Case: Poolpandi Etc. Etc Vs. Superintendent, Central Excise Andothers Etc. Etc

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.

Reasoning:
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 be treated to have in any way diluted the ratio in Romesh Chandra Mehtas 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 thedecision 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 Ramanlals 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.We are afraid the judgment of the United States Supreme Court in Re Grabons case :0, 1 Lawyer Edition 2d 376; is of no assistance to thehave gone through the minority view in the judgment of Black, J. and are not impressed by thedo 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 theJudge 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 argument 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 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 non-cooperative 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.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.