R.V. Chem vs Union of India

Mishra, J.—Since we propose to refer the case to a larger Bench, we do not advert to the controversies in detail. We record however that

although the writ petitions and the appeals were directed against notices under Sections 107 and 108 of the Customs Act, 1962, learned counsel

for the appellant confined the controversy to a limited question whether a person under notice for enquiry under Sections 107 and 108 of the

Customs Act can seek assistance of a counsel and thus at the time of his interrogation be assisted by a counsel of his choice ?

This Court more than once but specifically in Anil G. Merchant Vs. Director of Revenue Intelligence, Madras and Others, ] has said that there is

no fundamental right of a person who is summoned u/s 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

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 there by making them not reliable statements

in any proceeding.

Contra view however is available in the judgment of the Bombay and Delhi High Courts. The view of the Bombay Court is available in the

judgment reported in Abdul Rajak Haji Mohammed Vs. Union of India and another, , wherein pronouncing on a similar provision under the

Foreign Exchange Regulation Act, the Court has said,

It is pertinent to point out two aspects of the provisions of Section 40 of the F.E.R.A. Firstly, under sub-section (3) a person summoned under

sub-section (1) was bound to speak the truth regarding any subject upon which he was questioned. If he did not speak the truth, we would invite

upon himself the penalty prescribed under sub-section (4). Under that sub-section every investigation or proceeding carried on by the Enforcement

Officer shall be deemed to be a Judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. Section 193 provides

for punishment for giving false evidence in a Judicial proceeding or fabricating false evidence for the purpose of being used in any judicial

proceeding. Section 228 of the India Penal Code provides for intentional insult or interrogation to a public servant sitting in a judicial proceeding.

Therefore, sub-sections (3) and (4) when read together would lead to this position that a person when summoned u/s 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 evidence against him.

The second aspect which needs to be considered is that under the provisions of sub-section (3) of Section 40 of the F.E.R.A., a person

summoned u/s 40(1) was bound to attend either in person or by an authorised agent. Therefore, this sub-section permits a person summoned to

appear before the Officer in person or to send his authorised agent provided the Officer so directed. In my view, the expression ""authorised Agent

would also embrace an Advocate. If, therefore, sub-section 40(3) permitted a person summoned before the Enforcement Officer to be

represented by an Advocate at the time of interrogation, provided the Officer permitted him to do so, then I see no objection to the presence of an

Advocate during the interrogation of a person so summoned. Again, as pointed out by Anand, J in K.T. Advani Vs. The State, if such a right to the

presence of an Advocate during interrogation was available to an Accused person when arrested and interrogated by a Police Officer under the

Code of Criminal Procedure, there is no reason why such a right could not be extended to a person summoned u/s 40 of the F.E.R.A.

The judgment of the Delhi Court in the case of K.T. Advani, New Delhi Vs. The State, New Delhi, contains as follows :

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 Foreign Exchange Regulation Act, which purport, explicity or impliedly, to oust such a right. If the right 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.....

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 matter which may involve the deprivation of personal liberty which is ''just, fair and reasonable''. The divergent procedure of investigation

provided by the Foreign Exchange Regulation Act which has the effect of divesting a suspect of certain rights, privileges and safeguards, which are

available in a corresponding investigation under the Code of Criminal Procedure, would, in itself, provide a further justification for the right to the

presence of counsel in proceedings under the Foreign Exchange Regulation Act. Apart from the constitutional protection by way of right to

presence of counsel, to deny to such a suspect the right to consult counsel and to the presence of counsel at the stage of investigation, where the

investigatory procedure marks a departure from the normal procedure, and deprives such a suspect of a number of rights, privileges and

safeguards, would open such procedure to a justifiable criticism of being ''unjust, unfair and unreasonable''. If the enquiry or interrogation in camera

could be justifiably carried out under the Act, without some of the fundamental safeguards provided for such interrogation in the Criminal P.C. and

if any statement that may be made by the suspect, whether of a confessional nature or otherwise could be used as evidence against the suspect in

an eventual trail and where a suspect is under a statutory duty to speak the truth in answer to all questions that may be put to him in the course of

interrogation and if he can be eventually given stringent punishment not only for the offences under the Act but also if he failed to state the truth in

the course of interrogation, to deny such 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.

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 u/s 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 observation in this

regard.

There is, however, a chance of the delay in the enquiry resulting in destruction of evidence that may be available on the one hand and on the

other hand, the goods perishing. We wanted to know the attitude of the respondents as well as the appellants in this behalf. D. R. Vora, who has

filed the affidavit on behalf of the appellants has however maintained that he would appear if at all alone with his Advocate Sri A. K. Jayaraj on the

day and time fixed by this Court for interrogation. In his affidavit, Mr. Mohandoss, the Assistant Director in the office of the Directorate of

Revenue Intelligence, 14, Gopalakrishna Iyer Road, T. Nagar, Madras - 17, however, he said,

''I most respectfully submit that pursuant to the directions of the Hon''ble Court, this affidavit is being filed. I state that I alone will interrogate the

Petitioner in the Writ Petition. The other officers will be there to assist me namely, Shri S. P. Jeyachandran and R. Mukharram Sheriff. They will

not interrogate the Petitioner, but will be only assisting me.

I most respectfully submit that the Petitioner may be directed to appear before me on the date and during the time fixed by this Hon''ble Court.

I also pray that the time for investigation which expires on 31-1-1992 may be extended by another one month because further investigation may

have to be made on the basis on enquiries made from the petitioner.

For the reason of the nature of the inquiry and the nature of the 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 u/s 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 alone interrogate D. R. Vora or any other person in connection with the case in question, Two other officers, viz., Mr. S. P.

Jeyachandran and Mr. R. Mukharram Sheriff may remain present at the time and place of interrogation of D. R. Vora or any other person. The

latter, however, shall in no manner participate in the interrogation of D. R. Vora or any other person. They may give assistance to Mr. R.

Mohandoss in other respects but not with respect to the interrogation.

(4) Day after to-morrow (30-1-1992) is the date fixed for interrogation of D. R. Vora or any other person in connection with the case in question

during the office hours, namely between 10.30 a.m. and 4.00 p.m.

\(5) The time limited by the impugned order and extended under the interim order of this Court for the purpose of completion of the

enquiry/investigation, however, shall be extended by one more month, thus instead of expiring on 31-1-1992, shall expire on 29.2.1992.

For the reasons aforesaid, however, the two appeals are referred to a Full Bench and accordingly the office shall place these appeals before the

Hon''ble the Chief Justice for orders as to constitution of a Full Bench. It shall be open to the learned counsel for the parties to move the Hon''ble

the Chief Justice for fixing an early date of the hearing.