Presence of Advocate

Though it is not often that assesses are summoned before Central Excise Officers, usually,
these summons create quite a controversy on one question "Can a person summoned have
the right to have an advocate to assist him? Usually, consultants (mostly ex-employees of the
department) insist that their clients have a right to have the presence of an advocate and
mostly departmental officers are very adamant in not allowing advocates to be present. Let's
see the relevant provisions of the law.
Section 14 of the Central Excises & Salt Act, 1944 states:
1.
Any Central Excise Officer duly empowered by the Central Government in this behalf,
shall have power to summon any person whose attendance he considers necessary either
to give evidence or to produce a document or any other things in any inquiry which such
officer is making for any of the purposes of this Act. A summons to produce documents or
other things may be for the production of certain specified documents or things of for the
production of all documents o things of a certain description in the possession or under
the control of the person summoned.
2.
All persons so summoned shall be bound to attend, either in person or by an

authorized agent, as such officer may direct; and all persons so summoned shall be bound
to state the truth upon any subject respecting which they are examined or make
statements and to produce such documents and other things as may be required.
Provided that the exemption under Sections. 132 and 133 of the code of civil procedure,
1908 (5 of 1908) shall be applicable to requisitions for attendance under this section.
3.
Every such inquiry as aforesaid shall be deemed to be a "judicial proceeding" within

the meaning of Section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860).
From the Section it is clear that (1) persons can be summoned to give evidence or to
produce a document or any other thing in any enquiry which such officer is making.
All persons summoned shall be bound to attend either in person or by an authorized agent as
such officer m ay direct. So it is the officer who decides whether the summoned person has
to attend himself or by an authorized agent. Some Advocates have argued that, "as such
officer may direct" relates to "bound to attend" and not to the person or authorized agent.
Sometimes lawyers are against that they are not allowed to be present when statements are
recorded from their clients. Some Advocates claim that it is a constitutional right to have
the presence of a lawyer. In the famous Nandini Satpathy case, the Hon'ble Supreme Court
held that if an accused person expresses his wish to have his lawyer during examination, this
facility should not be denied. It is this case that many lawyers rely on, while insisting on
their right to be present when their clients are summoned to give evidence before a Central
Excise Officer. But it is often (conveniently) forgotten that the Nandini Satpathy case is not
relevant to Central Excise & Customs matters. In "Romesh Chandra Mehta V. State of West
Bengal, the Hon'ble Supreme Court held that a person who was asked to give evidence under
the Sea Customs act is not an accused. In Ilias V. Collector of Customs, madras, the Supreme
Court held that a statement made to a Customs Officer is not hit by Section 25 of the
Evidence Act since Customs Officers are not Police Officers (Section 25 of the Evidence Act
states "No confession made to a Police Officer shall be proved as against a person accused of
any offence". ) Thus the ratio of Nandini Satpathy case is applicable to an accused before a
Police Officer, and not to a person summoned under the Central Excise s & Salt Act or
Customs Act, because the person summoned is not an accused and the officer summoning is
not a Police Officer. The view was emphatically reiterated by the Hon'ble Supreme Court in
Poolpandi V. Superintendent of Central Excise 1992 (60) ELT 14 (S.C) where it was pointed
out that the first case was one in which an accused was entitled to protection under Article
20(3) and the Officers were Policemen, whereas in a case under the Customs Act, the person
does not become an accused during the enquiry stage, nor are Customs Officials police
Officers.
Based on this decision, the Hon'ble High Court of Kerala recently held "we, therefore,
conclude the appellant cannot claim a right to be assisted or accompanied by legal
practitioner of his choice during the time of inquiry under section 14 of the Act Prakash
Kumar Choudhary v. union of India 1996 (83) ELT 45 (Ker). Thus the position is very clear
Page 1 of 45
that a person summoned before a Central Excise Officer does NOT have the right to be
accompanied by an Advocate.
Supreme Court of India

Senior Intelligence Officer vs Jugal Kishore Samra on 5 July, 2011
Author: A Alam
Bench: Aftab Alam, R.M. Lodha
REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1266 OF 2011

[Arising out of SLP (Crl.) No.628 of
2008]
Senior Intelligence Officer
... Appellant
Versus
Jugal Kishore Samra

... Respondent
J U D G M E N T
AFTAB ALAM, J.
1. Leave granted
2. This appeal is directed against the judgment and order of the Andhra Pradesh
High Court dated March 22, 2007 in Crl. R.C. No.300 of 2007 by which the High
Court dismissed the criminal revision filed by the appellant and affirmed the
order of the Metropolitan Sessions Judge dated December 15, 2006, directing
that any interrogation of the respondent may be held only in the presence of his
advocate.
3. The facts and circumstances in which this appeal arises need to be noticed first.
On July 20, 2006, the officers of the Directorate of Revenue Intelligence (for
short "DRI") Hyderabad, raided the premises of M/s Hy- Gro Chemicals
Pharmatek Private Ltd. and found a shortage of 250kgs of Dextropropoxyphene
Hydrochloride (DPP HCL). DPP HCL is a manufactured narcotic drug as
Page 2 of 45
specified in Government of India's notification S.O. 826(E), dated November 14,

1985, at Serial no.87.
4. C.K. Bishnoi (accused no.1) and P.V.Satyanarayana Raju (accused no.2), the
Managing Director and the Production Manager, respectively, of M/s Hy-Gro
Chemicals Pharmatek Private Ltd., admitted that the drug was clandestinely
cleared to M/s J. K. Pharma Agencies, New Delhi, of which the respondent, Jugal
Kishore Samra and his brother, Ramesh Kumar Samra (accused no.3) happen to
be the partners. On the next day, i.e., July 21, 2006, a search was carried out at
the Cargo Complex of the Indira Gandhi International Airport, New Delhi, and
five drums containing DPP HCL were discovered. On examination of the cargo it
was found that the contraband was manufactured by M/s Hy-Gro Chemicals
Pharmatek Pvt. Ltd. and was sent to M/s J.K. Pharma Agencies by wrongly
declaring the consignment as 5-Amino Salicylic Acid. The Directorate of Revenue
Intelligence registered a case against C.K. Bishnoi, P.V.Satyanarayana Raju and
Ramesh Kumar Samra for the offences punishable under sections 21 and 29 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS
Act").
5. While the statements of accused no.1 and accused no.2 had already been
recorded under section 67 of the NDPS Act, the DRI officials summoned the
respondent and his brother (accused no.3). According to the respondent, on
November 5, 2006, when he, accompanied by his brother and another person
arrived at the DRI office in, Hyderabad, at 10:30pm, they were tortured by the
DRI Officials. Unable to withstand the torture, the respondent suffered a heart
attack and was moved to a hospital. The respondent was discharged on
November 7, 2006 and advised complete bed rest for a month. But he went
directly to the DRI Office to enquire about the whereabouts of his brother. He
was kept waiting for 2 days and was also given threats of third degree methods.
On November 9, 2006, en route to the DRI Office, the respondent developed
chest pain and was again hospitalized till November 11, 2006.
6. In this background, the respondent filed an application for anticipatory bail
under section 438 of the Code of Criminal Procedure which was allowed by the
Metropolitan Sessions Judge by order dated December 1, 2006, on the ground
that the respondent was not shown as an accused in the case and, therefore, the
bar under section 37 of the NDPS Act did not apply to him and further, the
medical record filed by the respondent showed that he had been suffering from
heart disease and had already undergone heart surgery on two occasions.
7. After the grant of anticipatory bail, the respondent filed another application
under section 438(2) of the Cr .P. C. for modification of the order of anticipatory
bail to the extent that the interrogation and examination of the respondent be
conducted in the presence of his advocate and a cardiologist. The Metropolitan
Sessions Judge, by order dated December 15, 2006, partly allowed the
application of the respondent after perusing the medical record and holding that
the presence of an advocate at the time of interrogation of the respondent by the
DRI officials is necessary to ensure free and fair interrogation.
Page 3 of 45
8. Aggrieved by the order of the Metropolitan Sessions Judge dated December 1,

2006, the appellant moved the Andhra Pradesh High Court in Crl. M.P. No.5772
of 2006 praying for cancellation of the anticipatory bail granted to the
respondent. The High Court found no merit in the petition and dismissed it by
order dated January 31, 2007.
9. Here it may be noted that on the same day, i.e. January 31, 2007, another
bench of the Andhra Pradesh High Court allowed another petition (Crl. M.P.
No.5880 of 2006) filed by the appellant and cancelled the bail granted to the
respondent's brother, Ramesh Samra by the Metropolitan Sessions Judge on
December 19, 2006. Challenging the order of the High Court, however, Ramesh
Kumar Samra, came to this Court in SLP (Crl.) No.1077/07. The special leave
petition was allowed and by order dated December 10, 2009 this Court set aside
the order of the High Court. The bail of Ramesh Kumar Samra too was, thus,
restored.
10. Coming back to the case of the respondent, aggrieved by the order of the
Metropolitan Sessions Judge dated December 15, 2006 directing for the
respondent's interrogation to take place only in presence of his lawyer, the
appellant sought to challenge it in revision before the High Court in Crl. R. C.
No.300 of 2007. The High Court dismissed the revision petition by order dated
March 22, 2007, upholding the order of the Sessions Judge and observing as
follows:
"9. In the present case, on account of the apprehension of the respondent, the
lower court permitted the Advocate to be present during the course of
interrogation. But the Advocate was directed not to interfere during the course of
interrogation. The purpose of the respondent requesting the presence of the
Advocate is only on account of the apprehension that the Investigating Officers
are likely to apply third degree methods like physical assault, etc., therefore, the
learned Sessions Judge passed the impugned order.
10. It is an undisputed fact that application of third degree method to the accused
is prohibited and interrogation of the accused is a right provided to the
Investigating Officer to elicit certain information regarding the commission of the
offence. Though the Advocate was permitted to be present during the course of
interrogation, he was prevented from interference during the course of
interrogation. When the police do not resort to apply third degree methods, there
cannot be any problem for them to interrogate the respondent to elicit necessary
information relating to the above crime in the presence of his Advocate.
11. After considering the above aspects, I am of the view that the order passed by
the learned Sessions Judge is in no way affecting the right of the Investigating
Officer to interrogate the respondent in the presence of his Advocate, therefore, I
do not find any merit in this Revision Case."
11. Now, the matter has been brought to this Court by the appellant in appeal by
grant of leave. At the special leave petition stage, the Court had made the
direction that interrogation of the respondent can be carried out in accordance
with the direction of the High Court. We are, however, informed that the
respondent has not been interrogated so far and the appellant is awaiting the
order of the Court on his appeal.
Page 4 of 45
12. Mr. K. T. S. Tulsi, Senior Advocate, appearing for the respondent stoutly
defended the order passed by the Sessions judge and affirmed by the High Court.
He invoked the rights guaranteed under Articles 20(3), 22(1) and 22(2) of the
Constitution of India to justify the respondent's plea that his interrogation can
take place only in presence of his lawyer. In support of the submission he placed
great reliance on a decision by a bench of three judges of this Court in Nandini
Satpathy v. P. L. Dani, (1978) 2 SCC 424.
13. Nandini Satpathy, a former Chief Minister of the State of Orissa was named as
one of the accused in a case registered under sections 5 (2) read with section 5 (1)
(d) & (e) of the Prevention of Corruption Act, 1947, and under sections 161, 165
and 120B and 109 of the Penal Code on the allegation of amassing assets
disproportionate to her known and licit sources of income. For interrogation in
connection with that case she was sent a long questionnaire along with summons
to appear before the investigating officer on the fixed date and time and to
answer those questions. She did not appear before the investigating officer as
required by the summons where-upon the investigating officer filed a complaint
against her under section 179 of the Penal Code. The Sub-Divisional Judicial
Magistrate took cognizance of the offence and issued process against her.
Questioning the order of the magistrate as violative of her right to silence she
challenged it first before the High Court of Orissa and on being unsuccessful
there brought the matter to this Court.
14. The decision of the Court in the case of Nandini Satpathi was delivered by
Justice Krishna Iyer and it is a fine example of his Lordship's inimitable
polemical style of writing. The boldness of Miranda v. Arizona, (1966) 384 US
436 as an instance of judicial innovation and positivism was still quite fresh and
taking Miranda as a source of inspiration, Iyer J., pondered over issues of
Judicial philosophy and speculated about the frontiers to which he would have
liked to expand the constitutional guarantee under Article 20(3), maintaining, of
course, the fine balance between the rights of the individual and the social
obligation "to discover guilt, wherever hidden, and to fulfill the final tryst of the
justice system with the society.
15. At the beginning of the judgment in paragraph 10, the Court framed 10 issues
that arose for consideration, three of which may have some relevance for our
present purpose and those are as follows:
"1. Is a person likely to be accused of crimes i.e. a suspect accused, entitled to the
sanctuary of silence as one 'accused of any offence'? Is it sufficient that he is a
potential-of course, not distant-candidate for accusation by the police?
3. Does the constitutional shield of silence swing into action only in court or can
it barricade the 'accused' against incriminating interrogation at the stages of
police investigation?
7. Does 'any person' in Section 161 Criminal Procedure Code include an accused
person or only a witness?"
16. At the end of a lengthy debate, the Court proceeded to answer the issues in
paragraph 57, which is reproduced below:
Page 5 of 45
"57. We hold that Section 161 enables the police to examine the accused during
investigation. The prohibitive sweep of Article 20(3) goes back to the stage of
police interrogation-not, as contended, commencing in court only. In our
judgment, the provisions of Article 20(3) and Section 161(1) substantially cover
the same area, so far as police investigations are concerned. The ban on selfaccusation and the right to silence, while one investigation or trial is under way,
goes beyond that case and protects the accused in regard to other offences
pending or imminent, which may deter him from voluntary disclosure of
criminatory matter. We are disposed to read 'compelled testimony' as evidence
procured not merely by physical threats or violence but by psychic torture,
atmospheric pressure, environmental coercion, tiring interrogative prolixity,
overbearing and intimidatory methods and the like-not legal penalty for
violation. So, the legal perils following upon refusal to answer, or answer
truthfully, cannot be regarded as compulsion within the meaning of Article 20(3).
The prospect of prosecution may lead to legal tension in the exercise of a
constitutional right, but then, a stance of silence is running a calculated risk. On
the other hand, if there is any mode of pressure, subtle or crude, mental or
physical, direct or indirect, but sufficiently substantial, applied by the policeman
for obtaining information from an accused strongly suggestive of guilt, it becomes
'compelled testimony', violative of Article 20(3)."
17. It may be mentioned here that in holding, "the prohibitive sweep of Article
20(3) goes back to the stage of police interrogation-not, as contended,
commencing in court only" the decision in Nandini Satpathy apparently went
against two earlier constitution bench decisions of this Court in Ramesh Chandra
Mehta v. State of West Bengal, 1969 (2) SCR 461 and Illias v. Collector of
Customs, Madras, 1969 (2) SCR 613.
18. In Nandini Satpathy, the Court proceeded further, and though the issue
neither arose in the facts of the case nor it was one of the issues framed in
paragraph 10 of the judgment, proceeded to dwell upon the need for the presence
of the advocate at the time of interrogation of a person in connection with a case.
In paragraphs 61-65 of the judgment, the Court made the following observations:
"61. It may not be sufficient merely to state the rules of jurisprudence in a branch
like this. The man who has to work it is the average police head constable in the
Indian countryside. The man who has to defend himself with the constitutional
shield is the little individual, by and large. The place where these principles have
to have play is the unpleasant police station, unused to constitutional nuances
and habituated to other strategies. Naturally, practical points which lend
themselves to adoption without much sophistication must be indicated if this
judgment is to have full social relevance. In this perspective we address ourselves
to the further task of concretising guidelines.
62. Right at the beginning we must notice Article 22(1) of the Constitution, which
reads:
No person who is arrested shall be detained in custody without being informed,
as soon as may be, of the grounds for such arrest nor shall he be denied the right
to consult, and to be defended by, a legal practitioner of his choice.
Page 6 of 45
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. The spirit and sense of Article 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 alegal practitioner of his choice.
63. Lawyer's presence is a constitutional claim in some circumstances in our
country also, and, in the context of Article 20(3), is an assurance of awareness
and observance of the right to silence. The Miranda decision 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
think that Article 20(3) and Article 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. Overreaching Article 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-crimination secured in secrecy and by
coercing the will, was the project.
64. Not that a lawyer's presence is a panacea for all problems of involuntary selfcrimination, for he cannot supply answers or whisper hints or otherwise interfere
with the course of questioning except to intercept where intimidatory tactics are
tried, caution his client where incrimination is attempted and insist on questions
and answers being noted where objections are not otherwise fully appreciated.
He cannot harangue the police but may help his client and complain on his
behalf, although his very presence will ordinarily remove the implicit menace of a
police station.
65. We realize that the presence of a lawyer is asking for the moon in many cases
until a public defender system becomes ubiquitous. The police need not wait for
more than for a reasonable while for an advocate's arrival. But they must
invariably warn -and record that fact- about the right to silence against selfincrimination; and where the accused is literate take his written
acknowledgment."
19. It is on these passages in Nandini Satpathy that Mr. Tulsi heavily relies and
which practically forms the sheet-anchor of his case.
20. The difficulty, however, is that Nandini Satpathy was not followed by the
Court in later decisions. In Poolpandi & Ors v. Superintendent, Central Excise &
Ors., (1992) 3 SCC 259, the question before a three judge bench of this Court was
directly whether a person called for interrogation is entitled to the presence of his
Page 7 of 45
lawyer when he is questioned during the investigation under the provisions of the
Customs Act, 1962 and the Foreign Exchange Regulation Act, 1973. On behalf of
the persons summoned for interrogation, strong reliance was placed on Nandini
Satpathy. The Court rejected the submission tersely observing in paragraph of 4
of the judgment as follows:
"4. Both Mr. Salve and Mr. Lalit strongly relied on the observations in Nandini
Satpathy v. P.L. Dani, (1978) 2 SCC
424. We are afraid, in view of two judgments of the Constitution Bench of this
Court in Ramesh Chandra Mehta v. State of W.B., (1969) 2 SCR 461, and Illias v.
Collector of Customs, Madras, (1969) 2 SCR 613, the stand of the appellant
cannot be accepted. The learned counsel urged that since Nandini Satpathy case
was decided later, the observations therein must be given effect to by this Court
now. There is no force in this argument."
21. Further, in paragraph 6 of the judgment, the Court referred to the
Constitution Bench decision in Ramesh Chandra Mehta and observed as follows:
"6. Clause (3) of Article 20 declares that no person accused of any offence shall be
compelled to be a witness against himself. It does not refer to the hypothetical
person who may in the future be discovered to have been guilty of some offence.
In Ramesh Chandra Mehta case, the appellant was searched at the Calcutta
Airport and diamonds and jewelleries of substantial value were found on his
person as also currency notes in a suitcase with him, and in pursuance to a
statement made by him more pearls and jewellery were recovered from different
places. He was charged with offences under the Sea Customs Act. During the
trial, reliance was placed on his confessional statements made before the
Customs authorities, which was objected to on the ground that the same were
inadmissible in evidence inter alia in view of the provisions of Article 20(3).
While rejecting the objection, the Supreme Court held that in order that the
guarantee against testimonial compulsion incorporated in Article 20(3) may be
claimed by a person, it has to be established that when he made the statement in
question, he was a person accused of an offence. Pointing out to the similar
provisions of the Sea Customs Act as in the present Act and referring to the power
of a Customs Officer, in an inquiry in connection with the smuggling of goods, to
summon any person whose attendance he considers necessary to give evidence or
to produce a particular document the Supreme Court observed thus: (pp.469-70)
"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 Article 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 accuse the person suspected
or infringing the provisions of the Sea Customs Act with the commission of any
offence. His primary duty is to prevent smuggling and to recover duties of
Customs when collecting evidence in respect of smuggling against a person
Page 8 of 45
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 case which is, as will be pointed out hereinafter, clearly
distinguishable."
22. An argument in support of the right of the persons called for interrogation
was advanced on the basis of Article 21 of the Constitution. The Court rejected
that submission also observing in paragraph 9 of the judgment as follows:
"9. Mr. Salve has, next, contended that the appellant is within his right to insist
on the presence of his lawyer on the basis of Article 21 of the Constitution. He has
urged that by way of ensuring protection to his life and liberty he is entitled to
demand that he shall not be asked any question in the absence of his lawyer. The
argument proceeds to suggest that although strictly the questioning by the
Revenue authorities does not amount to custodial interrogation, it must be
treated as near custodial interrogation, and if the same is continued for a long
period it may amount to mental third degree. It was submitted by both Mr. Salve
and Mr. Lalit that the present issue should be resolved only by applying the 'just,
fair and reasonable test', and Mr. Lalit further added that the point has to be
decided in the light of the facts and circumstances obtaining in a particular case
and a general rule should not be laid down one way or the other. Mr. Salve urged
that when a person is called by the Customs authorities to their office or to any
place away from his house, and is subjected to intensive interrogation without the
presence of somebody who can aid and advise him, he is bound to get upset,
which by itself amounts to loss of liberty. Reference was made by the learned
counsel to the minority view in Re Groban, 352 US 330, 1 L Ed 2d 376, declaring
that it violates the protection guaranteed by the Constitution for the State to
compel a person to appear alone before any law enforcement officer and give
testimony in secret against his will."
23. Referring to the facts in Re Groban and the view taken in the minority
judgment in the case the decision in Poolpandi observed in paragraph 10 as
follows:
"10.....We do not share the apprehension as expressed above in the minority
judgment in connection with enquiry and investigation under the Customs Act
and other similar statutes of our country. There is no question of whisking away
the persons concerned in these cases before us for secret interrogation, and there
is no reason for us to impute the motive of preparing the groundwork of false
cases for securing conviction of innocent persons, to the officers of the state duly
engaged in performing their duty of prevention and detection of economic crimes
and recovering misappropriated money justly belonging to the public. Reference
was also made to the observation in the judgment in Carlos Garza De Luna, Appt.
v. United States, American Law Reports 3d 969, setting out the historical
background of the right of silence of an accused in a criminal case. Mr. Salve has
relied upon the opinion of Wisdom, Circuit Judge, that the history of
Page 9 of 45
development of the right of silence is a history of accretions, not of an avulsion

and the line of growth in the course of time discloses the expanding conception of
the right than its restricted application. The Judge was fair enough to discuss the
other point of view espoused by the great jurists of both sides of Atlantic before
expressing his opinion. In any event we are not concerned with the right of an
accused in a criminal case and the decision is, therefore, not relevant at all. The
facts as emerging from the judgment indicate that narcotics were thrown from a
car carrying the two persons accused in the case. One of the accused persons
testified at the trial and his counsel in argument to the jury made adverse
comments on the failure of the other accused to go to the witness box. The first
accused was acquitted and the second accused was convicted. The question of the
right of silence of the accused came up for consideration in this set up. In the
cases before us the persons concerned are not accused and we do not find any
justification for "expanding" the right reserved by the Constitution of India in
favour of accused persons to be enjoyed by others."
24. In the end, the Court allowed the appeal filed by the Revenue authorities in
the case in which the High Court had directed for interrogation to take place in
presence of the advocate and dismissed all the other appeals in the batch on
behalf of the individuals in whose cases the High Court had declined to give any
such direction.
25. It is seen above that the respondent applied for and got anticipatory bail on
the premise that he was not an accused in the case. There was no change in his
position or status since the grant of bail till he was summoned to appear before
the DRI officers. On the facts of the case, therefore, it is futile to contend that the
respondent is entitled, as of right, to the presence of his lawyer at the time of his
interrogation in connection with the case. Moreover, the respondent's plea for the
presence of his lawyer at the time of his interrogation clearly appears to be in
teeth of the decision in Poolpandi. Nonetheless, Mr. Tulsi contended that the
respondent's right was recognized by this Court and preserved in Nandini
Satpathy and the decision in Poolpandi has no application to the present case.
According to Mr. Tulsi, the respondent is summoned for interrogation in
connection with a case registered under the NDPS Act, which Mr. Tulsi called a
"regular criminal" case, while Poolpandi was a case under the Customs Act and so
were the two cases before the constitution bench in Ramesh Chandra Mehta and
in Illias that formed the basis of the decision in Poolpandi. In our view, the
distinction sought to be drawn by Mr. Tulsi is illusory and non-existent. The
decision in Poolpandi was in cases under the Customs Act, 1962 and the Foreign
Exchange Regulation Act, 1973. Both these Acts have stringent provisions
regarding search, seizure and arrest and some of the offences under each of these
two Acts carry a punishment of imprisonment up to 7 years. We, therefore, fail to
see, how a case registered under NDPS Act can be said to be a "regular criminal"
case and the cases under the Customs Act and the Foreign Exchange Regulation
Act, not as criminal cases.
26. In view of the clear and direct decision in Poolpandi, we find the order of the
High Court, affirming the direction given by the Sessions Judge clearly
unsustainable.
Page 10 of 45
27. We may, however, at this stage refer to another decision of this Court in D.K.
Basu v. State of West Bengal, (1997) 1 SCC 416. In this case, the Court, extensively
considered the issues of arrest or detention in the backdrop of Articles 21, 22 and
32 of the Constitution and made a number of directions to be followed as
preventive measures in all cases of arrest or detention till legal provisions are
made in that behalf. The direction at serial number 10 in paragraph 35 is as
follows:
"(10). The arrestee may be permitted to meet his lawyer during interrogation,
though not throughout the interrogation."
28. Strictly speaking the aforesaid direction does not apply to the case of the
respondent, because he being on bail cannot be described as an arrestee. But, it is
stated on behalf of the respondent that he suffers from heart disease and on going
to the DRI office, in pursuance to the summons issued by the authorities, he had
suffered a heart attack. It is also alleged that his brother was subjected to torture
and the respondent himself was threatened with third degree methods. The
medical condition of the respondent was accepted by the Metropolitan Sessions
Judge and that forms one of the grounds for grant of anticipatory bail to him.
Taking a cue, therefore, from the direction made in DK Basu and having regard to
the special facts and circumstances of the case, we deem it appropriate to direct
that the interrogation of the respondent may be held within the sight of his
advocate or any other person duly authorized by him. The advocate or the person
authorized by the respondent may watch the proceedings from a distance or from
beyond a glass partition but he will not be within the hearing distance and it will
not be open to the respondent to have consultations with him in course of the
interrogation.
29. The order passed by the Metropolitan Sessions Judge and affirmed by the
High Court is substituted by the aforesaid directions made by us.
30. Before closing the record of the case, we may state that arguments were
advanced before us, when does a person called for interrogation in connection
with a case ceases to be a mere provider of relevant information or a witness and
becomes an accused entitled to the Constitutional protections. Arguments were
also addressed on Article 20(3), 22(1) and 22(2) and section 161 of the Cr.P.C.
But, in the facts of the case we see no reason to go into those questions and we
are satisfied that the present case is fully covered by the three judge bench
decision of this Court in Poolpandi.
31. In the result, the orders passed by the High Court and the Metropolitan
Session Judge are set aside and the appeal is allowed to the extent indicated
above.
.........................................J (AFTAB ALAM) .........................................J (R.M.
LODHA) New Delhi, July 5, 2011.
Page 11 of 45
Supreme Court of India

Poolpandi Etc. Etc vs Superintendent, Central Excise ... on 14 May,
1992
Equivalent citations: 1992 AIR 1795, 1992 SCR (3) 247
Author: L Sharma
Bench: Sharma, L.M. (J)
PETITIONER:
POOLPANDI ETC. ETC.
Vs.
RESPONDENT:
SUPERINTENDENT, CENTRAL EXCISE ANDOTHERS ETC. ETC
DATE OF JUDGMENT14/05/1992
BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
VERMA, JAGDISH SARAN (J)
YOGESHWAR DAYAL (J)
CITATION:
1992 AIR 1795
1992 SCC (3) 259
1992 SCALE (1)1114
1992 SCR (3) 247

JT 1992 (4)
119
Page 12 of 45
ACT:
Customs
Act,
1962/Foreign
Exchange
Regulation Act,
1973:
Ss. 107, 108, 110/39, 40-Investigation-Interrogation of
person concerned-Assistance of lawyer-Whether permissible.
Seizure of goods and documents-Period of
limitationTime taken in litigation before High Court or Supreme Court
to be excluded from computation.
Constitution of India, 1950 :
Articles 20(3), 21-Person accused of any
offenceWho
is:
Interrogation
of
person
concerned
during
investigation under
Customs Act or FERA-Refusal of
assistance of lawyer-Whether violative of.
Words and phrases:
`Just, fair and reasonable test'- Application of.
HEADNOTE:
The question whether a person is entitled to the aid of
a counsel when he is questioned during investigation under
the provisions of the Customs Act, 1962 or
the
Foreign Exchange Regulation Act, 1973, was decided by the
Delhi High Court* against the Department whereas the Madras
High Court* took* the opposite view.
Both the views were
challenged in the two appeals by special leave before this
Court. Several writ petitions
were also filed before
this Court by some persons concerned.
It was contended on behalf of the writ petitioners
and the appellants (in the appeal against the judgment of
the Madras High Court) that at the time of interrogation of
a person
during
the investigation under
the
provisions
of Customs Acts or the FERA, there being no
prohibition under 248 the two Acts, he is entitled to the
assistance of a lawyer,and to deny him such a right would
be violative of Article 20(3) of the
Constitution:
and that in view of
the Constitutional
protection
of
life
and
personal
liberty guaranteed
by Article
21, the person concerned is
entitled to a lawyer during
questioning by the Department.
On behalf of the Department it was contended that there
is a distinction between an accused in a criminal case and a
person
called for interrogation under the FERA and
Customs Act, and the protection under Article 20(3) which
may be available to an accused cannot be expanded to other
persons.
Allowing the appeal of the Department and dismissing
the other cases, this Court,
Page 13 of 45
HELD : 1.1.The persons

being interrogated
during
investigation under the provisions of the Customs Act, 1962
or the
Foreign Exchange Regulation
Act, 1973 are
not accused
within the meaning
of
Article
20(3) of
the Constitution and the right reserved by the
Constitution in favour
of accused persons cannot be
expanded to be enjoyed by others. [p 257 A]
Ramesh Chandra Mehta v. State of West Bengal, [1969] 2
SCR 461, followed.
*K.T. Advani v.
The
State
:
1985
Crl.L.J.
1325,
overruled.
**Poolpandi etc.
v.
Superintendent,
Central
Excise (W.P.
Nos.
4690-91/87,
decided by Madras
High
Court on 23.6.1987), approved.
1.2. Clause (3)
of
Article
20
of
the
Constitution declares that no person accused of any
offence
shall
be compelled
to
be a witness against
himself.
It does
not refer to the hypothetical person
who may in the future be discovered to have been guilty of
some offence. [p. 252 A]
1.3. In order that the guarantee against
testimonial
compulsion incorporated in Article 20(3) may be claimed by a
person,
it has to be established that when he made
the statement he was a person accused of an offence. [p. 252
C]
Ramesh Chandra Mehta v. State of West Bengal, [1969] 2
SCR 461 and Illias v. Collectors of Customs, Madras,
[1969]2 SCR 613, followed.
249 Ramesh Bhogilal Shah and another v. D.K. Guha and
Ors.,[1973] 1 SCC 696, referred to.
Nandini Satpathy v. Dani (P.L.) and Anr., [1978] 3
SCR 608, inapplicable.
2.1 Applying the `just fair and reasonable test', it
cannot be said that calling a person away from his
own
house and questioning him in the atmosphere of the customs
office
without the assistance of his lawyer or his
friends either violates his constitutional right under
Article 21 or amounts to mental torture. [p. 257 B C; F]
2.2 The purpose of the enquiry under the
Customs
Act and the other similar statutes will be completely
frustrated if the
whims
of the
persons
in
possession of useful information for the departments are
allowed to prevail.
For achieving the
object
of
such an enquiry if the
the appropriate
authorities
be of the view that
such
persons should be dissociated
from the atmosphere and the company of persons who provide
encouragement to them in adopting a noncooperative
attitude to the machineries of law, there cannot be any
Page 14 of 45
legitimate objection in depriving them of

such
company.
The relevant provisions of the
Constitution
in this regard have to be construed in the spirit they
were made
and the benefits thereunder should not be
expanded to favour
exploiters engaged in tax evasion at
the cost of public exchequer. [p. 257 D - F]
3.
During
the litigation, orders of stay have
been passed
from time to time and the matters
have remained pending
for no fault on the part
of the
concerned Departments of the Union of India and,
therefore, the entire period
for which the cases have
remained pending either
in this
Court
or in the High
Courts shall be excluded while computing the period under
s. 110 of the Customs Act and the
other relevant provisions. [p. 258 F G]
Re
Groban : 352 US 330, 1 L Edn. 376 and Carlos
Garza De Luna Appt. v. United States, 1 American Law
Reports 3d967, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 301-302 of
1987.
From the Judgment and Order dated 23.6.1987 of the Madras High Court in W.P.
Nos. 4690/87 and 4691 of 1987.
WITH Criminal Appeal Nos. 476/86; Writ Petitions (Crl.) Nos. 350 519, 520-21,
571-72, and 623 of 1989; 235, 236, 795, 847, 848, 1215, 1219, 1257, 1824, 1864 &
1887/1990; 7, 26, 27, 28, 60, 107, 108, 717, 1336, 1390 and 1392 of 1991.
K.T.S. Tulsi, Addl. Solicitor General, H.N. Salve, U.R. Lalit, Ms. Bina Gupta, Ms.
Monika Mohil, Ms. Monika Lal, A. Subba Rao, Ms. Sushma Suri, P.
Parmeswaran, Ms. A Subhashini, K.K. Mani, Sumeet Kachwaha and B. Kumar for
the appearing parties.
The Judgment of the Court was delivered by SHARMA, J. The common question
arising in these cases is whether the respondent in Criminal Appeal No. 476 of
1986, the appellant in Criminal Appeals No. 301-302 of 1987 and the petitioners
in the other cases are entitled to the presence of their lawyers when they are
questioned during the investigation under the provisions of the Customs Act,
1962 and the Foreign Exchange Regulation Act, 1973 (hereinafter referred as to
`FERA'). There is difference of opinion between the High Courts on this issue,
the Delhi High Court in the judgment (reported in 1985 Crl. Law Journal at page
1325) under challenge in Criminal Appeal No. 476 of 1986 holding against the
revenue, and the Madras High Court taking the opposite view in its judgement
impugned in Criminal Appeals No. 301-302 of 1987.
Page 15 of 45
2. The main argument has been addressed by Mr. Salve with reference to the facts
in Criminal Appeals No. 301 and 302 of 1987 arising out of a matter under the
Customs Act, 1962. Mr. U.R. Lalit, the counsel in Writ Petition (Crl.) No. 717 of
1991, has adopted his contentions and supported the same by additional grounds.
The Enforcement Directorate, Delhi zone, investigating the matter under the
FERA, has filed Criminal Appeal No. 476 of 1986 against the judgment of the
Delhi High Court allowing the applications under section 482 of the Criminal
Procedure Code, of the respondents, who are represented before us by Mr.
Panjwani.
3. Mr. Salve referred to the provisions of Chapter XIII and XIV of the Customs
Act and contended that since there is no statutory provision prohibiting the
presence of a counsel during the interrogation of the person concerned, a request
in this regard, if made, cannot be legitimately refused. In any event, the learned
counsel proceeded to urge, that in a situation where the possibility of the person
under interrogation of being prosecuted as an accused cannot be denied, he is
entitled to the assistance of a lawyer during the questioning, because to deny him
such a right would be violative of the constitutional protection under Article
20(3) of the Constitution. Alternatively, Mr. Salve contended that in view of the
constitutional protection of life and personal liberty guaranteed by Article 21, the
person concerned is entitled to insist upon the presence of his lawyer when he is
questioned by the officers of the department.
4. Both Mr. Salve and Mr. lalit strongly relied on the observations in Nandini
Satpathy v. Dani (P.L.) and Anr., [1978] 3 SCR 608, at pages 623, 624, 626-629,
645 and 646. We are afraid, in view of two judgments of the Constitution Bench
of this Court in Romesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR
461 and Illias v. Collector of Customs, Madras, [1969] 2 SCR 613, the stand of the
appellant cannot be accepted. The learned counsel urged that since Nandini
Satpathy's case was decided later, the observations therein must be given effect to
by this Court now. There is no force in this argument.
5. Mr. Salve referred to the provisions of the Customs Act and contended that in
view of the mandate in section 108(3) a person has to answer truthfully the
question put to him by the Customs Officer and has to produce documents or any
other thing as may be required, and he is within his rights to refuse to answer
such questions which may lead to his own prosecution. An inquiry under the Act
is held only when prima facie some violation of the law takes place, and the
purpose of the inquiry is to identify the guilty person who has been described by
the learned counsel as the potential accused. The protection under Article 20(3)
is claimed to be not limited to persons who are already accused but to extend to
cover a potential accused too; and a person under interrogation may himself be
such a potential accused. He may, therefore, require the presence of a lawyer who
can advise him as to which of the questions he may refuse to answer in view of
the protection under Article 20(3). It is submitted that to deny him this privilege
is to deny him a constitutional right. We do not find any merit in this argument in
view of the decisions of this Court referred to above.
Page 16 of 45
6. Clause (3) of Article 20 declares that no person accused of any offence shall be
In Romesh Chandra Mehta's case, the appellant was searched at the Calcutta
Customs Authorities, which was objected to on the ground that the same were
to produce a particular document, the Supreme Court observed thus:- "The
expression "any person" includes a person who is suspected or believed to be
within the meaning of Art. 20(3) of the Constitution. The steps taken by the
or or 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."
Nandini Satpathy's case which is, as will be pointed out hereinafter, clearly
distinguishable.
7. A perusal of the facts in Nandini Satpathy v. 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 appearance against the appellants. It was
contended unsuccessfully that the charge was unsustainable in view of the
protection under Article 20 (3) of the Constitution and the immunity under
section 161 (2) of the Criminal Procedure Code. In this background the
observations relied upon by Mr. Salve and Mr. Lalit were made and they cannot
Page 17 of 45
be treated to have in any way diluted the ratio in Romesh Chandra Mehta's case.
The question whether customs officials are police officers, and whether the
statements recorded by the customs authorities under section 107 and 108 of the
Customs Act were inadmissible in evidence were examined in Illias v. Collector of
Customs (supra) and answered in the negative by a Bench of five Judges and it is,
therefore, no use referring to the observations made in the judgment in a regular
criminal case initiated by the police.
8. Reference was also made to the Constitution Bench decision in Ramanlal
BhogiLal Shah and another v. D.K. Guha and Others, [1973} 1 SCC 696. The
appellant Ramanlal was arrested on August 31, 1971 under Section 19B of the
Foreign Exchange (Regulation) Act, 1947, and the grounds of arrest served on
him included the accusation relating to a transaction with reference to which he
was summoned on April 17, 1972 to appear before the Deputy Director,
Enforcement, Directorate on April 28, 1972 to give evidence. The petitioner
pointed out that he was accused at the time when he was arrested of having
committed an offence which was the subject- matter of the enquiry and the
summons should, therefore, be withdrawn. The prayer was rejected by the
Deputy Director who insisted that the petitioner had to comply with the same.
On these facts the matter was considered by the Supreme Court. It was pointed
out that the First Information Report in the case had been lodged earlier, and
since "it is well settled that with the lodging of the First Information Report a
person is accused of an offence within the meaning of Article 20 (3)", the
appellant was entitled to partial relief. The decision in Romesh Chandra Mehta v.
State of West Bengal was referred to and not dissented from. We, therefore, reject
the argument of the learned counsel for the appellants founded on Article 20(3)
of the Constitution. It will be further noticed that in Ramanlal's case (supra) the
Bench took the precaution of observing that the only protection that Article 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. Mr. Salve has, next, contended that the appellant is within his right to insist on
the presence of his lawyer on the basis of Article 21 of the Constitution. He has
and Mr. Lalit that the present issue should be resolved only by applying the `just,
that when a person is called by the customs authorities to their office or to any
Page 18 of 45
counsel to the minority view in Re Groban : 352 US 330, 1 L de 2d 376, declaring
that it violates the the protection guaranteed by the constitution for the State to
testimony in secret against his will.
10. We are afraid the judgment of the United States Supreme Court in Re
Grabon's case : 352 US 330, 1 Lawyer Edition 2d 376; is of no assistance to the
appellant. The matter related to an investigation into the cause of a fire where the
right to assistance of counsel to the witness was denied, on the basis of a state
statue. In this situation the witnesses refused to depose without the presence of
their counsel, and their refusal was treated as a violation of the provisions of the
statue, and they were sent to prison. They filed an application for writ of habeas
corpus which on dismissal came before the United States Supreme Court. The
question which was realised and considered by the Court was whether the
witnesses had a constitutional right to the assistance of counsel during their
interrogation as witness in the enquiry. Reed, J., speaking for three members of
the Court, rejected the contention that the witnesses had such a right. It was
pointed out that the persons concerned were not accused and they could not
claim the right available to an accused of being heard through his own counsel.
Two other Judges concurred in this view and thus the majority judgment went
against the plea of such a claim. It was observed that prosecution of an individual
differs widely from investigation of incidents damaging to the economy or
dangerous to the public. The enquiry under consideration was a proceeding to
elicit facts on the basis of which it could be determined whether the fire was the
result of carelessness or design, and although it could lead to arrest of any person
against whom there was sufficient evidence on which a charge of arson could be
based, it was held that the fact that the testimony of the witnesses might provide
basis of criminal charges against them did not mean that they were entitled to
insist on the presence of their counsel. The majority decision in the case supports
the stand of the respondent, Union of India. We have gone through the minority
view in the judgment of Black, J. and are not impressed by the same. Mr. Salve
has relied upon the following observations from the judgment :- "Secret
inquisitions are dangerous things justly feared by free men everywhere. They are
the breeding place for arbitrary misuse of offical power. They are often the
beginning of tyranny as well as indispensable instruments for its survival.
Modern as well as ancient history bears witness that both innocent and guilty
have been seized by officers of the state and whisked away for secret
interrogation or worse until the groundwork has been secretly laid for their
inevitable conviction. While the labels applied to this practice have frequently
changed, the central idea wherever and whenever carried out remains
unchanging-extraction of "statements" by one means or another from an
individual by officers of the state while he is held incommunicado."
Page 19 of 45
The learned judge, accordingly expressed his dissent observing that to compel a
person to answer questions at a secret interrogation when he is denied legal
assistance and where he is subject to the uncontrolled and invisible exercise of
power by government officials, would be unconstitutional. We do not share the
apprehension as expressed above in the minority judgment in connection with
enquiry and investigation under the Customs Act ad other similar statutes of our
country. There is no question of whisking away the persons concerned in the
cases before us for secret interrogation, and there is no reason for us to impute
the motive of preparing the groundwork of false cases for securing conviction of
innocent persons, to the officers of the state duly engaged in performing their
duty of prevention and detection of economic crimes and recovering
misappropriate money justly belonging to the public. Reference was also made to
the observation in the judgment in Carlos Garza De Luna, Appt., v. United
States : 1 American Law Reports 3d 969; setting out the historical background of
the right of silence of an accused in a criminal case. Mr. Salve has relied upon the
opinion of Wisdom, Circuit Judge, that the history of the development of the
right of silence is a history of aceretions, not of an avulsion and the line of growth
in the course of time discloses the expanding conception of the right than is
restricted application. The Judge was fair enough to discuss the other point of
view espoused by the great jurists of both sides of Atlantic before expressing his
opinion. In any event we are not concerned with the right of an accused in a
criminal case and the decision is, therefore, not relevant at all. The facts as
emerging from the judgment indicate that narcotics were thrown from a car
carrying the two persons accused in the case. One of the accused persons testified
at the trial and his counsel in argument to the jury made adverse comments on
the failure of the other accused to go to the witness box. The first accused was
acquitted and the second accused was convicted. The question of the right of
silence of the accused came up for consideration in this set up. In the cases before
us the persons concerned are not accused and we do not find any justification for
"expanding" the right reserved by the constitution of India in favour of accused
persons to be enjoyed by others.
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 answering question it amounts to mental torture.
We are unable to agree. It is true that large majority of persons connected with
illegal trade and evasion of taxes and duties are in a position to afford luxuries on
lavish scale of which an honest ordinary citizen of this country cannot dream of
and they are surrounded by persons similarly involved either directly or
indirectly in such pursuits. But that cannot be a ground for holding that he has a
constitutional right to claim similar luxuries and company of his choice. Mr.
Salve was fair enough not to pursue his arguement with reference to the comfort
part, but continued to maintain that the appellant is entitled to the company of
his choice during the questioning. The purpose of the enquiry under the Customs
Act and the other similar statutes will be completely frustrated if the whims of the
persons in possession of useful information for the departments are allowed to
Page 20 of 45
prevail. For achieving the object of such an enquiry if the appropriate authorities
be of the view that such persons should be dissociated from the atmosphere and
the company of persons who provide encouragement to them in adopting a noncooperative attitude to the machineries of law, there cannot be any legitimate
objection in depriving them of such company. The relevant provisions of the
Constitution in this regard have to be construed in the spirit they were made and
the benefits thereunder should not be "expanded" to favour exploiters engaged in
tax evasion at the cost of public exchequer. Applying the `just, fair and
reasonable test' we hold that there in no merit in the stand of appellant before us.
1.2. Both Mr. Lalit, the learned counsel in Writ Petition (Crl.) No 717 of 1991 and
the learned counsel for the respondent in Criminal Appeal No. 476 of 1986
(arising out of a FERA case) reiterated the stand that the parties represented by
them respectively should be treated to be in identi-
cal position as an accused and consequently should be allowed the protection

under clause (3) of Article 20. In view of the judgments of this Court and the
discussion as mentioned earlier, the argument cannot be accepted. Mr. Tulsi, the
learned Additional Solicitor General, was right in pointing out the distinction
between an accused in a criminal case and a person called for interrogation under
the present Acts as discussed at page 466 in Romesh Chandra Mehta's case
(supra).
1.3. The judgment under challenge in Criminal Appeal No. 476 of 1986 deals with
several questions raised by the respondent, and the appeal has been pressed by
Mr. Tulsi as against that part which allows the presence of a lawyer when the
respondent is interrogated. It has been rightly contended on behalf of the
appellant that the relevant provisions, in this regard, of the FERA and the
Customs Act are in pari materia and the object of the two Acts is also similar. As
pointed out earlier the case of Ramanlal Bhogilal (supra) was one arising under
FERA. Consequently Criminal Appeal No. 476 of 1986 has to be allowed against
that part of the judgment of the Delhi High Court which dealt with the right of the
respondents to have their lawyer during their interrogation.
1.4. In the result Criminal Appeal No. 476 of 1986 is allowed, but without costs in
the terms indicated above and the other cases are dismissed with costs to the
Union of India .
1.5. The learned counsel for the Union of India has drawn our attention to the
period of limitation fixed under the statutes for the purpose of taking certain
steps and has rightly contended that in view of the pendency of the present cases
in Courts the period has to be extended. During the litigation, orders of stay have
been passed from time to time and the matters have remained pending for no
fault on the part of the concerned Departments of the Union of India and we,
therefore, direct that the entire period for which the cases have remained pending
either in this Court or in the High Court shall be excluded while computing the
period under section 110 of the Customs Act and the other relevant provisions.
R.P. Cr. A. 476/86 allowed and others dismissed.
Page 21 of 45
Delhi High Court

Anant Brahmachari vs Uoi & Ors on 20 March, 2012
Author: Mukta Gupta
*
IN THE HIGH COURT OF DELHI AT NEW DELHI
+
W.P.(CRL) No. 55/2011
%
January, 2012
Reserved on: 31st

Decided on: 20th
March, 2012
ANANT BRAHMACHARI
..... Petitioner
Through:
G. Tushar Rao
and Mr.
Mukherjee, Advocates.
Mr.
Atanu
Versus
UOI & ORS
..... Respondents
Throug
h:
Mr. Baldev Malik,
Advocate
for
Respondent No. 1.
Mr. Hiren P. Raval, Additional
Solicitor General with Mr. Amit
Sharma and Mr. Ahmed Khan,
Advocates for Respondent Nos. 2
to 5.
Mr. Dayan Krishnan, Additional
Standing Counsel for the State
with
Mr. Nikhil A. Menon, Advocate
with ASI Nanak Chand, PS Hazrat
Nizaumuddin.
Coram:HON'BLE MS. JUSTICE MUKTA
GUPTA
Page 22 of 45
1. In this petition vide order dated 11th May, 2011 after addressing arguments at
some length, learned counsel for the Petitioner submitted that he was confining
his petition limited to the reliefs sought in prayers c, e, f and h of the
present petition, which are as under:
"c. Issue a writ, order or direction directing the respondent No.2 NIA to be
guided by the principles of laid down in D K Basu's case even in the case of
summoning witnesses under Section 160 Cr.P.C. for recording statements;
e. Issue an order or direction permitting the petitioner to be accompanied at all
times by two lawyers as and when the petitioner is issued notice under Section
160 Cr.P.C. for recording his statement;
f. Issue a writ, order or direction or pass necessary order for conducting judicial
enquiry into the atrocities and third degree methods resorted to by the
respondent No.2 NIA against the Petitioner as also the illegal detention and
wrongful confinement by the NIA officers on 4/1/2011; and appropriate legal
action be initiated against officers responsible for the same;
h. Issue appropriate order/directions to the UOI and other respondents to jointly
and severely compensate the Petitioner for the illegal detention, wrongful
confinement and for the uncalled for unconstitutional atrocities committed upon
the petitioner by the officers of the respondent No.2 NIA;"
2. Learned counsel for the Petitioner contends that calling the Petitioner to join
the investigation without serving a notice under Section 160 Cr.P.C. amounts to
illegal restrain. Further, when the Petitioner came to join the investigation on 4th
January, 2011 he was handed over a notice to join the investigation on the 5th
January, 2011. The Petitioner was threatened and coerced to the extent that the
Petitioner attempted to commit suicide and had been taken to the hospital and on
being declared fit he alleged that the officials of National Investigating Agency (in
short NIA) were threatening and harassing/ torturing him physically and
mentally because of which he tried to end his life.
3. It is further contended that the Petitioner was at Mumbai when he was served
with a notice under Section 160 Cr.P.C. to appear before the Investigating Agency
on 5th January, 2011 at 10.00 AM at NIA Camp, Moginand, Panchkula, Haryana.
Thereafter, without serving any notice the Petitioner was illegally detained and
made to join the investigating on 4 th January, 2011 when he was harassed and
tortured mentally and physically. Though a notice under Section 160 Cr.P.C. can
be given for calling a witness to give the statement, however the said notice can
only be given to a person who resides within the jurisdiction of said Police station
or any adjoining Police station. The NIA Police officer does not have the
jurisdiction to serve a notice to a person beyond the territorial jurisdiction of the
Police Station he is appointed for. The National Investigating Agency Act, 2008
clothes the Police officers with the powers under Criminal Procedure Code and
they are bound to act in accordance with the procedure laid therein. Thus, extra
Constitutional methods were employed by the Respondents for recording the
statement of the Petitioner.
Page 23 of 45
4. Referring to D.K. Basu Vs. State of West Bengal (1997) 1 SCC 416 it is
contended that even the arrestee has the right to meet the lawyer during
interrogation and the right of the Petitioner, who was not even a suspect at the
time when he was summoned, stands on a higher pedestal. Relying upon Nandini
Satpathy Vs. P.L. Dani and Anr.(1978) 2 SCC 424; State v. N.M.T. Joy
Immaculate, (2004) 5 SCC 729 and State NCT of Delhi Vs. Navjot Sandhu @
Afsan Guru (2005) 11 SCC 600 it is contended that a person who is an arrestee
enjoys a Constitutional benefit of the presence of a lawyer and an atmosphere
free from coercion. The Petitioner, who is not even a suspect at this stage, is on a
better footing and is entitled to the Constitutional right as enshrined in Articles
21 & 22 of the Constitution of India. Even by giving a notice under Section 160
Cr.P.C. a person cannot be called at a place which does not fall within the
jurisdiction of the Police Station where he resides. There is no dispute that in
view of Section 3 of the NIA Act, a Police officer under the NIA discharges
functions throughout India, however, wherever he exercises the jurisdiction he
can only exercise jurisdiction in his Police Station or the adjoining Police station
in view of Section 3(2) of the NIA Act. Reference is made to 2(1)(b) and (i) of the
NIA Act to contend that the meaning of the expression would be as per the
Criminal Procedure Code. The Petitioner is stationed at Uttarakhand and in case
the Respondents want to interrogate him, they can come to Uttarakhand. No
doubt the Petitioner is a monk moving here and there, however he has his
ordinary place of residence which he has revealed in the petition.
5. As regards prayers f and h, learned counsel for the Petitioner contends that
the Respondents in their affidavit have admitted that Inspector Prabhat Bajpayee
called the Petitioner on telephone and thus admittedly no notice under Section
160 Cr.P.C. was given when he was made to join the investigation on 4th January,
2011. Even if the Petitioner attended the proceedings, the same were without
issuance of notice under Section 160 Cr.P.C., wherein the Petitioner was coerced
and tortured, which amounts to illegal detention. In view of the torture meted out
to the Petitioner and the fact that another notice was issued for appearance on 5
th morning, the Petitioner attempted suicide which fortifies the claim of the
Petitioner. In view of the guidelines laid in D.K. Basu (supra), a judicial enquiry
be directed and contempt proceedings be initiated against the Respondents.
Reliance is placed on Tar Balbir Singh Vs. Union of India and Anr. 1992 (2)
Crimes 394 Punjab & Haryana; Deepak Mishra and Anr. Vs. State of U.P. And
Anr. 1999 Crl.L.J. 4123; Krishan Bans Bhadur and Anr. Vs. State of Himachal
Pradesh 1975 Crl.L.J. 620 (H.P.); Mathews Peter Vs. Asst. Police Inspector & Ors.
2002 Crl.L.J. 1588; Akhilesh Vs. State of U.P. & Anr. 2011 (2) Crimes 602 (All.)
and M/s. Pusma Investment Pvt. Ltd. & Ors. Vs. State of Meghalaya & Ors. 2010
Crl.L.J. 56 to contend that notice under Section 160 Cr.P.C. cannot be given
beyond territorial jurisdiction of the Police Station or the adjoining Police
Station.
6. Learned Additional Solicitor General appearing for Respondent No.2 to 5
contends that the issue whether a person has a right of counsel when his
statement under Section 160 Cr.P.C. is being recorded is no more res-integra in
view of the decision of Honble Supreme Court in Senior Intelligence Officer Vs.
Jugal Kishore Sharma CRL.A. No. 1266/2011 decided on 5 th July, 2011 wherein
the Honble Supreme Court considered all earlier decisions including that in the
Page 24 of 45
case of Nandini Satpathy (supra). It was held that the law laid down in Nandini
Satpathy (supra) was not good law in view of the fact that it did not consider the
earlier Constitution Bench decisions and the decision in Nandani Satpathy
(supra) has not been followed in the later decisions of the Honble Supreme
Court. Thus, the observations made by the Honble Supreme Court in Nandani
Satpathy (supra) cannot be used to allow prayer e of the Petitioner.
7. As regards prayer c is concerned, it is contended that the NIA Act entitles its
officers to summon any person, who is in a jurisdiction outside the territorial
jurisdiction where the officer is stationed and there is no mandate that the person
can be called to give statement only in the territorial jurisdiction of the police
station in which the person resides or in the adjoining Police Station. When the
present petition was filed, the Petitioner had already complied with the first
summon. He did not take any steps to challenge the same and thus now the
Petitioner cannot challenge the said summon which has already been complied
with. Further, the documents on record itself show that though initially a notice
was served at Mumbai to the Petitioner to join the investigation at Panchkula on
5 th January, 2011, however since the Petitioner was on his way at Delhi, as per
his convenience, he was made to join the investigation at the NIA Headquarter,
Delhi on 4th January, 2011. The Petitioner was accompanied by a lawyer. The
Petitioner was at Delhi and thus asked to come at Delhi. The questioning took
place in two sessions and the Petitioner was permitted to go for lunch. Thus, the
contention regarding the illegal restrain and thus illegal custody is wholly
unfounded. The second summon for appearance on 5th January, 2011 was issued
to the Petitioner on 4th January, 2011 when he came to join the investigation at
NIA Headquarter and was admittedly in Delhi. The Petitioner in the petition at
different places has stated that he is residing at Surat, Uttarakhand though he
was found at Mumbai. The investigation also reveals that the Petitioner is a
resident of Gomti Nagar, Lucknow on the basis of Cell I.D.
8. Section 3, NIA Act starts with a non-obstante clause and confers the powers on
the Police officials to conduct investigation in any part of India in terms of
Section 3(2) of the Act. Section 3(3) of the NIA Act has been added as an
abundant caution. Section 3(2) is a complete answer to the queries raised by the
Petitioner. Different High Courts have taken the view and have not accepted the
contention that a notice under Section 160 Cr.P.C. can be given to a person who
resides in the territorial jurisdiction of the concerned Police Station or the
adjoining Police station. Reliance in this regard is placed on Dr. Rajinder B. Lal
Vs. State of U.P., MANU/UP/0754/2006; Anirudha S. Bhagat Vs. Ramnivas
Meena & Anr., MANU/MH/0699/2005; Rajesh @ Unni S/o of Rajagopalan Nair
Vs. State of Kerala DGP and CB-CID MANU/KE/0529/2010 and Pulavar B.M.
Senguttuvan, Panneerselvam Vs. State, 2004 CrlLj 558. In fact, the Respondents
even offered the Petitioner reimbursement of the expenses which he stated that
he would take later. Relying upon Director CBI and Ors. Vs. Niyamavedi (2009)
10 SCC 488 and Union of India Vs. Prakash P. Hinduja and Anr. AIR 2003 SC
2612 it is contended that this Court should not interfere in the investigation and
permit the same to be carried out by the authorities concerned.
9. As regards the prayer for f and h, it is contended that the status report filed
by the Delhi Police shows that no poison was detected in the gastric lavage of the
Page 25 of 45
Petitioner and thus the act of the Petitioner was a well- planned, well-thought
measure to suppress NIA to carry out investigation fearlessly and properly. A
perusal of the facts as stated in the reply affidavit by the Respondent clearly
shows that the Petitioner was accompanied by a lawyer and no protest for the
harassment was lodged at that time. Further, the Petitioner was examined at two
time periods and was permitted to go for lunch which itself shows that there was
no illegal detention. The photographs of the register wherein the Petitioner and
his lawyer have signed have been enclosed along with the reply affidavit which
has not been denied in the rejoinder. Hence, there is no merit in the contention
that the Petitioner was illegally detained and thus coerced to make statement.
Hence the writ petition be dismissed being devoid of merit.
10. Heard learned counsels for the parties. The issues that arise for consideration
in the present petition are:
(i) Whether the Respondents on the facts and in law were competent to examine
the Petitioner at Delhi by serving a notice under Section 160 Cr.P.C. on him?
(ii) Whether the Petitioner has a right of being accompanied by an advocate at the
time of recording of statement?
(iii) Whether the act of the Respondents calling the Petitioner without serving the
notice under Section 160 Cr.P.C. and thereafter harassing/coercing him to make
a statement amounted to illegal detention, thus calling for a judicial enquiry and
compensation?
11. While dealing with the issue No. (i), it is relevant to note Section 160 Cr.P.C.
and Section 3 of the NIA Act which provide:
"160. Police Officer's power to require attendance of witnesses.
(1) Any police officer making an investigation under this Chapter may, by order in
writing, require the attendance before himself of any person being within the
limits of his own or any adjoining station who from, the information given or
otherwise, appears to be acquainted with the facts and circumstances of the case;
and such person shall attend as so required:
Provided that no male person under the age of fifteen years or woman shall be
required to attend at any place other than the place in which such male person or
woman resides.
(2) The State Government may, by rules made in this behalf, provide for the
payment by the police officer of the reasonable expenses of every person,
attending under sub-section (1) at any place other than his residence."
"3. Constitution of National Investigation Agency. (1) Notwithstanding anything
in the Police Act. 1861 (5 of 1861.), the Central Government may constitute a
special agency to be called the National Investigation Agency for investigation
and prosecution of offences under the Acts specified in the Schedule.
(2) Subject to any orders which the Central Government may make in this behalf,
officers of the Agency shall have throughout India in relation to the investigation
of Scheduled Offences and arrest of persons concerned in such offences, all the
powers, duties, privileges and liabilities which police officers have in connection
with the investigation of offences committed therein.
Page 26 of 45
(3) Any officer of the Agency of, or above, the rank of Sub- Inspector may, subject
to any orders which the Central Government may make in this behalf, exercise
throughout India, any of the powers of the officer-in-charge of a police station in
the area in which he is present for the time being and when so exercising such
powers shall, subject to any such orders as aforesaid, be deemed to be an officerin-charge of a police station discharging the functions of such an officer within
the limits of his station."
12. Section 3(1) of the NIA Act starts with a non-obstante clause providing that
notwithstanding anything in the Police Act, 1861, the Central Government may
constitute a special agency for investigation and prosecution of offences under
the Act specified in the schedule. Further, subject to any orders which the Central
Government may make in this behalf, officers of the agency shall have
throughout India in relation to the investigation of scheduled offences and arrest
of the person concerned in such offences, all powers, duties, privileges and
liabilities which Police officers have in connection with the investigation of the
offences committed therein. Thus, an officer of the NIA has jurisdiction to
investigate and arrest any person relating to scheduled offences anywhere in
India coupled with all the powers, duties, privileges and liabilities of a Police
Officer. Sub-Section (3) of Section 3, NIA Act does not restrict the power of the
Police Officer to investigate beyond the jurisdictional area where he is present
and he can exercise any of the powers of a Police Officer of the Police Station in
the area in which he is present for the time being and he would be deemed to be
an officer in-charge of the Police Station discharging the functions of such an
officer within the limits of the Station. Sub-Section 3 supplements Sub- Section
(2) by permitting any place where officer of the NIA is investigating to be treated
as a Police Station and the investigating Officer the officer in- charge of the said
Police Station. Sub-Section (3) does not override or restrict the powers of an
officer of the agency to investigate in relation to the scheduled offences and
exercises all powers, duties, privileges and liabilities of a Police officer throughout
India in relation to the investigation of the said offence. Further, NIA Act is a
special enactment. The provisions under the NIA Act will override the provisions
of the Code of Criminal Procedure, 1973.
13. No doubt, different High Courts have taken different views that Police Officer
by an order in writing can require the attendance before himself of any person
within the limits of his own or adjoining station, who appears to be acquainted
with the facts and circumstances of the case. When a Police officer is
investigating an offence, he has to investigate all the facets thereof. The power of
investigation cannot be fettered by directing a Police officer to be able to call only
persons acquainted with the facts of the case who resides either under the
jurisdiction of the Police station or adjoining thereto. Further, there can be no
limit prescribed to an adjoining station. Section 160(1) Cr.PC does not restrict the
power of a Police Officer to examine only a person who is residing within the
limits of such Police Station or adjoining Police Station. The qualifying words are
summons to a person who appears to be acquainted with the facts of the case.
The purpose of investigation is to collect material evidence. The same cannot be
restricted by limiting the scope of Section 160(1) Cr.P.C. to persons who are
residing within the limits of the said Police station or adjoining Police Station.
The contention of the Petitioner is also fallacious on the count that in a case
Page 27 of 45
where statements of number of witnesses or persons are required to be recorded

who reside within jurisdictions of different Police Stations and are required to be
confronted with each other to find out the true facts, the same would not be
possible if they cannot be called to a Police Station beyond the jurisdiction in
which they live or adjoining police station.
14. Even on facts, in the present case admittedly the first notice was issued at
Mumbai to appear at Panchkula on 5 th January, 2011. However, on speaking to
the Petitioner on phone it was found that the Petitioner was in Delhi and thus
subject to his convenience the investigation was conducted at Delhi. Even as per
the Petitioner from 3rd to 6th January, 2011 he was admittedly in Delhi. Further
though the Petitioner has stated that he ordinarily resides at Dandi Aashram,
Uttarkashi, Uttarkhand, but this fact is disputed by the Respondents. According
to Respondents, the Petitioner is a resident of Lucknow as per the address
available in the subscriber detail report of his mobile number 9021738177,
however, no notice could be served on the Petitioner at Lucknow as he was not
found there. Since Petitioner was traced at Mumbai, a notice under Section 160
Cr.P.C. was sent by ASP, NIA on 30th December, 2010 for being served upon the
Petitioner at Mumbai through ACP, ATS, Mumbai. On 3rd January, 2010, the
Petitioner was contacted over his cell phone to ascertain his location when he
informed that he was at Delhi. Since the entire NIA team which was camping at
Panchkula (Haryana) was going to Gujarat for investigation, the Petitioner was
requested if he could come to the Headquarters of Respondent No.2, located at
New Delhi. The Petitioner accepted the request again without any protest and it
was with his concurrence that the questioning was advanced to 4th January, 2011
at the Headquarter of Respondent No.2 at New Delhi. This arrangement was
made keeping the interest of the Petitioner in mind. It was convenient for the
Petitioner as it saved him from travelling all the way to Panchkula (Haryana),
which was about 250 Km from Delhi. The Respondent No.2 did not threaten the
Petitioner at any point during the telephonic conversation, as alleged by him. It is
the admitted case of the Petitioner that he is a monk and he keeps travelling
throughout the country. Thus, I find no merit in the contention that the
Petitioner was served by a notice beyond the jurisdiction of a Police Station of the
officer in-charge of the investigating team and thus no notice under Section 160
Cr.P.C. could be given to the Petitioner to join investigation at Delhi.
15. Dealing with the issue No. (ii) it would be relevant to take note of the decision
in Senior Intelligence Officer Vs. Jugal Kishore (supra). Their Lordships after
considering the decisions held as under:
"17. It may be mentioned here that in holding, "the prohibitive sweep of Article
20(3) goes back to the stage of police interrogation- not, as contended,
commencing in court only" the decision in Nandini Satpathy apparently went
against two earlier constitution bench decisions of this Court in Ramesh Chandra
Mehta v. State of West Bengal, 1969 (2) SCR 461 and Illias v. Collector of
Customs, Madras, 1969 (2) SCR 613.
18. In Nandini Satpathy, the Court proceeded further, and though the issue
neither arose in the facts of the case nor it was one of the issues framed in
Page 28 of 45
paragraph 10 of the judgment, proceeded to dwell upon the need for the presence
of the advocate at the time of interrogation of a person in connection with a case.
In paragraphs 61- 65 of the judgment, the Court made the following observations:
"61. It may not be sufficient merely to state the rules of jurisprudence in a branch
like this. The man who has to work it is the average police head constable in the
Indian countryside. The man who has to defend himself with the constitutional
shield is the little individual, by and large. The place where these principles have
to have play is the unpleasant police station, unused to constitutional nuances
and habituated to other strategies. Naturally, practical points which lend
themselves to adoption without much sophistication must be indicated if this
judgment is to have full social relevance. In this perspective we address ourselves
to the further task of concretising guidelines.
62. Right at the beginning we must notice Article 22(1) of the Constitution, which
reads:
No person who is arrested shall be detained in custody without being informed,
as soon as may be, of the grounds for such arrest nor shall he be denied the right
to consult, and to be defended by, a legal practitioner of his choice.
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. The spirit and sense of Article 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.
63. Lawyer's presence is a constitutional claim in some circumstances in our
country also, and, in the context of Article 20(3), is an assurance of awareness
and observance of the right to silence. The Miranda decision 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
think that Article 20(3) and Article 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. Overreaching Article 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-crimination secured in secrecy and by
coercing the will, was the project.
64. Not that a lawyer's presence is a panacea for all problems of involuntary selfcrimination, for he cannot supply answers or whisper hints or otherwise interfere
with the course of questioning except to intercept where intimidatory tactics are
tried, caution his client where incrimination is attempted and insist on questions
and answers being noted where objections are not otherwise fully appreciated.
He cannot harangue the police but may help his client and complain on his
behalf, although his very presence will ordinarily remove the implicit menace of a
police station.
Page 29 of 45
65. We realize that the presence of a lawyer is asking for the moon in many cases
until a public defender system becomes ubiquitous. The police need not wait for
more than for a reasonable while for an advocate's arrival. But they must
invariably warn and record that fact- about the right to silence against selfincrimination; and where the accused is literate take his written
acknowledgment."
19. It is on these passages in Nandini Satpathy that Mr. Tulsi heavily relies and
which practically forms the sheet-anchor of his case.
20. The difficulty, however, is that Nandini Satpathy was not followed by the
Court in later decisions. In Poolpandi & Ors v. Superintendent, Central Excise &
Ors., (1992) 3 SCC 259, the question before a three judge bench of this Court was
directly whether a person called for interrogation is entitled to the presence of his
lawyer when he is questioned during the investigation under the provisions of the
Customs Act, 1962 and the Foreign Exchange Regulation Act, 1973. On behalf of
the persons summoned for interrogation, strong reliance was placed on Nandini
Satpathy. The Court rejected the submission tersely observing in paragraph of 4
of the judgment as follows:
"4. Both Mr. Salve and Mr. Lalit strongly relied on the observations in Nandini
Satpathy v. P.L. Dani, (1978) 2 SCC
424. We are afraid, in view of two judgments of the Constitution Bench of this
Court in Ramesh Chandra Mehta v. State of W.B., (1969) 2 SCR 461, and Illias v.
Collector of Customs, Madras, (1969) 2 SCR 613, the stand of the appellant
cannot be accepted. The learned counsel urged that since Nandini Satpathy case
was decided later, the observations therein must be given effect to by this Court
now. There is no force in this argument."
21. Further, in paragraph 6 of the judgment, the Court referred to the
Constitution Bench decision in Ramesh Chandra Mehta and observed as follows:
"6. Clause (3) of Article 20 declares that no person accused of any offence shall be
In Ramesh Chandra Mehta case, the appellant was searched at the Calcutta
Customs authorities, which was objected to on the ground that the same were
to produce a particular document the Supreme Court observed thus: (pp.469-70)
"The expression `any person' includes a person who is suspected or believed to be
Page 30 of 45

within the meaning of Article 20(3) of the Constitution. The steps taken by the
or infringing the provisions of the Sea Customs Act with the commission of any
offence. 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."
Nandini Satpathy case which is, as will be pointed out hereinafter, clearly
distinguishable."
22. An argument in support of the right of the persons called for interrogation
was advanced on the basis of Article 21 of the Constitution. The Court rejected
that submission also observing in paragraph 9 of the judgment as follows:
"9. Mr. Salve has, next, contended that the appellant is within his right to insist
on the presence of his lawyer on the basis of Article 21 of the Constitution. He has
and Mr. Lalit that the present issue should be resolved only by applying the 'just,
that when a person is called by the Customs authorities to their office or to any
counsel to the minority view in Re Groban, 352 US 330, 1 L Ed 2d 376, declaring
that it violates the protection guaranteed by the Constitution for the State to
testimony in secret against his will."
23. Referring to the facts in Re Groban and the view taken in the minority
judgment in the case the decision in Poolpandi observed in paragraph 10 as
follows:
"10.....We do not share the apprehension as expressed above in the minority
judgment in connection with enquiry and investigation under the Customs Act
and other similar statutes of our country. There is no question of whisking away
the persons concerned in these cases before us for secret interrogation, and there
is no reason for us to impute the motive of preparing the groundwork of false
Page 31 of 45
cases for securing conviction of innocent persons, to the officers of the state duly
engaged in performing their duty of prevention and detection of economic crimes
and recovering misappropriated money justly belonging to the public. Reference
was also made to the observation in the judgment in Carlos Garza De Luna, Appt.
v. United States, American Law Reports 3d 969, setting out the historical
background of the right of silence of an accused in a criminal case. Mr. Salve has
relied upon the opinion of Wisdom, Circuit Judge, that the history of
development of the right of silence is a history of accretions, not of an avulsion
and the line of growth in the course of time discloses the expanding conception of
the right than its restricted application. The Judge was fair enough to discuss the
other point of view espoused by the great jurists of both sides of Atlantic before
expressing his opinion. In any event we are not concerned with the right of an
accused in a criminal case and the decision is, therefore, not relevant at all. The
facts as emerging from the judgment indicate that narcotics were thrown from a
car carrying the two persons accused in the case. One of the accused persons
testified at the trial and his counsel in argument to the jury made adverse
comments on the failure of the other accused to go to the witness box. The first
accused was acquitted and the second accused was convicted. The question of the
right of silence of the accused came up for consideration in this set up. In the
cases before us the persons concerned are not accused and we do not find any
justification for "expanding" the right reserved by the Constitution of India in
favour of accused persons to be enjoyed by others."
24. In the end, the Court allowed the appeal filed by the Revenue authorities in
the case in which the High Court had directed for interrogation to take place in
presence of the advocate and dismissed all the other appeals in the batch on
behalf of the individuals in whose cases the High Court had declined to give any
such direction.
25. It is seen above that the respondent applied for and got anticipatory bail on
the premise that he was not an accused in the case. There was no change in his
position or status since the grant of bail till he was summoned to appear before
the DRI officers. On the facts of the case, therefore, it is futile to contend that the
respondent is entitled, as of right, to the presence of his lawyer at the time of his
interrogation in connection with the case. Moreover, the respondent's plea for the
presence of his lawyer at the time of his interrogation clearly appears to be in
teeth of the decision in Poolpandi. Nonetheless, Mr. Tulsi contended that the
respondent's right was recognized by this Court and preserved in Nandini
Satpathy and the decision in Poolpandi has no application to the present case.
According to Mr. Tulsi, the respondent is summoned for interrogation in
connection with a case registered under the NDPS Act, which Mr. Tulsi called a
"regular criminal" case, while Poolpandi was a case under the Customs Act and so
were the two cases before the constitution bench in Ramesh Chandra Mehta and
in Illias that formed the basis of the decision in Poolpandi. In our view, the
distinction sought to be drawn by Mr. Tulsi is illusory and non-existent. The
decision in Poolpandi was in cases under the Customs Act, 1962 and the Foreign
Exchange Regulation Act, 1973. Both these Acts have stringent provisions
regarding search, seizure and arrest and some of the offences under each of these
two Acts carry a punishment of imprisonment up to 7 years. We, therefore, fail to
see, how a case registered under NDPS Act can be said to be a "regular criminal"
Page 32 of 45
case and the cases under the Customs Act and the Foreign Exchange Regulation
Act, not as criminal cases.
26. In view of the clear and direct decision in Poolpandi, we find the order of the
High Court, affirming the direction given by the Sessions Judge clearly
unsustainable."
16. Thus, as held by their Lordships, when a person is not called for interrogation
as an accused the Constitutional protections entitled to the accused will not be
available to him, the Petitioner has no right to be accompanied by a counsel when
he is called to know the facts relevant to the investigation of the offence.
17. As regards prayer f and h, it may be noted that the primary contention of
the Petitioner is that on 4th January, 2011 the Petitioner was called without a
notice under Section 160 Cr.P.C. and coerced to make a statement which
amounted to illegal detention. As per the Petitioner he received a notice on 1st
January, 2011 at Mumbai for appearing in person on 5th January, 2011 at 10.00
AM at NIA camp office, Haryana Police complex, Moginand, Panchkula,
Haryana. In pursuance to the aforesaid notice under Section 160 Cr.P.C. the
Petitioner left Mumbai on 2nd January, 2011 and reached Delhi on 3rd January,
2011 when the Petitioner received a call from one Shri Malviya claiming himself
as Inspector NIA who according to the Petitioner in a threatening tone directed
the Petitioner to meet him at the Delhi office of NIA on 4th January, 2011 at
10.00 AM failing which the Petitioner was threatened to be implicated in false
cases. According to the Petitioner he reached office of NIA at 9.45 AM on 4th
January, 2011 along with his advocate Shri Neeraj, however the officers of the
NIA did not let the advocate accompany the Petitioner and was taken to the room
alone. Inside the room the Petitioner was tortured mentally and physically and
pressurized. The interrogation went on for many hours without break. Thereafter,
the Petitioner was let off with a direction to be present on the next date i.e. 5th
January, 2011 at 11.00 AM and a formal notice under Section 160 Cr.P.C. was
handed over to him. According to the Petitioner he got scared and consumed
some poison at around 6.00 AM on 5th January, 2011. He was taken to AIIMS
hospital at 3.34 PM where he was treated. When the Petitioner was discharged
from AIIMS on 6th January, 2011 he lodged complaint with the SHO PS Hazrat
Nizamuddin giving the details of the physical and mental torture coupled with
the threats of the extended encounter by the NIA officials.
18. It may be noted that in the affidavits filed by the Respondents photocopies of
the register has been enclosed. As per the register the Petitioner entered the NIA
office at 11.10 AM and left at 13:01 PM along with Shri Neeraj Shrotriya, an
advocate. The Petitioner again came at 3.15 PM and left at 4.25 PM. This register
is a continuous register mentioning the time of the arrival and departure of each
person and there can be no tampering. In the rejoinder filed by the Petitioner the
Petitioner has not disputed this fact nor denied the entries in the register. From
the entries in the register, it is evident that the Petitioner was accompanied by an
advocate and had gone out at the lunch time as well. Thus, I find no merit in the
contention of the Petitioner that the Petitioner was continuously harassed.
19. The Petitioner claims that he took poisonous substance at around 6.00 AM on
5th January, 2011, however the first PCR call in this regard was received by Police
Page 33 of 45
post Jangpura at 12.55 PM on 5th January, 2011 stating that one Mahatma ji who
has come in Sham Sher Hotel Jangpura Extn., his condition was not well. Since
the address was incomplete, the place could not be located by the local Police as
per the PCR Van. At 2.40 PM another PCR call was received at P.P. Jangpura that
one person had consumed poison at Sham Sher Hotel near Mother Dairy
Jangpura. The Police staff reached there and one Anant Brahamchari was lying
unconscious in room No. 102. One empty tablet strip of ZEPOSE and one bottle
of Mortein cockroach killer (Empty) were found on his bed. He was rushed to
AIIMS where he was declared unfit for statement. From his possession, notice
under Section 160 Cr.P.C. in his name by Shri Vishal Garg, ASP NIA, an election
card, a copy of the application given to Police Station Mumbai, copy of SLP filed
before the Honble Supreme Court being SLP Crl. No. 5908/2010 titled as
Pragya Singh Chandrapal Singh Thakur Vs. State of Maharastra and one khaki
envelope torn from one side was found. On the khaki envelope it was written
"NIA aur bharat sarkar ke karan ishwar ke samukh aatam samarparan kar raha
hui, mujhe nayay chahiye" On 6 th the statement of the Petitioner was recorded
wherein he alleged harassment and physical and mental torture. It may be noted
that there is no record to show that the Petitioner had injuries when he was taken
to AIIMS. Further, the CFSL report with regard to gastric lavage of the Petitioner
has been received which has been filed by the Station House Officer, PS Hazrat
Nizamuddin. As per the report "on chemical, TLC, GC-HS & GC-MS examination,
metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids,
barbiturates, tranquilizers and pesticides could not be detected in exhibits 1,
2, 3 & 4." Thus it is apparent that though poison was allegedly consumed at
around 6.00 AM on 5th January, 2011 the intimation was sent in the afternoon
and no poison was detected. In view of the facts surfacing on record, I do not find
any merit in the contention of the learned counsel for the Petitioner that the
Petitioner was tortured to such an extent that the Petitioner attempted to commit
suicide.
20. In the facts of the case and in view of the aforesaid discussion, I find no merit
in the present petition. The petition is dismissed. Since the Petitioner has
knowledge of all the facts, he is alleging, he would be at liberty to file a criminal
complaint if so advised.
(MUKTA GUPTA) JUDGE MARCH 20, 2012 'ga'
Page 34 of 45
Delhi High Court

Krishan vs R.K. Virmani, Air Customs Officer on 24 April, 2012
Author: Mukta Gupta
*
IN THE HIGH COURT OF DELHI AT NEW DELHI
+
Crl. Rev.P. No. 516/2008
%
15th February, 2012
Reserved on:
Decided on:
24th April, 2012

KRISHAN
.... Petitioner
.
Through:
Mr. Naveen
Malhotra, Mr. Nitendra

Kumar, Advs.
versus
R.K. VIRMANI, AIR CUSTOMS OFFICER
Respondent
.....
Through: Mr. Satish Aggarwala, Adv.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By this petition the Petitioner seeks setting aside of order dated 20th June,
2008 whereby the Learned ACMM, New-Delhi ordered framing of charges
against the Petitioner under Section 135 A of the Customs Act, 1962 and the
Page 35 of 45
consequential order dated 18th August, 2008 framing charge in case No. 507/1
titled as R.K. Virmani Vs. Shri. Krishan.
2. Learned counsel for the Petitioner contends that the statement of the
Petitioner recorded under Section 108 of the Customs Act is exculpatory in
nature and the statement of Virender Singh Batra, recorded under Section 108 of
the Customs Act, 1962 cannot be relied upon for the purpose of framing charges
as he was not examined as a witness in terms of Section 244 Cr.P.C in the
complaint case. Reliance is placed on Mohtesham Mohd. Ismail Vs. Spl. Director,
Enforcement Directorate & Anr. 2007 (11) SCALE
741. Relying on Ripen Kumar Vs. Department of Customs, 2001 Cr.LJ 1288 and
Anand Kumar Vs. Naresh Arora, 2006 (3) JCC 1491 it is further contended that
the testimony of Subhash Narain (PW1) recorded during the pre-trial stage
cannot be relied upon as his testimony is not complete. Further since Virender
Singh Batra is not being tried jointly, his statement is not admissible under
Section 30 of the Evidence Act.
3. Learned Counsel for the Respondent contends that only a prima facie case
needs to be made out against the Petitioner at the stage of framing of charge. He
further contends that the statement of Virender Singh Batra recorded under
Section 108 of the Customs Act, 1962 can be read as evidence against the
Petitioner for prima facie making out a case against him and thus, there is
sufficient evidence at this stage for framing charge against the Petitioner.
4. I have heard the learned counsels for the parties. Briefly the facts giving rise to
the present petition are that on 15th October, 1992, on the basis of a secret
information, one Virender Singh Batra was apprehended by the Respondent, R.K.
Virmani while he was in flight no. BA 035 on seat no.33G. He was found in
possession of foreign currency equivalent to Rs.18,01,236.35, which he had not
declared before the customs officials. His statement was recorded under Section
108 Customs Act, 1962 by one Shri Subhash Narain wherein, he admitted the
recovery and further stated that he was helped in carrying this foreign currency
out of India by Shri Krishan, the Petitioner herein, who was working as Aero
Bridge Operator at IGI Airport for a consideration of Rs. 5000/-. Statement of
the Petitioner was also recorded under Section 108 of the Customs Act, 1962
wherein he denied delivery of the said currency to Virender Singh Batra.
Thereafter, on 5th November, 1993, a complaint was filed by the Respondent
before the Ld.
ACMM, New-Delhi against the Petitioner for offences punishable under Sections
135 (1) (a) and 135 A Customs Act, 1962. In the said complaint, statements of two
witnesses namely PW1 Subhash Narain and PW2 R.K. Virmani were recorded
during pre-charge evidence under Section 244 CrPC. Subsequently, on 20th
June, 2008 the Learned ACMM, New-Delhi ordered the framing of charge under
Section 135 A Customs Act, 1962 and as a consequence of which, charges against
the Petitioner under Section 135 A Customs Act, 1962 was framed vide order
dated 18th August, 2008.
Page 36 of 45
5. Before dealing with the first contention of the Petitioner that the statement of
Virender Singh Batra, recorded under Section 108 Customs Act, cannot be looked
at for the purpose of framing charges as he was not examined under Section 244
Cr.P.C., it would be necessary to reproduce Section 108 of the Customs Act:
"SECTION 108. Power to summon persons to give evidence and produce
documents. - (1) Any Gazetted Officer of customs shall have power 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 under this Act.
(2) A summons to produce documents or other things may be for the production
of certain specified documents or things or for the production of all documents or
things of a certain description in the possession or under the control of the
person summoned.
(3) All persons so summoned shall be bound to attend either in person or by an
authorised agent, as such officer may direct; and all persons so summoned shall
be bound to state the truth upon any subject respecting which they are examined
or make statements and produce such documents and other things as may be
required :
Provided that the exemption under section 132 of the Code of Civil Procedure,
1908 (5 of 1908), shall be applicable to any requisition for attendance under this
section.
(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding
within the meaning of section 193 and section 228 of the Indian Penal Code, 1860
(45 of 1860).
6. From the perusal of the section, it is evident that the inquiry under Section 108
Customs Act is deemed to be a judicial proceeding by virtue of sub-section 4 and
the person who is summoned under this section is bound to appear and state the
truth while giving evidence. If he does not do so he makes himself liable for
prosecution under Sections 193 and 228 IPC. Their Lordships in Percy Rustomji
Basta v. State of Maharashtra, 1971 (1) SCC 847 held:
"22. We are not inclined to accept the contention of Mr Chari that in the
circumstances mentioned above any threat has proceeded from a person in
authority to the appellant, in consequence of which the statement Ex. T was
given. Section 108 of the Act gives power to a Customs Officer of a gazetted rank
to summon any person to give evidence in any inquiry in connection with the
smuggling of any goods. The inquiry made under this section is by virtue of subsection (4) deemed to be judicial proceeding within the meaning of Sections 193
and 228 of the Indian Penal Code. A person summoned under Section 108 of the
Act is bound to appear and state the truth when giving the evidence. If he does
not answer he would render himself liable to be prosecuted under Section 228
IPC. If, on the other hand, he answers and gives false evidence, he would be liable
to be prosecuted under Section 193 IPC for giving false evidence in a judicial
proceeding. In short, a person summoned under Section 108 of the Act is told by
the statute itself that under threat of criminal prosecution he is bound to speak
what he knows and state it truthfully. But it must he noted that a compulsion to
speak the truth, even though it may amount to a threat, emanates in this case
Page 37 of 45
note from the officer who recorded the statement, but from the provisions of the
statute itself. What is necessary to constitute a threat under Section 24 of the
Evidence Act is that it must emanate from the person in authority. In the case
before us there was no such threat emanating from PW 5, who recorded the
statement of PW 19, who was guiding the proceedings. On the contrary the
officers recording the statement were only doing their duty in bringing to the
notice of the appellant the provisions of the statute. Even if PW 5 had not drawn
the attention of the appellant to the fact that the inquiry conducted by him is
deemed to be a judicial proceeding, to which Section 193 IPC applies, the
appellant was bound to speak the truth when summoned under Section 108 of
the Act with the added risk of being prosecuted, if he gave false evidence."
7. In Ramesh Chandra Mehta v. the State of West Bengal, AIR 1970 SC 940, the
Constitution Bench while examining the admissibility of a statement recorded
under Section 171A of the Sea Customs Act, 1878 (now repealed) corresponding
to Section 108 of the Customs Act, 1962 held:
"24. In certain matters the Customs Act of 1962 differs from the Sea Customs Act
of 1878. For instance, under the Sea Customs Act search of any place could not be
made by a Customs Officer of his own accord: he had to apply for and obtained a
search warrant from a Magistrate. Under Section 105 of the Customs Act, 1962, it
is open to the Assistant Collector of Customs himself to issue a search warrant. A
proper officer is also entitled under that Act to stop and search conveyances: he is
entitled to release a person on bail, and for that purpose has the same powers and
is subject to the same provisions as the officer in charge of a police station is. But
these additional powers with which the Customs Officer is invested under the Act
of 1962 do not, in our judgment, make him a police officer within the meaning of
Section 25 of the Evidence Act. He is, it is true, invested with the powers of an
officer in charge of a police station for the purpose of releasing any person on bail
or otherwise. The expression "or otherwise" does not confer upon him the power
to lodge a report before a Magistrate under Section 173 of the Code of Criminal
Procedure. Power to grant bail, power to collect evidence, and power to search
premises or conveyances without recourse to a Magistrate, do not make him an
officer in charge of a police station. Proceedings taken by him are for the purpose
of holding an enquiry into suspected cases of smuggling. His orders are
appealable and are subject also to the revisional jurisdiction of the Central Board
of Revenue and may be carried to the Central Government. Powers are conferred
upon him primarily for collection of duty and prevention of smuggling. He is for
all purposes an officer of the revenue.
25. For reasons set out in the judgment in Criminal Appeal No. 27 of 1967 and the
judgment of this Court in Badku Joti Savant case, 1966-3SCR698= (AIR 1966 SC
1746) we are of the view that a Customs Officer is under the Act of 1962 not a
police officer within the meaning of Section 25 of the Evidence Act and the
statements made before him by a person who is arrested or against whom an
inquiry is made are not covered by Section 25 of the Indian Evidence Act."
8. Thus, it is evident that a statement made by a person, who is subsequently
made an accused, before a Customs Officer under Section 108 of the Customs Act
is a confession made to a person other than a police officer and thus not hit by the
bar of admissibility under Section 25 of the Evidence Act.
Page 38 of 45
9. The next issue that arises for consideration is whether it is essential to examine
the maker of the confession or the person before whom this confession by coaccused has been made can prove the confession. The law on the point is well
settled. An accomplice is a competent witness against the co-accused. In case the
accomplice is cited as a witness then it is essential to examine him under Section
244 Cr.P.C. However if the confession of the co-accused made to any person has
to be proved, then the confession so recorded has to be exhibited like any other
document under Section 244 Cr.P.C. At this stage it would also be relevant to
reproduce Section 244 Cr.PC:" Sec. 244 Evidence for prosecution. (1) When, in any warrant- case instituted
otherwise than on a police report, the accused appears or is brought before a
Magistrate, the Magistrate shall proceed to hear the prosecution and take all such
evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons
to any of its witnesses directing him to attend or to produce any document or
other thing".
10. Sub-Section (1) of Section 244 Cr.P.C. employs the words shall and may.
So when these two words are used together in Sub-Section (1) of Section 244
Cr.P.C., in the sense that they are generally used, denote that words "the
Magistrate shall proceed to hear" would mean that the Magistrate is under a duty
to hear the witnesses at the pre-charge stage. However, these witnesses are the
ones that may be produced by the prosecution in support of their case thus, the
prosecution is under no duty to produce all its witnesses at this stage. Further
under Sub-Section 2 of Section 244 Cr.P.C. the Magistrate is under no obligation
to summon any witness on his own. It is only on the application of the
prosecution that the witnesses are produced at this stage. Thus, it is clear that at
the pre-charge stage the discretion to produce a witness lies with the prosecution
and not the court or the accused. Further the prosecution at this stage needs to
satisfy the court of the existence of a prima facie; case for the purpose of framing
charges.
11 Their Lordships in R.S. Nayak vs. A.R. Antulay, AIR 1986 SC 2045 observed:
"44. .......The Code contemplates discharge of the accused by the Court of
Sessions under Section 227 in a case triable by it; cases instituted upon a police
report are covered by Section 239 and cases instituted otherwise than on police
report are dealt with in Section 245. The three sections contain some what
different provisions in regard to discharge of the accused. Under Section 227, the
trial Judge is required to discharge the accused if he 'considers that there is no
sufficient ground for proceeding against the accused.' Obligation to discharge the
accused under Section 239 arises when "the Magistrate considers the charge
against the accused to be groundless." The power to discharge is exercisable
under Section 245(1) when "the Magistrate considers, for reasons to be recorded,
that no case against the accused has been made out which, if unrebutted, would
warrant his conviction." It is a fact that Sections 227 and 239 provide for
discharge being ordered before the recording of evidence and the consideration
as to whether charge has to be framed or not is required to be made on the basis
of the record of the case, including documents and oral hearing of the accused
Page 39 of 45
and the prosecution or the police report, the documents sent along with it and
examination of the accused and after affording an opportunity to the two parties
to be heard. The stage for discharge under Section 245, on the other hand, is
reached only after the evidence referred to in Section 244 has been taken.
Notwithstanding this difference in the position there is no scope for doubt that
the stage at which the Magistrate is required to consider the question of framing
of charge under Section 245(1) is a preliminary one and the test of "prima facie"
case has to be applied. In spite of the difference in the language of the three
sections, the legal position is that if the trial Court is satisfied that a prima facie
case is made out, charge has to be framed".
12. It was further observed by this Court in Mathura Dass & Ors. vs. State
2003(2) JCC 639 as:"7. After considering the submissions made by learned counsel for the parties and
examining the material on record, this Court is of the considered view that a
Judge, at the time of framing of charge, is not to act merely as a post-office or
mouth-piece of the prosecution, but has powers to sift and weigh the evidence but
for a limited purpose only. This exercise has to be undertaken by him only with a
view to find out as to whether a prima facie case is made out or not. The existence
of a prima facie case may be found even on the basis of strong suspicion against
an accused. The assessment, evaluation and weighing of the prosecution evidence
in a criminal case at the final stage is on entirely different footing than it is at the
stage of framing a charge. At the final stage if two views are possible, one of which
suggests that the accused may be innocent, then the view favorable to the accused
has to be accepted whereas at the stage of framing of the charge, the view which is
favorable to the prosecution, has to be accepted for the purpose of framing charge
so that in the course of the trial, the prosecution may come out with its
Explanations in regard to the draw-backs and weaknesses, if any, being pointed
but by an accused."
13. Thus, if the prosecution is able to prove the existence of a prima facie case on
production of a few and not all witnesses, charge has to be framed against the
accused. Further, from perusal of Mathura Dass & Ors.(supra) it can be seen that
at the stage of framing charges, if two views are possible, one that favours the
prosecution has to be taken. In the present case though the accomplice Virender
Singh Batra has been cited as a witness, however he has not been examined under
Section 244 Cr.P.C. Thus, there is no evidence in the form of accomplice evidence
before the Court to form a prima facie opinion that charge can be formed against
the Petitioner.
14. In Naresh J. Shukawani Vs. Union of India 1996 (83) ELT 258 (SC) it was
observed that the statement made before the Customs officials is not a statement
recorded under Section 161 of the Criminal Procedure Code, 1973 and therefore,
it is a material piece of evidence collected by Customs officials under Section 108
of the Customs Act. It was further stated by the Honble Court that if such a
statement incriminates the accused, inculpating him in the contravention of the
provisions of the Customs Act, it can be considered as a substantive evidence to
connect the accused with the contravention of the provisions of this Act. Para 4 of
the said judgment is thus reproduced as:Page 40 of 45
"4. It must be remembered that the statement made before the Customs officials
is not a statement recorded under Section 161 of the Criminal Procedure Code,
1973. Therefore, it is a material piece of evidence collected by Customs officials
under Section 108 of the Customs Act. That material incriminates the petitioner
inculpating him in the contravention of the provisions of the Customs Act. The
material can certainly be used to connect the petitioner in the contravention
inasmuch as Mr. Dudani's statement clearly inculpates not only himself but also
the petitioner. It can, therefore, be used as substantive evidence connecting the
petitioner with the contravention by exporting foreign currency out of India.
Therefore, we do not think that there is any illegality in the order of confiscation
of foreign currency and imposition of penalty. There is no ground warranting
reduction of fine."
15. The learned Counsel for the Petitioner has placed reliance on Mohtesham
Mohd. Ismail Vs. Spl. Director, Enforcement Directorate & Anr. (2007) 8 SCC
254 in support of his contention that the statement recorded u/s 108 Customs
Act cannot be looked at the stage of framing charge as the same was not recorded
under Section 244 Cr.P.C at the pre-trial stage. However, on perusal of the said
judgment especially para 20, it is evident that the Honble Supreme Court has
stated that such statements are, although, not inadmissible, they should be
scrutinized by the Court in the same manner as confessions made by an accused
person to any non-police personnel. Thus, according to the Honble Supreme
Court it should also pass the test of Section 24 of the Evidence Act. It was held:"20. In The Assistant Collector of Central Excise, Rajamundry v. Duncan Agro
Industries Ltd. 2000 CriLJ 4035, this Court held:
...The inculpatory statement made by any person under Section 108 is to nonpolice personnel and hence it has no tinge of inadmissibility in evidence if it was
made when the person concerned was not then in police custody. Nonetheless the
caution contained in law is that such a statement should be scrutinised by the
court in the same manner as confession made by an accused person to any nonpolice personnel. The court has to be satisfied in such cases, that any inculpatory
statement made by an accused person to a gazetted officer must also pass the
tests prescribed in Section 24 of the Evidence Act. If such a statement is impaired
by any of the vitiating premises enumerated in Section 24 that statement
becomes useless in any criminal proceedings."
16. This Court in Paramjit Singh vs. Commissioner of Customs & Others 2002 (2)
JCC 916 further observed that the statement of any person called for enquiry by
the customs officer under the Customs Act can be recorded by such officer and
such a statement is admissible in evidence by virtue of Section 30 of the Evidence
Act and the protection under Article 20 (3) of Constitution of India is not
available at the stage of recording of such statement the person giving the
statement is not an accused. Their Lordships thus observed:"5. As per settled law, statement of any person called for enquiries during
investigation by the authorities under the Customs Act, can be recorded by the
customs officer. Such statement is admissible in evidence. Protection under
Article 20(3) of the Constitution of India is not available at that stage (see
Page 41 of 45
Poolpandi etc.etc. v. Superintendent, Central Excise and others etc.etc., 1992

CriLJ 2761 ). The confession of the co- accused in the case would also be
admissible by virtue of Section 30 of the Evidence Act. As per statement of
witnesses, the petitioner absconded after the seizure. His conduct would be
relevant."
17. The contention of learned counsel for the Petitioner at this stage is that the
statement was not recorded under Section 244 Cr. P. C at the pre- trial stage and
hence, inadmissible as evidence for framing charges. The reliability of the
statement will have to be examined during trial. At this stage, it is sufficient to
hold that the statement is admissible without examining the co-accused as a
witness if the person before whom the confession is made is examined under
Section 244 Cr.PC. As can be observed from the conjoint reading of the
judgments in Percy Rustomji Basta (supra), Ramesh Chandra v. the State of West
Bengal (supra), Naresh J. Shukawani(Supra.) and Paramjit Singh(Supra.), a
statement recorded by Customs officer under section 108 of the Customs
Act,1962 is admissible in evidence and not hit by provisions of Article 20(3) of
the Constitution or Section 25 of the Evidence Act. Further, such statement is
presumed to be truthful as it is recorded under a proceeding which is judicial in
nature and if upon such statement a prima facie case can be made out for framing
the charge, by virtue of R.S. Nayak (Supra) and Mathura Das (supra), the
Magistrate is well within his powers to order framing of charges.
18. Thus, though Virender Singh Batra was not called as a witness, his statement,
recorded under Section 108 Customs Act, can definitely be looked at the stage of
framing charges by virtue of the judgments aforementioned. Further the said
statement of Virender Singh Batra stands proved by the testimony of PW1
Subhash Narayan who in his statement under Section 244 Cr.P.C., stated that he
recorded the statement of Virender Singh Batra and exhibited the same. Also
PW2 in his testimony under Section 244 Cr.P.C. stated that Virender Singh Batra,
during his interrogation, stated that the packets containing the foreign exchange
apprehended from him were handed over to him by the Petitioner.
19. However, the moot question is whether the statement of Virender Singh Batra
recorded under Section 108 Customs Act duly proved by PW1 Subhash Narayan
is admissible for the further reason that he is not jointly tried with the Petitioner.
I find force in the contention of learned counsel for the Petitioner. A confession of
the co-accused is admissible only under Section 30 of the Evidence Act. One of
the essential requirements of the said provision is that the two accused should be
tried jointly. Since the confession of the co-accused is not admissible as he is not
being jointly tried with the Petitioner and besides this piece of evidence there is
no other evidence, no charge can be framed against the Petitioner for offence
under Section 135A of the Customs Act.
20. Hence the order dated 20th June, 2008 directing framing charge and the
consequent order dated 18th August, 2008 framing charge against the Petitioner
for offence under Section 135A Customs Act are set aside. Petition is disposed of
accordingly.
(MUKTA GUPTA) JUDGE APRIL 24, 2012 'ag'
Page 42 of 45
Page 43 of 45
Senior Intelligence Officer vs Jugal Kishore Samra on 5 July, 2011

Showing the contexts in which Nandini Satpathy v. P.L. Dani, appears in the
document
Court on his appeal. 12. Mr. K. T. S. Tulsi, Senior Advocate, appearing for the
respondent stoutly defended the order passed by the Sessions judge and affirmed
by the High Court. He invoked the rights guaranteed under Articles 20(3), 22(1)
and 22(2) of the Constitution of India to justify the respondent's plea that his
interrogation can take place only in presence of his lawyer. In support of the
submission he placed great reliance on a decision by a bench of three judges of
this Court in Nandini Satpathy v. P. L. Dani, (1978) 2 SCC 424. 13. Nandini
Satpathy, a former Chief Minister of the State of Orissa was named as one of the
accused in a case registered under sections 5 (2) read with section 5 (1) (d) & (e)
of the Prevention of Corruption Act, 1947, and under sections 161, 165 and 120B
and 109 of the Penal Code on the allegation of amassing assets disproportionate
to her known and licit sources of income. For interrogation in connection with
that case she was sent a long questionnaire along with summons to appear before
the investigating officer on the fixed date and time
before the investigating officer as required by the summons where-upon the
investigating officer filed a complaint against her under section 179 of the Penal
Code. The Sub-Divisional Judicial Magistrate took cognizance of the offence and
issued process against her. Questioning the order of the magistrate as violative of
her right to silence she challenged it first before 7 the High Court of Orissa and on
being unsuccessful there brought the matter to this Court. 14. The decision of the
Court in the case of Nandini Satpathi was delivered by Justice Krishna Iyer
and it is a fine example of his Lordship's inimitable polemical style of writing.
The boldness of Miranda v. Arizona, (1966) 384 US 436 as an instance of judicial
innovation and positivism was still quite fresh and taking Miranda as a source of
inspiration, Iyer J., pondered over issues of Judicial philosophy and speculated
about the frontiers to which he would have liked to expand the constitutional
guarantee under Article 20(3), maintaining, of course, the fine balance between
the rights of the individual and the social obligation "to discover guilt, wherever
hidden, and to fulfill the final tryst of the justice system with
other hand, if there is any mode of pressure, subtle or crude, mental or physical,
direct or indirect, but sufficiently substantial, applied by the policeman for
obtaining information from an accused strongly suggestive of guilt, it becomes
'compelled testimony', violative of Article 20(3)." 17. It may be mentioned here
that in holding, "the prohibitive sweep of Article 20(3) goes back to the stage of
police interrogation-not, as contended, commencing in court only" the decision
in Nandini Satpathy apparently went against two earlier constitution bench
decisions of this 9 Court in Ramesh Chandra Mehta v. State of West Bengal, 1969
(2) SCR 461 and Illias v. Collector of Customs, Madras, 1969 (2) SCR 613. 18. In
Nandini Satpathy, the Court proceeded further, and though the issue neither
arose in the facts of the case nor it was one of the issues framed in paragraph 10
of the judgment, proceeded to dwell upon the need for the presence of the
advocate at the time of interrogation of a person in connection with a case. In
paragraphs 61-65 of the judgment, the Court made the following observations:
"61. It may not be sufficient merely to state the rules
Page 44 of 45
fact- about the right to silence against self-incrimination; and where the accused
is literate take his written acknowledgment." 11 19. It is on these passages in
Nandini Satpathy that Mr. Tulsi heavily relies and which practically forms the
sheet-anchor of his case. 20. The difficulty, however, is that Nandini Satpathy
was not followed by the Court in later decisions. In Poolpandi & Ors v.
Superintendent, Central Excise & Ors., (1992) 3 SCC 259, the question before a
three judge bench of this Court was directly whether a person called for
interrogation is entitled to the presence of his lawyer when he is questioned
during the investigation under the provisions of the Customs Act, 1962 and the
Foreign Exchange Regulation Act, 1973. On behalf of the persons summoned for
interrogation, strong reliance was placed on Nandini Satpathy. The Court
rejected the submission tersely observing in paragraph of 4 of the judgment as
follows: "4. Both Mr. Salve and Mr. Lalit strongly relied on the observations in
Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424. We are afraid, in view of
two judgments of the Constitution Bench of this Court in Ramesh Chandra Mehta
v. State
Page 45 of 45

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Though it is not often that assesses are summoned before Central Excise Officers, usually,

All persons so summoned shall be bound to attend, either in person or by an

Every such inquiry as aforesaid shall be deemed to be a "judicial proceeding" within

Supreme Court of India

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEAL NO. 1266 OF 2011

Jugal Kishore Samra

specified in Government of India's notification S.O. 826(E), dated November 14,

8. Aggrieved by the order of the Metropolitan Sessions Judge dated December 1,

development of the right of silence is a history of accretions, not of an avulsion

Supreme Court of India

1992 SCR (3) 247

HELD : 1.1.The persons

legitimate objection in depriving them of

cal position as an accused and consequently should be allowed the protection

Delhi High Court

W.P.(CRL) No. 55/2011

Reserved on: 31st

where statements of number of witnesses or persons are required to be recorded

because he is found in possession of smuggled goods or on suspicion that he is

Delhi High Court

Crl. Rev.P. No. 516/2008

24th April, 2012

Malhotra, Mr. Nitendra

Through: Mr. Satish Aggarwala, Adv.

Poolpandi etc.etc. v. Superintendent, Central Excise and others etc.etc., 1992

Senior Intelligence Officer vs Jugal Kishore Samra on 5 July, 2011

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