all but admonishes the lawyer to advise the accused to remain silent, the result adds up to a judicial judgment that evidence from the accused should not be used against him in any way, whether compelled or not. This is the not so subtle overtone of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused allegedly has a number of other offence to answer for, will be thrown into a larger enquiry than the simplistic and ordinarily needed. We have declared the law on the thorny constitutional question where the amber light from American rulings and beacon beams from Indian precedents have aided us in our decision. It is quite probable that the very act of directing a woman to come to the police station in violation of S. 160(1) Cr. P.C. may make for tension and negate voluntariness. It is likely that some of the questions are self criminatory. More importantly, the admitted circumstances are such that the trying magistrate may have to hold an elaborate enquiry about other investigations, potential and actual, to decide about the selfaccusatory character of the answers. And, finally, the process of proving proneness for selfincrimination will itself strike a blow on the very protection under Art. 20(3)... Nandini Satpathy (supra) has been referred to in a subsequent Supreme Court decision reported in Ashadevi v. K. Shivraj, AIR 1979 SC 447 : (1979 Cri LJ 203). In the said case, the question whether the refusal to permit an advocate to be present when the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment, it find the authorities have already made out prima facie cases and Criminal appeals are pending in connection thereto. Put in the present case no prima facie case has yet born. Only on the basis of suspicion or conjecture people were brought or likely to be brought in the office to extract evidence. (b) In such judgment, comfort or luxuries and company of choice were the sum and substance of due consideration. But in the present case the treatment towards the petitioners were far from comfort of luxuries or company of choice during the office hours. It is a case of torture in the name of enquiry and investigation during odd hours to extract evidence to convert alleged suspicion into belief. (c) I fully associate with the observation of the Supreme Court that if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering questions itself ipso facto cannot be said to be mental torture. But in this case the factual difference is that it is related to the incident/s took place after going to the department thereafter by the name of enquiry or investigation. (d) In the Supreme Court judgment, although ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn as protection of Human Rights Act. The ratio of the Supreme Court judgment was restricted during the era when the rigour of FERA (Foreign Exchange Regulation Act) was the policy of the country. Presently the Ministry of Commerce, Government of India introduces various relaxations following economical policy and trend of commercial globalisation. It is universally accepted position. Therefore, the outlook of the authorities in the year 1992 cannot fit in the year 2002. There is sea change in between the two periods. 13. Article 20 of the Constitution of India is made for protection of the person in respect of conviction for offences. Article 22 is made for protection against arrest and detention in certain cases. The real applicable Article in the present case is Article 21. As per Article 21 no person shall be deprived of his life or personal liberty except according to procedure established by law. This is not an idle formality. If such Article is read along with Article 19(1)(g) which is made for the right of the citizens in any profession, or to carry on any occupation, trade or business, the true import will come out. Therefore, the basic feature of the Constitution ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... par with accused. In such cases Court cannot refrain from interfering with the same. In the case of criminal concept, mens rea would be the guiding factor. As and when persons are prevented from coming out from the office in the name of interrogation for a prolonged period it is clear that such persons were treated at par with accused. Therefore they are entitled to get protection under Article 21 of the Constitution of India in such circumstances. The present case is similar to custodial violence. A judgment reported in (1997) 1 SCC 416 : (1997 Cri LJ 743) (D. K. Basu v. State of W. B. with Ashok K. Johri v. State of U. P. has been cited to establish the same. 17. From (1985) 20 ELT 292 : (1986 Cri LJ 1273) (Madras) (Anil G. Merchant v. Director of Revenue intelligence, Madras) I find that the provision of Customs Act do not authorise the Customs Officer to extricate coerce or use any third degree methods in the matter of examination or interrogation of powers under Section 107 or 108, Customs Act, 1962. When a person is obliged to attend in pursuance to the summons issued under Section 108 to state the truth that he is expected to appear before the officer in obedience to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether any torture or third degree or any inhuman method has been applied for the purpose of extracting statements in the name of interrogation cannot be tested nor it can be said that the apprehension and/or allegations are without any basis. It is true to say that the interrogating officers should have appropriate right for the purpose of interrogation but such right should not exceed the limit of the human right. Therefore, a bare denial cannot be an appropriate reply to the charges. The cases of the petitioners are not to stop the summons but to proceed with the summons in the proper manner. Such submission cannot be said to be unfair. What is the difficulty for the authorities to proceed with the enquiry or investigation during the office hours. Therefore, the next question will obviously come that when the persons are interested to have to be interrogated as against summons at the same time apply to the writ jurisdiction to get appropriate order of interrogation within reasonable time and in presence of the observer there must have been fear of terrorising themselves? It appears to me that if it had been proceeded in proper manner, the interrogation would have been completed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the commercial activities. If one wants to flout the law a case has to be made out on the basis of an appropriate reason to believe. Such reason to believe cannot be a weapon of fishing out the evidence by taking the person in the informal custody, torturing him for an indefinite period and extracting statements to make an evidence to fit the purpose. 27 I may also refer to a decision of the Delhi High Court in the case of K.T. Advani New Delhi vs. The State, New Delhi [1985 Criminal Law Journal 1325] , in which it was held that if a suspect is entitled to presence of counsel in an investigation, governed by the Code of Criminal Procedure, there is nothing in the provisions of the FERA, which purport, explicitly or impliedly, to oust such a right. I may quote para 8 of K.T. Advani (supra) as under: In the case of Nandini Satpathy (1978 Cri LJ 968) (SC) (supra), Krishna Iyer J. who spoke for the Court, pointed out that the language employed in Art.22(1) did not mean that the persons, who were not under arrest, or custody can be denied the right to consult counsel and that the spirit and sense of the Article is that it is fundamental to the rule of law that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to the presence of counsel be fundamental to the rule of law, it makes little difference if the investigation is one under the Code of Criminal Procedure or independently of it. 28 I shall now look into the various orders of the Supreme Court relied upon by the learned senior counsel appearing for the writ applicant. 29 In Vijay Sajnani (supra), the Supreme Court observed as under: 1. CRLMP. No.10117 of 2012, has been filed in Writ Petition(Crl.)No.29 of 2012, inter alia for interim directions to allow the learned counsel of the petitioners to be present at a visible distance, but beyond hearing range, at the time of interrogation of the petitioners by the custom authorities. 2. As will appear from paragraphs 2 and 3 of the petition, the writ petition itself was filed for the same reliefs. 3. Similar matters have been filed before us earlier and in those matters, we had directed that during interrogation of the petitioner(s), his/their counsel would be allowed to be present within visible distance, but beyond hearing range. Inasmuch as, the same orders are being passed in these matters, we dispose of the writ petition by directing that in similar case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awyer, but that the petitioners' lawyer should be allowed to be present during the interrogation, within a visible but beyond hearing distance. The prayer has been opposed by the learned additional Solicitor General, Mr. P.P. Malhotra, who has brought to our notice the decision of a Three Judges Bench in the case of Poolpandi and others v. Superintendent, Central Excise and others (1992) 3 SCC 259. Mr. Malhotra pointed out that the very first paragraph of the said judgment mentions that the common question arising in the said case before their Lordships was the stand taken by the petitioners that they were entitled to the presence of their lawyers when they were being questioned during the interrogation under the provisions of the Customs Act, 1962, or the Foreign Exchange Regulation Act, 1973. Their Lordships had noticed the difference of opinion of different High Courts in this connection and had rejected the submission made on behalf of the petitioners therein, that they were entitled to have their lawyers present at the time of interrogation. Such prayer, therefore, was disallowed. Mr. Malhotra has also drawn our attention to the decision in Senior Intelligence Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly. 31 In Nayasa Exports Pvt Ltd (supra), the Delhi High Court passed the following order on 16th February 2010: 1. Learned counsel for the Petitioner states that the Petitioner is prepared to appear before the Additional Director General, Directorate of Revenue Intelligence at Mumbai with all relevant records at 3 pm on 19th February 2010. 2. The lawyer for the Petitioner will be allowed to be present within seeing distance but beyond hearing distance, during the interrogation of the Petitioner. 3. In view of the above directions, no further reliefs are sought for in this petition and it is disposed of accordingly. 4. Order dasti to the parties. 32 In Sri Parkash Aggarwal (supra), the Supreme Court passed the following order on 4th August 2010: UPON hearing counsel the Court made the following ORDER We had issued notice in this matter on 30th July, 2010. Now, an application has been made, being Crl. Misc. No.16512 of 2010, praying for an order that if and when the petitioner is interrogated under Section 14 of the Central Excise Act, 1944, in connection with File No.121/INT/DGCEI/HQ/07, such interrogation should be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject matter of the Writ petition in which we had issued notice on 25th November, 2010 and had also in a subsequent order dated 29th November, 2010, requested Mr. Dey to take instructions with regard to the interim reliefs, prayed for in prayers (b) and (c) of the Writ Petition. Incidentally,in the companion matter, being Writ Petition (Crl.) No.123/2010, it was ordered not to arrest the petitioner during the pendency of the Writ petition. In continuation of the aforesaid interim order, we also direct that the examination of the live consignments which are under seizure and recording of statements of all petitioners under Section 108 of the Customs Act, 1962, shall be taken up by the Customs Department and recording of statements under Section 108 would be commenced from 8th December, 2010 and will be completed on or before 15th December, 2010. Furthermore, the examination of the seized goods is to be concluded within two weeks, starting from 8th December, 2010 and ending on 22nd December, 2010. It is submitted on behalf of the Department that the recording of the statements and examination of the goods under Section 108 of the above Act shall be done between 9.00 AM and 6.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Poolpandi (supra) is that whenever a person is called upon for questioning during investigation by the authorities under the provision of the Customs Act, he is not accused . He cannot, therefore, claim that in view of the possibility of his being made an accused in future, he is entitled to the presence of a lawyer when he is questioned. Refusal to allow the presence of lawyer in such case would not be violative of Article 20(3) nor can it be said that when a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of the lawyer or his friends, his constitutional right under Art. 21 would be violated. It cannot be said that if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering the questions it amounts to mental torture. Thus, even on applying the 'just, fair and reasonable test' the refusal to allow presence of lawyer would not violate Article 21. 37 I find a reference of Poolpandi (supra) in an order of the Supreme Court dated 16th April 2012 in the case of Birendra Kumar Pandey (supra), wherein a Bench of threeJudges disti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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