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TMI Blog2018 (6) TMI 1629X X X X Extracts X X X X X X X X Extracts X X X X ..... d not necessarily in the company of their counsel. Such act on the part of DRI cannot be held to be violative of Article 20(3), 21 and 22(1) of the Constitution of India. The prayer of the petitioners that their statement should be recorded in the presence of their counsel cannot be accepted. It however goes without saying that the respondents while recording their statement are always expected to follow the due process of law. Petition dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... t was directed that during interrogation of the petitioner by the Customs authorities under Section 108 of the Customs Act, 1962, his/their counsel would be allowed to be present within visible distance, but beyond hearing range. Reliance is also placed on judgment of the Supreme Court in Munshi Singh Gautam (Dead) & Ors. v. State of M.P. - (2005) 9 SCC 631. 6. On hearing Learned Senior Counsel for the petitioners and perusing the record, we find that all these petitions raise similar argument wherein all the petitioners have claimed that they are law binding citizens of the country and that if they appear before the DRI authority for evidence under Section 108 of the Act, the latter would extract statement from them by coercion, threat, violence and intimidation. Example of one Mr. Babulal, the employee of Sri Sai Logistics, a Clearing House Agent has been given, who later retracted from his statement by letter dated 19-4-2018 addressed to the Assistant Director alleging that he was coerced at the behest of the official of respondents into making some false statement against the petitioners. We are however not impressed. The said letter of Mr. Babulal cannot be the basis for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t guidance. Besides, this order has not noticed the earlier three-judge Bench judgment of the Supreme Court in Poolpandi & Ors. v. Superintendent, Central Excise & Ors., (1992) 3 SCC 259 = 1992 (60) E.L.T. 24 (S.C.), a mention of which is found in the judgment of Senior Intelligence Officer, Directorate of Revenue, Intelligence, supra. The said case arose out of proceedings under Sections 107 and 108 of the Customs Act, 1962. The common question that arose for consideration before the Supreme Court therein was whether the appellants/petitioners were entitled to the presence of lawyer when they are questioned during interrogation under the provisions of the Customs Act, 1962 and the Foreign Exchange Regulation Act, 1973. The argument that was raised before the Supreme Court was that there was no statutory provision prohibiting the presence of a counsel during the interrogation of the person concerned, so if a request in that behalf is made, cannot be legitimately refused. To deny him such a right would be violative of Article 20(3) and 21 of the Constitution. Reliance was placed on judgment of the Supreme Court in Nandini Satpathy v. P.L. Dani-(1978) 2 SCC 424. The Supreme Court how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act with the commission of any office. His primary duty is to prevent smuggling and to recover duties of Customs when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea Customs Act, he is not accusing the person of any offence punishable at a trial before a Magistrate." The above conclusion was reached after consideration of several relevant decisions and deep deliberation on the issue, and cannot be ignored on the strength of certain observations in the judgment by three learned Judges in Nandini Satpathy's case which is, as will be pointed out hereinafter, clearly distinguishable. 7. A perusal of the facts in Nandini Satpathy v. P.L. Dani, (supra) would clearly indicate that the decision has no application in the present cases. The matter arose out of a complaint filed by the Deputy Superintendent of Police (Vigilance) against the appellant under section 179 of the Indian Penal Code before the Sub Divisional Judicial Magistrate, Cuttack. The Magistrate took the cognizance of the offence and issued summons for appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 20(3) gives to a person accused of an offence is that he cannot be compelled to be a witness against himself, but this does not mean that he need not give information regarding matters - which do not tend to incriminate him. Rejecting the prayer of the appellant for setting aside the summons, the Court directed him to appear before the Deputy Director and answer such questions as did not tend to incriminate him. It is significant to note that these observations permitting him not to answer self-incriminating questions were made only because the appellant was held to be an accused on the relevant date. 9. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 10. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 11. We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under Article 21 is violated. The argument proceeds thus : if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answeri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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