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TMI Blog2023 (5) TMI 1168X X X X Extracts X X X X X X X X Extracts X X X X ..... followed the decision of the Delhi High Court in the case of DIRECTORATE OF ENFORCEMENT VERSUS SATYENDAR KUMAR JAIN [ 2022 (6) TMI 382 - DELHI HIGH COURT] and held that the allegation against the E.D. that the Advocate of the accused was not allowed to be present at the time of raid is found to be false and the order permitting the presence of lawyer was set aside. The decisions of the other High Courts have taken a view that the presence of lawyer cannot be insisted as a matter of right. However, the decisions have a persuasive value and is not binding upon this Court. The decision of the Apex Court in the case of V VIJAY SAJNANI ANR. VERSUS UNION OF INDIA ANR. [ 2012 (4) TMI 706 - SUPREME COURT] as well as the decision of Coor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard Ms. Priyanka Lokhande, learned counsel for the petitioner. Mr. Advait Sethana, learned counsel for the Respondent No. 1 and Mr. V.B. Konde-Deshmukh, learned APP for the respondent-State. 4. Learned counsel appearing for the petitioner submits that on 7th September, 2022, the examination of the goods imported by the petitioner s firm was carried out by the Respondent No. 1 and his statement was recorded; that summons dated 7th September, 2022 was issued to the Petitioner under Section 108 of the Act requiring his presence on 8th September, 2022 for inquiry; that on 9th September, 2022 the premises of the Petitioner s firm was searched and documents seized. She submits that on 19th September, 2022, the Petitioner on his volition appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements as per the dictates of the Respondent No 1 and contrary to the facts. 5. Per contra, learned counsel appearing for the Respondent No. 1 submits that the presence of the Advocate during the interrogation cannot be demanded as a matter of right. He would further submit that the Apex Court in the case of Poolpandi and Ors. vs. Superintendent, Central Excise and Ors. in Criminal Appeal No.301 and 302 of 1987, has held that the presence of a lawyer cannot be allowed at the time of examination of person under the Customs Act. He relies upon the following decisions: (a) Poolpandi and Ors. vs. Superintendent, Central Excise and Ors. [MANU/SC/0339/1992]; (b) Sudhir Kumar Aggarwal vs. Director General of GST Intelligence [M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has permitted the presence of the advocate during the interrogation at visible but not audible distance. The Co-ordinate Bench of this Court while permitting the presence of the lawyers has taken into consideration the orders passed in Writ Petition No. 4322 of 2022, Writ Petition No. 3679 of 2022 and Writ Petition No. 2470 of 2022 permitting presence of lawyers at visible but not audible distance. 7. As far as the decisions relied upon by the learned counsel for the Respondent No.2 is concerned, the decision in the case of Poolpandi (supra), was distinguished by the Apex Court in the case of Birendra Kumar Pandey vs. Union of India (Cri. Writ Petition No. 28/2012). The Apex Court held that the decision rendered in the case of Poolpa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respectfully bound by the decision of the Apex Court in the case of Vijay Sajnani vs. Union of India Ors. and Birendra Kumar Pandey vs. Union of India as well as the decision of Coordinate Benches of this Court which have permitted the presence of a lawyer at visible but not audible distance. As indicated above the decision in the case of Poolpandi (supra) was distinguished on facts by the Apex Court in the case of Birendra Kumar Pandey (supra). This Court in the case of Mayur Chavda s/o Deepakbhai Chavda vs State of Maharashtra (Criminal Writ Petition (St) No.6697 of 2023); and Kamlesh Kumar Mishra s/o Brijabhooshan Mishra vs. State of Maharashtra (Criminal Writ Petition No. 1313 of 2023) has permitted the presence of lawyers at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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