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TMI Blog1992 (1) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... terrogation be assisted by a counsel of his choice ? 2. This Court more than once but specifically Anil G. Merchant v. The Director of Revenue Intelligence [1985 (20) E.L.T. 292 (Mad.) = 1985 W.L.R. 462] has said that there is no fundamental right of a person who is summoned under Section 108 of the Customs Act to give evidence or to answer queries to have the presence of a lawyer of his choice during examination or interrogation. The Court, however, has said, "However, it is advisable for the department to premit the presence of the lawyers .during such examination or interrogation taking such precautionary measures as may be considered necessary to keep the confidential nature of the statement and the secrecy of the enquiry. They shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in a judicial proceeding. Therefore, sub-sections (3) and (4) when read together would lead to this position that a person when summoned under Section 40 sub-section (1) before the Enforcement Officer, he was bound to speak the truth and he would be faced with prosecution if it was found that he was stating falsehood or fabricating evidence. Such a person could also be prosecuted if he insulted the Investigating Officer or interrupted the proceedings. Further consequences were that any incriminating statement made by him before the Investigating Officer or a statement in the nature of a confession would be admissible in evidence against him. The second aspect which needs to be considered is that under the provisions of sub-section (3) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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.... But even apart from Art. 22 (1) of the Constitution and in situations to which the Article does not, in terms apply, there is no doubt the right to presence of counsel in an enquiry or investigation under the Foreign Exchange Regulation Act on the simple ground that in the absence of any provisions to the contrary in the Act, such a right would naturally flow from the duty of the authorities under the Act to follow only such procedure in a mat ter which may involve the deprivation of personal liberty which is 'just, fair and reasonable'. The divergent procedure of investigation provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a suspect the right to consult counsel and to the presence of counsel at the time of interrogation would be antithesis of a just, fair and reasonable procedure." 5. It has been contended before us that if it is conceded to a person charged/accused of an offence and under arrest that he shall be entitled to legal aid of a counsel and that lawyer's assistance is a right under Art. 21 of the Constitution of India, it is indeed strange when it is said since you are not an accused, you shall have no right although you have the constraints of the law under Section 108 of the Customs Act and the enquiry thereunder is a sort of judicial enquiry. Since we have already said that we proposed to refer the matter to a Full Bench, we do not make any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods being perishable, we are inclined to order as follows : (1) D.R. Vora, son of R. Rashiklal Tulsidas or any other person under notice shall avoid appearance only at his risk and thus shall be obliged to appear on the date and time that will be indicated hereinafter. (2) D.R. Vora or any other person called under notice for interrogation or any other examination in the enquiry under Section 108 of the Customs Act may be accompanied by an Advocate of his choice, but the Advocate shall not enter the chambers or the room in which he or they shall be interrogated or questioned. (3) Mr. R. Mohandoss, Assistant Director in the office of the Directrate of Revenue Intelligence, 14, Gopalakrishna Iyer Road, T. Nagar, Madras -17 shall alon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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