Anil G. Merchant vs Director of Revenue Intelligence, Madras and Others

The writ appeal has been filed against an order of a single Judge dismissing W.P. No. 163 of 1985 in limine at the admission stage itself. It

appears that on an examination of a consignment of 7 drums of goods declared as Alkylaryl-sulphonate S. N. (Tamol) imported by one Messrs.

Sudharsan Chemicals, Station Road, Ramnagar, Bangalore, under the cover of AWB No. 085 - 76881836 which was passed out of customs

charge on payment of duty on 3-1-1985, it was found that the drums contained goods other than the goods declared in the bill of Entry. The goods

were detained u/s 110 of the Customs Act. On 4-1-1985, another consignment of 5 drums of the same chemical imported by one Messrs.

Lakshmi Chemicals, Karnataka, under cover of Bill of Entry dated 26-12-1984, was also found to contain goods other than the one declared in

the Bill of Entry. On the ground that the Customs Authorities had reason to believe that the appellant is guilty of an offence u/s 135 of the Customs

Act arrested him at 10 a.m. on 5-1-1985, u/s 104(1) of the Customs Act and produced him before the Magistrate the same evening at 3.30 p.m.

The appellant thereafter was released on bail on the same day. In the affidavit filed in support of the writ petition, the appellant had stated that

when he was in the Air Port at Madras on the 3rd of January, 1985, with a clearing agent, he was called by the Director of Revenue Intelligence

Officials and taken to Air cargo Complex, and from there he was taken to their office in T. Nagar, Madras-17. He was taken inside a room and

surrounded by two officers and other employees of the Department and was interrogated by them throughout the night. They did not allow him to

sleep nor even to sit. He was severely beaten and ill treated and kept in unlawful detention till. 5-1.1985 and forced to subscribe to statement

made against his will. During the above period, he was not allowed to contact anybody including his advocate in spite of specific request. In fact, it

was his case that his advocate was searching for him from 3rd of January, 1985 onwards, went to the office of the Director of Revenue Intelligence

on the 4th and on the 5th but he was not given any information about his presence there or about the interrogation. The advocate wrote a letter on

5-1-1985 to the Assistant Collector of Customs stating that he understood that the appellant was in his custody since 3-1-1985 that he files his

memo of appearance for him and that he may be permitted to be present at the time of interrogation if the appellant is there and is being

interrogated. No reply was given to him. As already stated on 5-1-985 at 10 A.M. the appellant was arrested and produced before the Magistrate

on the same day. After he was released on bail, the Department had issued notices u/s 108 of the Customs Act requiring him to be present for

enquiry or interrogation on the subsequent dates at stated hours. He did appear for enquiry on 8-1-1985 and gave a statement. In the meantime,

on 21-1-1985 the learned counsel for the appellant wrote a letter to the Department stating that Article 22(1) of the Constitution give a

fundamental right to the appellant to consult and to be defended by a legal practitioner and requested the respondents to inform him immediately

whether he will be permitted to exercise the above right during interrogation. This request of the counsel for the appellant was rejected on 30-1-

1985. In the other three cases on the ground that the writ petitioners are involved in illicit export of snake skins, notices were issued to them u/s

108 of the Customs Act directing them to appear before the officers in connection with the investigation and or interrogation. In those cases also

the petitioners pleaded that their counsel shall be permitted to be present while they are interrogated by the Customs Officials.

In all these cases, the argument of the learned counsel for the appellant and the petitioners is that they have a fundamental right to have legal

assistance which would include a right to a counsel to accompany them and be present during interrogation. This right is guaranteed under Articles

21, 22(1) and 39A of the Constitution and any statements obtained in infringements of the constitutional guarantee could not be used in any

proceeding against the petitioners.

Section 107 of the Customs Act enables an officer of customs empowered in this behalf during the course of an enquiry in connection with the

smuggling of any goods to require any person to produce or deliver any document or thing relevant to the enquiry and to examine any person

acquainted with the facts and circumstances of the case. Section 108 gives power to any gazetted officer of customs to summon any person whose

attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making

in connection with the smuggling of any goods. Clause (3) of section 108 further provides that all persons so summoned shall be bound to attend

either in person or by an authorised agent, as such officer may direct and that all persons so summoned shall be bound to state the truth upon any

subject respecting which they are examined or make statements and produced such documents and other things as may be required. These

provisions, therefore, enable a customs officer to summon any person to give evidence or for the purpose of interrogation in connection with any

enquiry which such officers is making in connection with the smuggling of any goods. Neither these provisions in section 107 nor section 108 nor

any other provision in the Act or the rules framed thereunder restrict the right of the customs officer to require the person to appear only at stated

hours. In the nature of things, therefore, it will have to depend on the facts and circumstances of the case and therefore the only thing which we can

expect is that the time and place shall be reasonable and fair having regard to the facts in that particular case. Normally, it is expected that such

interrogation or examination will be done during the normal office hours or during day time. However, we could not say that in every case it could

be done only during day time or during office hours. If the circumstances demand an examination or interrogation immediately or during the nights

subject to all other reasonable facilities provided to the person interrogated or examined it could be done at any time. The other thing which is

expected is that the examination should be conducted in such a way consistent with human dignity and comfort and not in human, unreasonable or

unfair. The provisions in the Customs Act do not also enable the customs officers to extract, coerce or use any third degree methods as mentioned

by the counsel for the petitioners in the matter of examination or interrogation in exercise of powers u/s 107 or section 108. The section does not

enable the customs officers to take any person to custody. When a person is obliged to attend in pursuance of the summons issued u/s 108 and

state the truth he could not be considered while he was examined or interrogated as in the custody of the customs officials. In such a situation as he

is expected to appear before the officers in obedience to the summons and in compliance with law. He cannot be considered to be a person taken

into custody. Taking them as captive prisoners, coercing them to give false statements or depriving them of elementary facilities are not authorised

by the Act. It is needless to expressly prohibit such actions. If and when the officers violate any of these principles or coerce them to give false

confessions, it would always be open to the person concerned to complain of the same wherever those statements are sought to be used and if the

allegations are established, certainly nobody could rely or take note of those statements. In this connection we may note that a Full Bench of this

Court in this decision reported in Roshan Beevi and Others Vs. Joint Secretary to Government of Tamil Nadu and Others, = (1983 Law Weekly

Criminal page 289) in paragraph 48 observed :

If, in a given case, the Customs official detains any person required or summoned under the provisions of the Customs Act for a prolonged

period, even exceeding twenty-four hours, or keeps him in closed doors as a captive prisoner surrounded by officials or locks him in a room or

confines him to an office premises, he does so at his peril because Ss. 107 and 108 of the Customs Act do not authorise the officer belonging to

the Customs Department to detain a person for a prolonged custody and deprive him of the elementary facilities and privileges to which he is

entitled. In such a situation, the officer must be held to have over-stepped his limits, and any confessional statement obtained from such a person by

keeping him in a prolonged custody has to be regarded with grave suspicion, because there is always room for criticism that such a confession

might have been obtained from extorted mal-treatment or induced by improper means. As pointed out by the Supreme Court in Nathu Vs. State of

Uttar Pradesh, , the prolonged custody may stamp the confessional statement so obtained as involuntary one, and the intrinsic value of such a

statement may be vitiated. The question whether a person has been kept in prolonged custody is a question of fact, which has to be carefully

considered against the background of the circumstances disclosed in each case. So, it is neither advisable nor possible to lay down any inflexible

standards for the guidance of Courts, though in the ultimate analysis, it is the Court which is called upon to decide the circumstances of a particular

case.

It is in the light of these principles the constitutional question raised by the learned counsel shall be considered.

The contention of the learned counsel for the petitioners is that Article 21 of the Constitution protects the personal liberty of the individual, that

the right to personal liberty includes a right to consult and be defended by a legal practitioner of his choice and this right to legal assistance shall be

made available in all stages of interrogation or examination whether before arrest or after arrest and that this right could be taken away only in

those cases where clause (3) of Article 22 is applicable. He also contended that this right to have the advocate of his choice to be present during

interrogation or examination by the customs officials does not depend or based on the possible infringement of the personal liberty or possible

violation of any provision of law or the possibility of the customs officials torturing, coercing or using any third degree methods to extract any

wrong confession; but it is his fundamental right under Article 21 read in the light of Article 39A of the Constitution and that therefore section 108

of the Customs Act not authorising a customs officer to take a person in to custody or using unlawful means for extracting statements or coercing

to give statements is not an answer to deprive him of his fundamental right. In this connection, he referred to certain Supreme Court decisions

which may be noticed at this stage. In M. H. Hoskot v. State of Maharashtra AIR 1978 S.C. 1458 the Supreme Court held that the ingredient of

fair procedure to a prisoner is lawyer''s services and that

Judicial Justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise, and a failure

of equal justice under the law is on the cards where such supportive skill is absent for one side.

Legal aid was considered as an inalienable element of fair procedure and Article 39A requiring every State to secure equal justice and free legal

aid is interpretative tool for Article 21. They further held that personal liberty cannot be cut out or cut down without fair legal procedure. All these

forcible observations of the Supreme Court were made with reference to the right of appeal to a convicted prisoner and his right to be provided

with every facility for exercise of his right of appeal or revision and not in regard to any interrogation or examination of a person in pursuance of a

summons u/s 108 who at that time cannot even be considered to be a person in custody much less a person accused of any offence. In Francis

Coralie v. Union Territory of Delhi AIR 1981 S.C. 746 the Supreme Court considered the validity of the conditions of detention order dated 23-

8-1975 issued by the Delhi Administration with reference to a person who was detained under the preventive detention provision in the

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. After pointing out that the right to life enshrined in Article 21

is not limited to protection of limb or faculty but includes the right to live with human dignity and all that goes along with it, namely, the bare

necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse

forms, freely moving about and mixing and mingling with the fellow human beings and that any form of torture or cruelty in human or degrading

treatment would be offensive to human dignity and constitute an inroad into the right to live and therefore prohibited by article 21 unless it is in

accordance with procedure prescribed by law and which procedure also should stand the test of reasonableness and non-arbitrariness, invalidated

clause 3 of the conditions of the detention order which was questioned there. That condition which was invalidated prescribed that a detenu can

have interview with a legal adviser only after obtaining prior permission of the District Magistrate, Delhi, and the interview has to take place in the

presence of an officer of the department. With reference to this provision the Supreme Court observed :

The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for

securing release from preventive detention or filing a writ petition or prosecuting any claim or proceeding, civil or criminal, is obviously included in

the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of detenu be

interfered with except in accordance with reasonable, fair and just procedure established by a valid law.

In our opinion, the right to consult a legal adviser is different from requiring a layer or an advocate to be present while examining or interrorgating a

person during an investigation. The right pleaded in this case by the learned counsel throughout was a right of the lawyers of the petitioners to be

present when the petitioners were examined or interrogated in pursuance of a notice u/s 108. At that stage necessarily the investigation has to be

secret and in fact, even the identity of the person interrogated or examined may have to be kept secret until a late stage in the investigation itself.

We have to also keep in mind that the person interrogated u/s 108 may be a person involved in the commission of any offence or may be a person

who only knows some facts or about somebody else committing it, who is in the nature of a witness unconnected with the offence. In the nature of

things the investigation will have to be discreet and secret and therefore the only thing that is expected is the procedure adopted in the matter or

examination or interrogation should be reasonable and not arbitrary and as held by the Supreme Court, no law which authorises and no procedure

which leads to torture, cruel, inhuman and degrading treatment can every stand the test of reasonableness and non-arbitrariness. As already stated,

section 108 does not authorise any such torture or cruelty or inhuman treatment. The decision in A.K. Roy and Others Vs. Union of India (UOI)

and Others, relied on by the learned counsel, in our opinion, also is of no assistance. That decision related to the right of a detenu who was

detained under the National Security Act to be represented by a lawyer before the Advisory Board constituted under that Act. Of course, the ratio

of the judgment is to the effect that a right to legal assistance is also part of Articles 19. 21 and 22(5). But as we have been referring to earlier, we

are not concerned with a case of either a person accused of an offence or an arrested person''s right to consult or to be defended by a legal

practitioner of his choice. In Nandini Satpathy Vs. P.L. Dani and Another, with reference to the right of a person ""accused of an offence"" to have

the presence of an advocate during interrogation, the Supreme Court observed in paragraph 59 as follows :

Lawyer''s presence is a constitutional claim in some circumstances in our country also, and, in the context of Art. 20(3), is an assurance of

awareness and observance of the right to silence. The Miranda decision (1966) 384 US 436 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 thing that Art. 20(3)

and Art. 22(1) may, in a way, be telescoped by making it prudent for the Police to permit the advocate of the accused, if there be one, to be

present at the time he is examined. Over-reaching Art. 20(3) and Section 161(2) will be obviated by this requirement. We do not lay down that

the Police must secure the services of a lawyer. That will lead to ''police-station-lawyer'' system, an abuse which breeds other vices. But all that we

mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied,

without being exposed to the serious reproof that involuntary self-incrimination secured in secrecy and by coercing the will, was the project.

We are of the view that these observations are made with reference to the right of the accused to silence and over-reaching of Article 20(3) and

section 161(2) and could not be invoked in the case of an interrogation of a person in pursuance of a summons u/s 108 of the Customs Act. In the

same judgment, the Supreme Court observed :

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.

But this observation also has to be understood in the light of the continuing passage which reads as follows :

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 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.

Therefore, this right of a person to have his lawyer''s presence during interrogation has to be tested only with reference to his right against self-

incrimination. In one of the earliest cases in Romesh Chandra Mehta Vs. State of West Bengal, with reference to a statement recorded by an

officer of the customs in an enquiry u/s 171-A of the Sea Customs Act corresponding to section 108 of the Customs Act, 1962, the Supreme

Court observed :

Under Section 171-A of the Sea Customs Act, a customs officer has power in an enquiry in connection with the smuggling of goods to summon

any person whose attendance he considers necessary, to give evidence or to produce a document or any other thing, and by clause (3) the person

so summoned is bound to state the truth upon any subject respecting which he is examined or makes statements and to produce such documents

and other things as may be required. The expression ""any person"" includes a person who is suspected or believed to be concerned in the smuggling

of goods. But a person arrested by a customs officer because he is found in possession of smuggled goods or on suspicion that he is concerned in

smuggling is not when called upon by the customs officer to make a statement or to produce a document or thing, a person accused of an offence

within the meaning of Articles 20(3) of the Constitution. The steps taken by the customs officer are for the purpose of holding an enquiry under the

Sea Customs Act and for adjudging confiscation of goods dutiable or prohibited and imposing penalties. The customs officer does not at that stage

cause 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 Supreme Court further observed in the same case as follows :

Normally, a person stands in the character of an accused when a first information report is lodged against him in respect of an offence before an

officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a magistrate competent to try or

send to another magistrate for trial of the offence. Where a customs officer arrests a person and informs that person of the grounds of his arrest

[which he is bound to do under Article 22(1) of the Constitution] for a purpose of holding an enquiry into the infringement of the provisions of the

Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by

infringement of the Sea Customs Act and punishable at the trial before a magistrate, there is an accusation when a complaint is lodged by an officer

competent in that behalf before the magistrate.

It may be seen from these passages that neither before he was arrested u/s 104 nor after he was arrested u/s 104 he can be considered to be a

person accused of any offence. These observations were quoted with approval in a later decision in Veera Ibrahim v. State of Maharashtra (1976

S.C.C. 302) which was a case u/s 108 of the Customs Act, 1962. We may also notice in this connection the following two decisions reported in

Ashadevi v. K. Shivraj AIR 1979 S.C. 447 and AIR 1979 705 (SC) . In Ashadevi v. K. Shivraj AIR 1979 S.C. 447, a detention order u/s 3(1)

of COFEPOSA, 1974 was made against one Gopal Ghermal Mehta on the ground that it was necessary with a view to preventing him from

engaging and transporting smuggled goods. The grounds of detention were served on the detenu. It was stated in the grounds that on receipt of

certain information the officers of the customs kept a watch for a Fiat car and the said car with five occupants was intercepted near a railway

crossing the occupants which included the detenu and 4 others were taken to the Customs Divisional Officer for examination The detenu and the

other occupants denied that they were carrying any smuggled gold or prohibited articles; but, on a search of one of the occupants, a large quantity

of gold bars with foreign markings were recovered. Two statements were recorded, one statement on that day itself and another the next day in

which he corroborated the version of the person from whose possession the gold with foreign markings was recovered. Briefly stated, they

confessed that they were carrying the gold belonging to a different person and that they were merely carriers who used to receive remuneration for

such transport. The detenu also had stated that this has been going on for about 6 to 8 months and that he had made 5 to 6 trips in a month and on

each trip he used to carry 2 1/2 to 3 kgs. of gold. The order of detention was challenged on the ground that the procedural safeguards had not

been followed vitiating the requisite satisfaction on the part of the detaining authority u/s 3(1). It appears that when the interrogation of the detenu

was going on, an advocate of the detain addressed a letter as also a telegram making grievance about the wrongful restraint and illegal custody of

the detenu by the customs officers beyond 24 hours and expressing apprehension that the detain had been so detained with a view to obtaining

confessional statement against his will. Again the advocate went in person to the customs officer and had sought permission to remain present at the

time of interrogation of the detenu but that request was not acceded to as the customs officers were of the view that there was no provision in law

permitting an advocate to remain present at the time of interrogation. The detenu was arrested and remanded to judicial custody and while he was

in judicial custody also, he was interrogated. During such interrogation he resiled from his earlier confessional statement and squarely repudiated

the facts stated therein. Thereafter the Chief Secretary to the Government of Gujarat passed the impugned detention order. One of the contentions

raised against the validity of the detention order was that the satisfaction of the detaining authority must be regarded as vitiated inasmuch as some

vital facts which had a material bearing and would have influenced the mind of the detaining authority one way or the other were neither placed

before nor were considered by the detaining authority before passing the detention order. One of the vital facts which according to the learned

counsel was not placed before the detaining authority was that during interrogation in spite of request, neither the presence of nor the consultation

with an advocate was permitted. After noting that it is well settled that the subjective satisfaction requisite on the part of the detaining authority, the

formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a

bearing on the issue and would influence the mind of the detaining authority one way of the other are ignored or not considered by the detaining

authority before issuing the detention order, the Supreme Court considered whether the non-communication to the detaining authority that during

interrogation of the detain in spite of request neither the presence of nor the consultation with an advocate was permitted would vitiate the order.

Through the Supreme Court quoted the passage in Nandini Satpathy Vs. P.L. Dani and Another, which we have extracted above and said that

owing to some misconception of the legal position the request for the presence/consultation of a lawyer was turned down, it did not hold that there

was a Constitutional guarantee even during interrogation u/s 108 of the Customs Act to have the presence of a lawyer; but that the detention order

is vitiated by the fact that this vital fact of refusal to permit the presence of a lawyer during interrogation should have been communicated to the

detaining authority because that and a bearing on the question whether the statements could be treated as voluntary or given under duress on the

acceptance or rejection of the statements or the answers given during interrogation. We are therefore of the view that there is no fundamental right

to a person who is summoned u/s 108 to give evidence or to answer queries to have the presence of a lawyer of his choice during examination or

interrogation. However, it is advisable for the department to permit 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

should also keep in view that if the presence of a lawyer during examination or interrogation is refused, the ultimate statements recorded themselves

will become questionable as not voluntary or were statements which were obtained under duress and thereby making them not reliable statements

in any proceeding.

For the foregoing reasons, we are of the view that the appeal and the writ petitions are liable to be dismissed and they are accordingly

dismissed. W.A. No. 114 of 1985 and W.P. 65, 510 and 511 of 1985 :-

V. Ramaswami J.

Learned counsel for the petitioners makes an oral request under Art. 134A of the Constitution of India for grant of leave to appeal to Supreme

Court. We are not satisfied that any substantial question of law as to the interpretation of the Constitution arises out of the order of that any

substantial questions of law of general importance which need be decided by the Supreme Court arise in this case. Accordingly, we reject the

request for grant of leave.