----Respondents D.B. Civil Writ Petition No. 2396/2019 Sanwar Lal Sen S/o Shri Sukhdev Sen Sadar, Aged About 31 Years, By Caste Sain, R/o Khatiyo Ka Mandir, Ratakot, Bijay Nagar, Ajmer (Raj.)

----Petitioner Versus

1. Union Of India, Through Directorate Of Revenue Intelligence, Jaipur Regional Office, Delhi Zonal Unit, Jaipur.

2. Additional Director General, Directorate Of Revenue Intelligence, Jaipur Regional, 8 And 9, Bhagat Vatika- I, Civil Lines, Jaipur, Raj.

3. State Of Rajasthan, Through Ld. Public Prosecutor.

----Respondents D.B. Civil Writ Petition No. 6224/2019

1. Laxman Gurjar S/o Shri Amraram Gurjar, Aged About (Downloaded on 06/06/2021 at 11:51:47 PM) (2 of 52) [CRLW-1078/2018] 28 Years, By Caste Gurjar, R/o Singawal, Singawal, Bijai Nagar, Ajmer, Rajasthan - 305624

2. Abhishek Kumawat S/o Shri Gopal Swaroop, Aged About 27 Years, By Caste Kumawat R/o Beawar Road, Nadi Mohalla, Bijainagar, Bijainagar, Ajmer Rajasthan, 305624, At Present R/o Geeta Kunnj, Block No. B-7, House No. 83, Rajdarbar, Colony, Bijainagar Dist. Ajmer, Rajasthan.

----Petitioners Versus

1. Union Of India, Through Secretary Of Finance, North Block, Cabinet Secretariat, Raisina Hills, New Delhi - 110001

2. Superintendent Commissioner Of The Customs (Preventive Branch), HQ At N.C.R. Building, Statute Circle, C-Scheme, Jaipur 302005, Rajasthan.

----Respondents D.B. Civil Contempt Petition No.292/2019 Sanwar Lal Sen S/o Shri Sukhdev Sen Sadar, Aged About 31 Years, By Caste Sain, R/o Khatiyo Ka Mandir, Ratakot, Bijay Nagar, Ajmer (Raj.) 305624.

----Petitioner Versus

1. Mr. Nirmal Jharwal (S.I.O.), For Union Of India Through Directorate Of Revenue Intelligence, Jaipur Regional Office, Delhi Zonal Unit, Jaipur.

2. Shri Chander Shakhar, Additional Director General Directorate Of Revenue Intelligence, Jaipur Regional, 8 And 9, Bhagat Vatika-I, Civil Lines, Jaipur, Raj. 302006.

3. Shri Sudhir Kumar Sharma, Special Secretary, Home Department, Govt. Of Rajasthan.

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment //Reportable// Per Hon'ble Mr. Justice Mohammad Rafiq:

(Downloaded on 06/06/2021 at 11:51:47 PM)

Writ Petition (Criminal) No.1078/2018 has been filed by five petitioners, namely, Pukhraj Ramdev Padiyar, Rajendra Shivraj Byawat, Hemant Kumar Purshottam Bhambi, Mahaveer Bannalal Choudhary and Dinesh Kumar Ramdhan Meghwanshi praying for a direction prohibiting officers of the respondent no.2 from arresting them under Section 104 of the Customs Act, 1962 and summoning any of them under Section 108 of the Customs Act, 1962 without following the mandatory provisions of the Code of Criminal Procedure , as contained in Sections 154 to 157 , 167, 172 and other applicable provisions thereof, in view of absence of any embargo in the Customs Act, 1962 from the application of such provisions of the Code of Criminal Procedure . Further prayer is made for permitting the petitioners to have an Advocate at visible, but not audible distance during their interrogation by the Officers of the Directorate of Revenue Intelligence in DRI Case No.DRI/DZU/JRU/19/INT-11/ENQ-1/2018 in accordance with the direction given by the Supreme Court in Vijay Sajnani Vs. Union of India, Cril. M.P. No.10117 of 2012 in WP (Crl.) 29 of 2012, which may also be directed to be video-graphed in terms of order dated 07.12.201 in Writ Petition (Civil) No.389 of 2010 of the Supreme Court in Rajinder Arora and Others Vs. Union of India and Others . Further prayer is also made that the officers of the respondent no.2 be restrained from taking any coercive action against the petitioners prejudicing their personal liberty. (Downloaded on 06/06/2021 at 11:51:47 PM)

(4 of 52) [CRLW-1078/2018] Writ Petition No.2396/2019 has been filed by petitioner Sanwar Lal Sen for a direction prohibiting the officers of the respondents from arresting him under the provisions of the Customs Act, 1962 , without following mandatory provisions of the Constitution of India, Code of Criminal Procedure and other applicable provisions thereof. Prayer has been also made to permit his advocate to accompany him during interrogation and restrain the respondents from taking any coercive action against him, prejudicial to his personal liberty. Similar prayers have been made in Writ Petition No.1078/2018 filed by petitioners, namely, Pukhraj Ramdev Padiyar, Rajendra Shivraj Byawat, Hemant Kumar Purshottam Bhambi, Mahaveer Bannalal Choudhary and Dinesh Kumar Ramdhan Meghwanshi, and Writ Petition No.6224/2019 filed by petitioners, namely, Laxman Gurjar and Abhishek Kumawat. Contempt Petition No.292/2019 has been filed by petition Sanwar Lal Sen alleging contempt of the order of this Court dated 04.02.2019 by the respondents.

The case set up by five petitioners in Writ Petition (Criminal) No.1078/2018 is that they apprehend their arrest by the respondents in exercise of powers under Section 104 of the Customs Act, 1962, for either cognizable or any non- cognizable offence punishable, under Section 135 of the Customs Act, 1962, in respect of which the mandatory procedure prescribed in Chapter XII of Cr.P.C ., particularly in Section 154 to 157 , 167 and 172 and other applicable provisions has not been followed for commencing and continuing investigation. Neither any order of Magistrate has (Downloaded on 06/06/2021 at 11:51:47 PM) (5 of 52) [CRLW-1078/2018] been obtained for non-cognizable offence under the Customs Act, 1962 nor any warrant of arrest has been obtained under Section 155 (3) of the Cr.P.C. The petitioners came to Mumbai in the year 2001 and worked in diamond line up to the year 2012. All the imports and exports were made at the behest and instructions of Mr. Girish Kadel, through his company M/s. Gurukul Exim Private Limited but he did not pay a single paisa to the petitioners. To the utter shock and surprise of the petitioner no.1, the officers of the respondent no.2 conducted a search at his residential premises, however, nothing incriminating was found there. Copy of the panchnama was provided to his family members as the petitioner no.1 was not present at the said address. By the aforesaid notice, the respondent no.2 called the petitioner no.1 to their office at Jaipur on 23.10.2018 at 11:00 AM. Similarly, search was conducted on the residential premise of petitioner no.2 on 17.10.2018, however, nothing incriminating was found. Copy of the panchnama was provided to his family member as he was not present there. He too was also called upon to attend the office of respondent no.2 on 22.10.2018 at 11:30 AM. Similar notice was served on the petitioners no.3 for appearance on 25.10.2018 at 09:30 AM, as also petitioner no.4 for appearance on 24.10.2018 at 11:00 AM.

Sanwar Lal Sen, petitioner in Writ Petition No.2396/2019, has also alleged that he came to Mumbai and started working in the textile industry. The petitioner named his firm as M/s. Vikash Enterprises and started operations in the name of the aforesaid firm through the contracts of one Mr. Avinash HK. All (Downloaded on 06/06/2021 at 11:51:47 PM) (6 of 52) [CRLW-1078/2018] the operation in the aforesaid firms were arranged, looked after and controlled by Mr. Avinash HK. The petitioner has no nexus with the firm M/s. Vikash Enterprises nor was he associated with its operation in any manner whatsoever. The petitioner used to raise invoices upon the purchasers as per the instructions of Mr. Avinash HK and his associates and upon the receipt of the same, all the earnings and profits were remitted to Mr. Avinash HK and his associates. To the utter shock and surprise of the petitioner, the respondent authorities on 18.01.2019 conducted a search operation at the residential premises of the petitioner, however, nothing incriminating was found there. The petitioner was not found present there, yet summons were handed over to his family member, whereby the petitioner was required to attend the office of the Directorate of Revenue Intelligence, Regional Unit, Jaipur.

Petitioners Laxman Gurjar and Abhishek Kumawat in Writ Petition No.6224/2019 have stated that petitioner no.1 originally hails from district Ajmer. Owing to financial crunch and for better future prospects, he shifted to Surat and worked at the behest and guidance of one Mr. Sushil Verma, who was a renowned diamond trader/businessman. Gradually, the petitioner mastered the art of trading in the diamond line, along-with some basic accounting work. The petitioner no.1 then came in contact with one Mr. Shri Ram Aryal Sharma @ Nitin Shah in 2018, who assured to do the trading of color/precious stone through the petitioner's company and that he would give 0.25% commission to the petitioner as a consideration. Subsequently, he told the petitioner no.1 that (Downloaded on 06/06/2021 at 11:51:47 PM) (7 of 52) [CRLW-1078/2018] he would mainly operate from the Kolkata port and thereby would do all the import from the said port, and the petitioner would be doing only some paper works, including sending of various bills/invoices vide courier to the different destinations as and when told by him. To the utter shock and surprise of the petitioner no.1, the respondent authorities on 16.03.2019 conducted a search operation at his residential premise, however, nothing incriminating was found. Since the petitioner no.1 was also not found present on the spot, summons was handed over to his brother and that no 'panchanama' (search report) was given. The petitioner was required to attend the office of the respondent no.2 at Jaipur on 18.03.2019.

We have heard Mr. Sehban Naqvi for petitioners, Mr. R.D. Rastogi, learned Additional Solicitor General, for the Union of India and Mr. Kinshuk Jain for respondent Customs Department.

Mr. Sehban Naqvi, learned counsel for petitioners, submitted that the petitioners have right to have their advocate(s) with them, at visible, but not audible distance, during their interrogation by the officers of the respondent authorities. The ratio of the judgment of the Supreme Court in Poolpandi & Others Vs. Superintendent Central Excise &Others , AIR 1992 SC 1795, which has been followed by this Court in Bhag Singh and Others Vs. Union of India and Others , MANU/RH/0437/2018 : 2018 (3) RLW 2102, is no longer valid and in any case, the aforesaid judgment is distinguishable. Section 30 of the Advocates Act, 1961, was enforced vide gazette notification of the Government of India (Downloaded on 06/06/2021 at 11:51:47 PM) (8 of 52) [CRLW-1078/2018] dated 09.06.2011, meaning thereby, that after 09.06.2011, it became the fundamental right of an advocate to practice before any court of law or authority having judicial or quasi judicial power as given in the said Section. Reliance is placed on the judgment of Delhi High Court in Oriental Rubber Industries Pvt. Ltd. Vs. Competition Commission of India , (2016) 135 SCL 326 (Delhi), which was upheld by the Division Bench of the Delhi High Court in Competition Commission of India & Others Vs. Oriental Rubber Industries Pvt. Ltd. , 251 (2018) DLT 137. Reliance is placed on the judgment of the Kerala High Court in C.P. Saji Vs. Union of India and Others , 2011 (3) KHC 675 and also on the judgment of the Supreme Court in S. Aeltemesh Rien Vs. Union of India & Others, AIR 1998 SC 1768 , and that of Punjab & Haryana High Court in Smt. Jaswant Kaur and Others Vs. The State of Haryana & Others , AIR 1977 P&H

221. Learned counsel also relied on the judgment of the Supreme Court in Nand Lal & Others Vs. State of Haryana & Others , AIR 1980 SC 2097, whereby the appeal against the judgment of Punjab & Haryana High Court in Smt. Jaswant Kaur , supra, was dismissed.

It is argued that denying the right of presence of advocate before the authority would certainly violate fundamental right given to the petitioners in Section 30 of the Advocates Act, 1961. Reliance is placed on the judgment of the Supreme Court in Rajinder Arora & Others Vs. Union of India and Others , in Writ Petition No.389/2010, and also in Vijay Sajnani Vs. Union of India and Others , (Downloaded on 06/06/2021 at 11:51:47 PM) (9 of 52) [CRLW-1078/2018] MANU/SC/1312/2012. It is argued that while the judgment of the Supreme Court in Poolpandi , supra, has been rendered by a three-Judge-bench in 1992, but the judgment in Vijay Sajnani, supra, was also rendered by a three-Judge-bench in the year 2012 after almost a gap of twenty years. The Madra High Court in State of Tamil Nadu Vs. T.S. Sambandam Mudaliar & Company, MANU/TN/2978/2018 and judgment of the Allahabad High Court in Gopal Krishna Vs. Additional District Judge Kanpur & Others , AIR 1981 Allahabad 300, have also been cited.

Mr. Sehban Naqvi, learned counsel, argued that the Supreme Court in Om Prakash and Others Vs. Union of India and Others , AIR 2012 SC 545, referring to definition of Section 2(1) of the Code of Criminal Procedure, made it clear that that a non-cognizable offence is an offence for which a police officer has no authority to arrest without warrant. The division bench of Punjab & Haryana High Court in Gorav Kathuria Vs. Union of India and Others , 2017 (348) ELT 24 (P&H) has considered the judgment in Om Prakash , supra, and has categorically observed that by application of Section 4(2) of the Cr.P.C. and in view of the aforesaid binding precedents, the words 'police officer' appearing in the Customs Act, 1962 would be read as 'officer authorized under the Customs Act, 1962 '. Thus in a 'cognizable offence' under the Customs Act, 1962 , the Customs Officer would have the power to arrest under Section 104(1) without a warrant. Wherever the provisions of the Customs Act, 1962 , are silent with respect to the applicability of the Cr.P.C ., the provisions of the (Downloaded on 06/06/2021 at 11:51:47 PM) (10 of 52) [CRLW-1078/2018] Cr.P.C . would apply. On the other hand, if the Customs Act, 1962 itself provides for specific provisions, then the Cr.P.C . would not apply. Reliance is placed on the judgment of the High Court of Telangana in P.V. Ramana Reddy & Others Vs. Union of India & Others , Writ Petition No.4764/2019, which was challenged before the Supreme Court by filing Special Leave to Appeal (Crl.) No.4430/2019, but the same was dismissed. It is argued that the judgment in Gorav Kathuria , supra, has been considered by the Supreme Court in Nikesh Tarachand Shah Vs. Union of India & Others , AIR 2017 SC 5500 and it has been held in para 45 of the report that "Be that as it may, we are of the opinion that even though the Punjab High Court judgment appears to be correct, it is unnecessary for us to go into this aspect any further, in view of the fact that we have struck down Section 45 of the 2002 Act as a whole".

Mr. Sehban Naqvi, learned counsel, lastly argued that the respondents be directed not to adopt any coercive method against the petitioners as they are apprehending their arrest in breach of the fundamental rights. Relying on the judgment of the Supreme Court in KM. Hema Mishra Vs. State of U.P. & Others , AIR 2014 SC 1066, learned counsel argued that the Supreme Court in that case held that where provisions of Section 438 Cr.P.C. have been omitted, the aggrieved parties can move under Article 226 of the Constitution of India. The Supreme Court in P.V. Ramana Reddy , supra, has followed the aforesaid judgment in KM. Hema Mishra , supra. Reliance is also placed on the judgment of the Chhattisgarh High Court (Downloaded on 06/06/2021 at 11:51:47 PM) (11 of 52) [CRLW-1078/2018] in R.T. Ramchandran & Others Vs. State of Chhattisgarh & Others , 2019 CRILJ 382.

For contempt petition, it is argued that despite direction of this Court not to take any coercive action against the petitioners, the respondents compelled the petitioners to give their statements under Section 108 of the Customs Act, 1962, which amounted to contempt of this Court.

Per contra, Mr. R.D. Rastogi, learned Additional Solicitor General, appearing for the respondents, submitted that the writ petition filed by the petitioners are not maintainable on merits. Though the petitioners have not specifically challenged the summons issued under Section 108 of the Customs Act, 1962 issued by the DRI officers but they have virtually approached this Court at the stage of only issuance of summons. The DRI officials have only issued summons and recorded the statement of certain persons which clearly shows that the petitioners in the instant cases are not even accused persons till date. This is clear from the language of Section 108 of the Customs Act, 1962, which uses the words 'any person' and does not refer to the term' accused'. Therefore, the writ petitions filed by the petitioners at this stage are premature and not maintainable on merits. Reliance is placed on the judgment of the Supreme Court in Commissioner of Customs Calcutta Vs. M.M. Exports & Another , (2010) 15 SCC 647, wherein it has been held that the High Court should not interfere at the stage when the department has issued the summons. Reliance is also placed on the judgment of the Madras High Court in K.A. Mashoor Vs. Assistant Director , (Downloaded on 06/06/2021 at 11:51:47 PM) (12 of 52) [CRLW-1078/2018] E.D., (2009) SCC OnLine MAD 1839 and in T.T.V. Dinakaran Vs. Enforcement Officer, E.D. , (1995) SCC OnLine MAD 893.

On applicability of provisions of Cr.P.C. to the Customs Act, 1962, learned Additional Solicitor General argued that Section 4(2) clearly states that all offences other than offences committed under the IPC shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Cr.P.C. clearly stipulates that nothing contained in Cr.P.C . shall affect any special or local law or any special form or procedure prescribed by any other law for the time being in force. Customs Act, 1962 being a special Act prevails over the general provisions of the Cr.P.C . The issue of applicability of provisions of the Cr.P.C. to the Customs Act, 1962 has already been dealt with by the Kerala High Court in Kishin S. Loungani Vs. Union of India , (2016) SCC OnLine KER 30732, wherein it has been held that registration of F.I.R. is not necessary before arresting a person under Section 104 of the Customs Act, 1962 and Sections 154-157 and Section 173(2) of the Cr.P.C., do not apply to a case under the Customs Act, 1962 . The decision in Kishin S. Loungani , supra, was challenged before the Supreme Court but operation of the same has not been stayed and the Supreme Court rather directed that the investigation in the said matter must go on. It is submitted that in Gorav Kathuria , supra, relied (Downloaded on 06/06/2021 at 11:51:47 PM) (13 of 52) [CRLW-1078/2018] on by the learned counsel for the petitioners, the Punjab & Haryana High Court has held that subject to the overriding provisions of PML Act and the Rules made thereunder, the provisions of the Cr.P.C . apply to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under PML Act but the judgment passed by the Kerala High Court in Kishin S. Loungani , supra, has considered the view taken by Gorav Kathuria , supra, and held that provisions of the Cr.P.C ., are not applicable to the Customs Act, 1962 .

Learned Additional Solicitor Genera further submitted that the issue as to allow an advocate at a visible but not audible distance and the proceedings to be video-graphed, during recording of statements, has already been dealt with by the Supreme Court in Poolpandi , supra, and by division bench of this Court in Bhag Singh , supra, wherein it has been held that recording of statements of the petitioners under Section 108 of the Customs Act, without the presence of their Advocate, would not violate the fundamental rights of the concerned persons in any manner. Bhag Singh was also operating in the manner similar to the petitioners in the present set of writ petitions and was part of the same racket. The Supreme Court in Vijay Sajnani, supra, relied on by the petitioners, allowed interrogation of the accused persons under Section 108 of the Customs Act, 1962, in the presence of their counsel within visible distance but beyond hearing range but the said judgment did not consider the earlier three- Judge-bench decision of the Supreme Court in Poolpandi, (Downloaded on 06/06/2021 at 11:51:47 PM) (14 of 52) [CRLW-1078/2018] supra. Reliance is also placed on the judgment of the Supreme Court in Union of India Vs. S.K. Kapoor , (2011) 4 SCC 589, wherein it has been held that if a subsequent coordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of the coordinate bench is binding on the subsequent bench of equal strength and it has also held that in case the later decision has not considered the decision of the earlier coordinate bench, the later judgment is per-incuriam. Therefore, the judgment of the Supreme Court in Vijay Sajnani, supra, is per-incuriam since it has not considered the judgment in Poolpandi , supra. The division bench of this Court in Bhag Singh , supra, while considering both the judgments of the Supreme Court in Vijay Sajnani, supra, and Poolpandi , supra, held that in Vijay Sajnani's case earlier judgment in Poolpandi has not been considered. The law is well settled that advocates cannot be allowed at the stage of interrogation by the Customs Officers and if the same is permitted, it would amount to defeating the purpose of interrogation itself. The Supreme Court in Rajinder Arora , supra, the judgment relied by the learned counsel for the petitioners, vide interim order dated 07.12.2010, allowed the presence of an advocate while recording of statements under Section 108 of the Customs Act, 1962, but it is argued by the learned Additional Solicitor General that this was an interim order, which according to settled principles of law has no precedential value. Reliance in this regard is placed on the judgment of the Supreme Court in State of Assam Vs. Barak (Downloaded on 06/06/2021 at 11:51:47 PM) (15 of 52) [CRLW-1078/2018] Upatyaka D.U. Karmchari Shanstha, (2009) 5 SCC 694, wherein it has been clearly held that an interim order, which does not finally and conclusively decide an issue, cannot be treated as a precedent. Thus, both the rulings cited on behalf of the petitioners, are clearly distinguishable and cannot be applied to the facts of the instant cases.

Mr. R.D. Rastogi, learned Additional Solicitor General, argued that this Court vide interim order dated 04.02.2019 directed the respondents not to take any coercive action against the petitioners. Thereafter, the respondents contacted petitioner Mr. Sanwar Lal Sen at his shop running in a kiosk installed at a non-functional Dhaba in his village Ratakot and recorded his statement under Section 108 of the Customs Act, 1962 on 06.02.2019 in his village Ratakot itself. The petitioner in Civil Contempt Petition No.292/2019 has wrongly contended that recording of his statements amounts to 'coercive action' and also contempt of the court order dated 04.02.2019. Reliance in this regard is placed on the judgment of this Court rendered at Principal Seat, Jodhpur, in Punit Vs. State of Rajasthan , (2017) SCC OnLine RAJ 4061, wherein it has been held that the only meaning which can be attributed to the above referred to term is that the person shall not be arrested when such an order is passed by the Court. Hence no contempt of court order dated 04.02.2019 is made out and the respondents cannot even think about flouting the orders of this Court or to defy the majesty of law. It is submitted that the order passed by this Court virtually amounts to grant of anticipatory bail to the petitioner because he cannot be (Downloaded on 06/06/2021 at 11:51:47 PM) (16 of 52) [CRLW-1078/2018] arrested even if something incriminating is found against him during investigation. Reliance is placed on the judgment of the Supreme Court in State of Telangana Vs. Habib Abdulla Jilani , (2017) 2 SCC 779, wherein it has been held that the High Courts must be extremely loath and circumspect while granting a relief in a criminal matter under Article 226 of the Constitution of India and Section 482 of the Cr.P.C., which amounts to grant of anticipatory bail under Section 438 of the Cr.P.C. It is therefore prayed that the order dated 04.02.2019 may be vacated and writ petition be dismissed.

We have given our thoughtful consideration to rival submissions and perused the material on record.

As regards the first prayer of the petitioners seeking a direction to prohibit the respondent DRI officers from arresting the petitioners under Section 104 of the Customs Act, 1962 and requiring them not to summon the petitioners under Section 108 of the Customs Act without following the provisions of Sections 154 to 157 , 167 and 172 of the Cr.P.C., Section 4(2) clearly states that all offences other than offences committed under the IPC shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Cr.P.C. further stipulates that nothing contained in Cr.P.C . shall affect any special or local law or any special form or procedure prescribed by any other law for the time being in force, Customs Act, 1962 being a special Act prevails over the (Downloaded on 06/06/2021 at 11:51:47 PM) (17 of 52) [CRLW-1078/2018] general provisions of the Cr.P.C . The issue of applicability of provisions of the Cr.P.C. to the Customs Act, 1962 has already been dealt with by the Kerala High Court in Kishin S. Loungani Vs. Union of India , (2016) SCC OnLine KER 30732, wherein it has been held that registration of F.I.R. is not necessary before arresting a person under Section 104 of the Customs Act, 1962 and Sections 154-157 and Section 173(2) of the Cr.P.C., do not apply to a case under the Customs Act, 1962 . The decision in Kishin S. Loungani , supra, was challenged before the Supreme Court but operation of the same has not been stayed and the Supreme Court has rather allowed the investigation in the said matter to go on. The judgment of the Punjab & Haryana High Court in Gorav Kathuria , supra, relied on by the learned counsel for the petitioners, arose out of the Prevention of Money Laundering Act . It was held therein that subject to the overriding provisions of PML Act and the Rules made thereunder, the provisions of the Cr.P.C . apply to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under PML Act . The Kerala High Court in Kishin S. Loungani , supra, which case arose out of the Customs Act , has considered the view taken by Gorav Kathuria , supra, but has not concurred therewith. This Court, for the reasons which we shall presently discuss in detail, is inclined to agree with the view taken by the Kerala High Court.

In Gorav Kathuria , supra, an Advocate approached the High Court that he was desirous of instituting a criminal case alleging duty evasion in import of heavy melting scrap (Downloaded on 06/06/2021 at 11:51:47 PM) (18 of 52) [CRLW-1078/2018] classifiable in the Customs Tariff Heading 7204 4900 at ICD Ludhiana and Laundering by the offender of the proceeds of crime so generated. According to him, the imports are being made by mis-declaring the relevant particulars to evade duty and prohibition. According to him, these allegation would constitute offence punishable under Section 132 of the Customs Act, 1962, which is a Scheduled Offence specified in Part B of the Schedule of Prevention of Money-Laundering Act , attracting Section 3 of the PML Act, which would be punishable under Section 4 thereof. In the writ petition, the petitioner challenged the vires of Section 2(y)(ii) of PML Act as amended vide Section 145(ii) of the Finance Act, 2015 enhancing the monetary threshold for the offences specified under Part B of the Schedule from the total value involved in such offences from "Rs. 30 lakhs or more" to "Rs. One crore or more", and secondly the insertion of Section 132 of Customs Act, 1962 in Part-B of the Schedule in PMLA, vide section 151 of the said Finance Act, 2015 . Challenge was mainly founded on the premsie that the two limitations in grant of bail imposed under Section 45(1) of PML Act are applicable in respect of all offence now falling under Part A of the Schedule to PML Act , after the amendment therein in 2013 vide Clause 33 of the PML (Amendment) Bill, 2011, whereby for the then existing Part A, a new Part A was proposed to be substituted, while omitting paragraphs 1 to 25 in the then existing Part B. Consequently, all those offences, which were earlier under these paragraphs 1 to 25 of Part B and all heinous offences which were under the then existing Part A, were proposed to (Downloaded on 06/06/2021 at 11:51:47 PM) (19 of 52) [CRLW-1078/2018] be put together in the new proposed Part A. All the offences under the PML Act were non-bailable. The Punjab and Haryana High Court held that the reference to the offences under Part A of the Schedule in the context of Section 45 (1) is required to be read down to apply only to those scheduled offences, which existed under the Part A of the Schedule prior to the said 2013 amendment in Schedule. It was held that in 2013, Part B of the Schedule was omitted and the Scheduled Offences falling thereunder were incorporated in Part A with the sole object to overcome the monetary threshold limit of Rs. 30 lakhs for invocation of PML Act in respect of the laundering of proceeds of crime involved in those offences. No substantive amendment was proposed with express intention to apply limitations on grant of bail as contained in Section 45(1) in respect of persons accused of such offences which were earlier listed in Part B and therefore, twin limitations in grant of bail contained in Section 45(1) , namely, (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail; are not applicable qua a person accused of such offences which were earlier listed in Part B. It was held that the provisions containing twin limitations in grant of bail under Section 45(1) would override the normal principles governing bail under Sections 438 and 439 qua the persons arrested on accusation of commission of such Scheduled Offences which were earlier (Downloaded on 06/06/2021 at 11:51:47 PM) (20 of 52) [CRLW-1078/2018] listed under Part A of the Schedule. However, only the normal principles governing bail under Section 438 or 439 of the Code would apply in relation to a person arrested under PML Act on accusation of commission of such scheduled offences, which were earlier listed under Part B of the Schedule.

The Punjab and Haryana High Court in Gorav Kathuria , supra, on comparative analysis of the provisions of the Customs Act and the Cr.P.C ., in para 13 of the report held that there was no specific provision which completely overrides the provisions of Sections 200, 156(3) and 155(2) of the Code. However, both the Acts create a bar on taking cognizance vide section 137(1) of the Customs Act, 1962 and second proviso to Section 45(1) of PML Act. The Court in para 14.1, 14.3, 14.12, 14.16 and 14.23 held as under:-

cognizable' would thus be governed only by Sections 104(4) and 104(5) of the said Act. However, in view of Section 4(2) of the Code, this non-obstante clause in Section 104(4) would not come in the way of other procedures prescribed in the Code, if there is no overriding procedure prescribed under the Customs Act, 1962 or Rules made thereunder. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 14.3 Sub-sections (4) and (5) of Section 104 of the Customs Act, 1962 were inserted by substitution (Downloaded on 06/06/2021 at 11:51:47 PM) (21 of 52) [CRLW-1078/2018] vide sections 126 of Act 23 of 2012 for the earlier sub-section (4) with effect from 28.05.2012. The sub-section (4) prior to the substitution stood as under -

Similarly in the case of the Central Excise Act, 1944 in view of Section 9-A, all offences under the said Act were also made non-cognizable. The judgment in the case of Sunil Gupta (supra) was rendered prior to the aforesaid amendments carried out to make two categories of offences, namely 'cognizable' and 'non-cognizable'. The only issue involved therein was whether or not a Central Excise Officer was debarred from arresting a person without a warrant in the non-cognizable offence under Central Excise Act, 1944 .

xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 14.12 We find that in para 128 of the decision in Deepak Mahajan (supra), it has been held that Section 4 is comprehensive and that Section 5 is not in derogation of Section 4(2) and it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2) . The Hon'ble Supreme Court held in Deepak Mahajan (supra) that the provisions of this code would be applicable to the extent in the absence of any contrary provision in the Special Act or any special provision excluding the jurisdiction or applicability of the Code. Therefore, if any special procedure is prescribed under any provision of PMLA or Customs Act, 1962 which is in conflict with the provisions of the Code, such provision of PMLA or Customs Act, 1962 would have overriding effect on the conflicting provision of the Code. If there is no such overriding provision in these special statutes, the provisions contained in the Code would surely apply in view of section 4(2) read with section 5 of the Code.

xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 14.16 By application of Section 4(2) of the Code and in view of the aforesaid binding precedents, the words 'police officer' appearing in these definitions would be read as 'officer authorized under the Customs Act, 1962 '. Thus, in a 'cognizable offence' under Customs Act, 1962 the Customs Officer would (Downloaded on 06/06/2021 at 11:51:47 PM) (22 of 52) [CRLW-1078/2018] have power to arrest under Section 104(1) without a warrant. He would comply with provisions of Sections 154 to 157 by recording the information and sending forthwith a copy of the Report under Section 157 to the jurisdictional Magistrate. But in a 'non-cognizable offence' under the Act, he would have to obtain from jurisdictional Magistrate permission to investigate and a warrant of arrest under Section 104(1) of the Act, as already held by the Hon'ble Supreme Court in Om Parkash (supra). xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 14.23 Therefore, so far as approaching a Magistrate and seeking directions for investigations into any offence under Customs Act, 1962 by any officer authorised under the said Act is concerned, there is no bar and the Magistrate may direct such investigations under Section 155(2) or 156(3) depending upon whether the alleged offence under Customs Act, 1962 in the complaint is 'cognizable' or 'non-cognizable'. However, the Magistrate cannot take cognizance of the offence unless the conditions specified in the overriding provisions of Section 137(1) or 137(2) are satisfied. Once such directions are issued by the Court, the officer authorised under the said act will follow the procedure specified under the Customs Act, 1962 , Rules made thereunder and all those provisions of the Code for which there is no inconsistent provision in the Act."

The question before the Kerala High Court in Kishin S. Loungani , supra, was whether in view of Section 4(2) of the Cr.P.C., the provisions of Sections 154 to 157 and 173(2) of the Code of Criminal Procedure would apply in respect of the proceedings under the Customs Act , and whether in respect of offences under Sections 133 to 135 of the Customs Act registration of F.I.R. is compulsory before the person concerned is arrested and produced before the Magistrate. On interpretation of Section 104 of the Customs Act, the Kerala High Court in para 14, 15 and 16 of the report held as under:-

as a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173. Section 173(2) of the Code of Criminal Procedure provides that as soon as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating the details mentioned in the said sub-section. "Police Station" is defined under Section 2(s) as any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf. Section 2(o) of the Code of Criminal Procedure defines "officer in charge of a police station". A Customs Officer does not come either under Section 2(s) or under Section 2(o) . The expressions "officer in charge of a police station", "on a police report" and "prescribed by the State Government" occurring in the Cr.P.C . give a clear indication that in respect of a proceeding under the Customs Act , Section 173(2) of the Code of Criminal Procedure does not apply. Sub-section (5) (b) of Section 173 of the Cr.P.C. also does not apply to a customs case since taking of such a statement is not contemplated under the Customs Act . While defining the "officer in charge of police station" in Section 2(o) of Cr.P.C., the power of the State Government in certain contingencies is contemplated. There is no such power for the State Government to issue such directions in a customs case.

15. The learned senior counsel appearing for the (Downloaded on 06/06/2021 at 11:51:47 PM) (24 of 52) [CRLW-1078/2018] petitioner heavily relies on Section 4(2) of Cr.P.C. which provides that all offences (other than offences under the Indian Penal Code ) under any law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The learned Additional Solicitor General submitted that under the Scheme of Section 104 of the Customs Act, a Customs Officer is invested with certain powers which a police officer has under the Code of Criminal Procedure and nothing more. In respect of Section 104(3) of the Customs Act, the provisions of the Code of Criminal Procedure are made applicable only for the purpose of releasing a person on bail or otherwise. For contravention of a provision under the Customs Act , a person can be arrested immediately. It is not necessary to register a FIR. If such an interpretation is made, it is submitted that it would defeat the very purpose of the Customs Act . It is also submitted that the arrest is for an immediate purpose to bring the person to book and to facilitate the inquiry as contemplated under the Customs Act . It is submitted that the mention of the application of Cr.P.C . in Section 104(3) would have the meaning of exclusion of the Cr.P.C . in respect of other matters in connection with the arrest of the person concerned. Section 104(1) and (2) would ensure procedural safeguards. It is submitted that Ext. P2 arrest memo and Ext. P3 occurrence report would satisfy the procedural safeguards of sub-sections (1) and (2) of Section 104 of the Customs Act. At the present stage of the case, no further information is required by the person who is arrested. It is submitted that the occurrence report produced before the learned Magistrate while producing the accused, by itself is a substitute for a FIR. It is also submitted that the protection guaranteed under Section 22 of the Constitution of India is adequately taken care of in the Customs Act itself. It is pointed out that there is no case for the petitioner that the constitutional safeguards under Article 22(1) and 22(2) of the Constitution of India have been transgressed.

16. Section 151 of the Customs Act provides that the officers mentioned therein are empowered and required to assist the officers of customs in the execution of the Customs Act . The category of officers include officers of police under clause (c) of Section 151 . The expression "in the execution of this Act" occurring in Section 151 of the Customs Act means on execution by the Customs Officers the officers of police are "empowered and required" (Downloaded on 06/06/2021 at 11:51:47 PM)

(25 of 52) [CRLW-1078/2018] under Section 151 of the Customs Act to assist the officers of Customs. 'Empowered' means the police officers need not search for any power to do so under the Code of Criminal Procedure . The expression "are hereby required" means that the police officers are duty bound to assist the officers of Customs in the execution of the Customs Act . It is not possible to equate the officers of Customs with police officers. There is clear demarcation of powers of officers of customs and officers of police under the Customs Act ."

The Kerala High Court on the basis of above analysis held that as per Section 154 of the Cr.P.C., every information relating to the commission of a cognizable offence, if given to an officer in charge of a police station, shall be reduced to writing and shall be entered in a book to be kept by such officer in such form as the State Government may prescribe. On the other hand, Sections 104 , 105 and 106 of the Customs Act use the expression "has reason to believe" in the matter of arrest, search of premises and search of conveyances. "The reason to believe" is with respect to commission of an offence under the Customs Act ; or reason to believe that the goods are liable for confiscation; or has reason to believe that any aircraft, vehicle or animal or vessel is being or is about to be used in the smuggling of any goods or in the carriage of any goods which have been smuggled, as the case may be. Going by the Scheme of the Customs Act, a search or seizure or arrest of a person need not necessarily lead to the prosecution of the person concerned. It may end in confiscation of the goods, imposing a penalty in adjudication proceedings or it may end up in compounding of the offence. Only in a very few (Downloaded on 06/06/2021 at 11:51:47 PM) (26 of 52) [CRLW-1078/2018] cases detected, it may end in prosecution of the offender. Having held so, the Kerala High Court concluded thus:-

The Kerala High Court in taking the aforesaid view has relied on the judgments of the Supreme Court in Illias v. The Collector of Customs, Madras, AIR 1970 SC 1065, Badaku Joti Savant Vs. State of Mysore, AIR 1966 SC 1746, Percy Rustomji Basta Vs. The State of Maharashtra, AIR 1971 SC 1087, Veera Ibrahim Vs. The State of Maharashtra, (1976) 2 SCC 302, Directorate of Enforcement Vs. Deepak Mahajan, (1994) 3 SCC 440, Union of India Vs. Padam Narain Aggarwal, AIR 2009 SC

254. The Kerala High Court agreed with the view taken by the Gujarat High Court in Bhavin Impex Pvt. Ltd. Vs. State of Gujarat , 2010 (260) E.L.T. 526 (Guj.) and also the view taken by the Punjab & Haryana High Court in Sunil Gupta Vs. Union of India , 2000 (118) E.L.T. 8 (P&H), in holding that mere conferment of powers of investigation in criminal offences in the Central Excise Act and the Customs Act does not make the Central Excise Officer/Custom Officer a police officer, when he arrests a person or informs that person of ground of his arrest for the purpose of holding enquiry into the infringement of the provisions of the Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence; arrest and detention are only for the purpose of holding effectively an inquiry under Sections 107 and 108 of the Customs Act with a view to adjudging confiscation of dutiable or prohibited goods and imposing (Downloaded on 06/06/2021 at 11:51:47 PM) (28 of 52) [CRLW-1078/2018] penalty. Therefore, at that stage, there is no question of the offender against the Customs Act being charged before a Magistrate. After adjudging penalty and confiscation of goods or without doing so, if the Customs Officer forms an opinion that the offender should be prosecuted, he may at that stage prefer a complaint in the manner provided under Section 137 with the sanction of the Collector of Customs. Until a complaint is so filed, the person against whom an inquiry is commenced under the Customs Act and who is sought to be questioned under Section 108 of the Customs Act, does not stand in the character of a person accused of an offence under Section 135 .

The Constitution Bench of the Supreme Court in Romesh Chandra Mehta Vs. State of West Bengal , supra, held that Section 135 of the Customs Act, 1962 does not amount to formal accusation of an offence. Arrest and detention are only for the purpose of holding effective enquiry under Sections 107 and 108 of the Customs Act, 1962 with a view to adjudging confiscation of dutiable or prohibited goods and imposing penalties. At that stage, there is no question of the offender against the Customs Act, 1962 , being charged before a Magistrate. By informing such person of the grounds of his arrest, the Customs Officer does not formally accuse him with the commission of an offence.

Basically the Custom Officer is a revenue officer primarily concerned with the detection of smuggling and enforcement and levy of proper duties and prevention of entry into India of dutiable goods without payment of duty and onwards the entry (Downloaded on 06/06/2021 at 11:51:47 PM) (29 of 52) [CRLW-1078/2018] of which is prohibited. The power of the Central Excise Officer or the Custom Officer, to arrest a person whom he has reason to believe, is liable to be punished under the concerned enactments without issuance of warrants and without registration of first information report or complaint before the Magistrate are incidental thereto. Owing to all these reasons the proceedings conducted by an officer under the Central Excise Act or the Customs Act are vitally different for investigation by the police officer.

In fact, the view taken by the Punjab and Haryana High Court in Gorav Kathuria , supra, is contrary to earlier view taken in Sunil Gupta , supra, by a bench of Judges of co-equal strength of the same High Court. We are therefore inclined to agree with the earlier view of the Punjab and Haryana High Court in Sunil Gupta , supra, which in the ordinary course, if was required to be dissented from, ought to have been referred to, as per the settled principles on law of precedents, to a Larger Bench. Moreover, independent of that also, we are inclined to agree with the view taken by the Kerala High Court in Kishin S. Loungani , supra, and would to follow the ratio of the judgment of the Punjab and Haryana High Court in Sunil Gupta , supra, and that of Gujarat High Court in Bhavin Impex Pvt. Ltd. , supra.

As regards the second prayer permitting the petitioner to have an advocate at visible distance during their interrogation by the officers of the DRI and to have the interrogation recorded by the video-graphy, we may refer to judgment of the Supreme Court in Poolpandi , supra, wherein it was held (Downloaded on 06/06/2021 at 11:51:47 PM) (30 of 52) [CRLW-1078/2018] that recording of statements of the petitioners under Section 108 of the Customs Act, without the presence of their Advocate, would not violate the fundamental rights of the concerned persons in any manner. The Supreme Court in Vijay Sajnani, supra, relied on by the petitioners, allowed interrogation of the accused persons under Section 108 of the Customs Act, 1962, in the presence of their counsel within visible distance but beyond hearing range. The division bench of this Court in Bhag Singh , supra, while considering both the judgments of the Supreme Court in Vijay Sajnani, supra, and Poolpandi , supra, held that in Vijay Sajnani's case earlier judgment in Poolpandi has not been considered, wherein the law was settled that advocates cannot be allowed at the stage of interrogation by the Customs Officers and if the same is permitted, it would amount to defeating the purpose of interrogation itself.

The learned counsel for the petitioners has argued that the judgment of this Court in Bhag Singh , supra, is distinguishable because it is based on the judgment of the Supreme Court in Poolpandi , supra, which was rendered at a time when Section 30 of the Advocates Act, 1961 was not in force and now when Section 30 has been enforced and made effective vide gazette notification of the Government of India dated 09.06.2011, it becomes a fundamental right of an Advocate to practice before any Court of law or authority having judicial and quasi-judicial power. Cited single bench judgment of the Delhi High Court in Oriental Rubber Industries Pvt. Ltd. Vs. Competition Commission of (Downloaded on 06/06/2021 at 11:51:47 PM) (31 of 52) [CRLW-1078/2018] India, arose out of a writ petition filed by the petitioner, a manufacturer of several rubber products, assailing the notice by the Director General, Competition Commission of India, under Section 26(1) of the Competition Act, 2002, issued in pursuance of the order of the Competition Commission of India under Section 26(1) of the Competition Act, 2002. The learned Single Judge relied on the Division Bench judgment of the Delhi High Court in Punjab National Bank and Others Vs. Kingfisher Airlines Limited and Others , LPA 589/2014, dated 17.12.2015, wherein the question for adjudication before the Court was whether a person, who is proposed to be classified as a willful defaulter by a Bank/Financial Institution and who has been conferred with an opportunity of being heard pursuant to the Circular of the Reserve Bank of India by the Grievance Redressal Committee of the Bank/Financial Institution, has a right to be represented by an Advocate in the said hearing. It was in this context that Section 30 of the Advocates Act was noticed, which was notified on 19.06.2011. The Division Bench relied on many previous decisions of the Supreme Court and other High Courts and held that Section 30 of the Advocates Act confers on an Advocate a right to practice before any person legally authorised to take evidence in the light of the dicta of the aforesaid judgment of the Division Bench in Punjab National Bank and Others Vs. Kingfisher Airlines Limited and Others , supra, which right to practice would include a Company/Person, which has been summoned before the Director General for investigation. The Delhi High Court held that Poolpandi , supra, was a case of an era before (Downloaded on 06/06/2021 at 11:51:47 PM) (32 of 52) [CRLW-1078/2018] Section 30 of the Advocates Act had come into force and hence would not be applicable hereto. The aforesaid judgment of the Supreme Court was challenged before Division Bench of the Delhi High Court by the Competition Commission of India. The Division Bench of the Delhi High Court in Competition Commission of India & Others Vs. Oriental Rubber Industries Pvt. Ltd. , supra, also relied on judgment of the Supreme Court in N.K. Bajpai Vs. Union of India , AIR 2012 SC 1310, wherein it was held that where the advocate has a right to appear before an authority or a person, that right can be denied by a law that may be framed by the competent Legislature. Thus, the right to practise is not an absolute right which is free of restriction and is without any limitation. Undoubtedly, however, the Delhi High Court observed, as the Supreme Court has held in Poolpandi , supra, and Senior Intelligence Officer Vs. Jugal Kishore Samra , (2011) 12 SCC 362, this right is not absolute and a legislation that takes away this right or restrict that for limited purposes would not be invalid or unconstitutional for this reason. It further held that under the regime of the Competition Act , there can be no doubt that the DG is authorised to record evidence. Section 36(2) of the Act provides to the DG powers similar to that of a Civil Court and allows him to take evidence. Section 36 is given further content through Regulation 41 and 43 of the CCI Regulations, which also clarifies that the DG is authorised under the Competition Act to take evidence. That being the case, the DG would fall under Section 30(ii) of the Advocates Act, as being a person "legally authorised to take evidence". (Downloaded on 06/06/2021 at 11:51:47 PM)

(33 of 52) [CRLW-1078/2018] We deem it appropriate to reproduce Section 30 of the Advocates Act, 1961, at this stage, which reads as follows:

It may be noted that the Advocates Act, 1961 received the assent of the President of India on 19.05.1961. Section 1(3) of the Act provides that, it shall, in relation to the territories other than those referred to in sub-section (4) come into force from such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of the Act. Chapters I, II and VII of the Act were brought into force on 16.08.1961, Chapter II and Section 50(2) on 01.12.1961, Section 50(1) on 15.12.1961, Sections 51 and 52 on 24.01.1962, Section 46 on 29.03.1962, Section 32 and Chapter VI (except Sections 46 , 50 (1) and (2), 51 and 52 which had already come into force) on 04.01.1963, Chapter V came into force on 01.09.1963 and Sections 29, 31, 33 and 34 of Chapter IV of the Act came into force on 01.06.1969. Section 30 was not notified for over five decades. This was a matter of debate for several years. No notification was issued in respect of Section 30 conferring the right to practise on every advocate before any Court/Tribunal or such other authorities as specified therein. This issue was agitated before the Supreme Court in Aeltemesh Rein Vs. (Downloaded on 06/06/2021 at 11:51:47 PM) (34 of 52) [CRLW-1078/2018] Union of Inidan, AIR 1988 SC 1768. The question before the Supreme Court was whether it can issue a writ of mandamus to the Central Government to make Section 30 of the Act into force. The Supreme Court relied on its Constitution Bench judgment in A.K Roy Vs. Union of India , AIR 1982 SC 710, wherein it was held that writ of mandamus directing the Central Government to bring a statute or a provision in a statute into force in exercise of the powers conferred by the Parliament in that statute, cannot be issued. The Court therefore held that majority view expressed in the aforesaid Constitution Bench judgment that the Court could not issue a writ in the nature of mandamus directing the Central Government to bring Section 30 of the Advocates Act, 1961, into force. But this decision does not come in the way of the Court issuing the mandamus to consider whether the time for bringing Section 30 of the Advocates Act, 1961 into force had arrived or not. Every discretionary power vested in the executive should be exercised in just, fair and reasonable way, is the essence of the rule of law. The Advocates Act was passed way back in 1961 and a long time has elapsed from receiving the assent of the President of India, it is not clear whether the Central Government had applied its mind at all whether Section 30 of the Advocates Act, 1961 should be brought into force. The Supreme Court therefore accordingly directed the Central Government and thereafter the Central Government, by notification dated 19.06.2011, enforced Section 30 of the Amendment Act.

(Downloaded on 06/06/2021 at 11:51:47 PM)

(35 of 52) [CRLW-1078/2018] The Supreme Court in Senior Intelligence Officer Vs. Jugal Kishore Samra , supra, while dealing with the question whether the respondent should be interrogated only in presence of his Advocate, held that the respondent was not entitled to as of right to presence of his Advocate at the time of interrogation. The Supreme Court held that in view of clear and direct decision rendered earlier in Poolpandi , supra, the order of the High Court affirming the direction given by the Sessions Judge, is unsustainable. However, the Supreme Court, having regard to the special facts and circumstances of the case, directed that the interrogation of the respondent may be held within the sight of his advocate or any other person duly authorised by him, and such advocate/person may watch the proceedings from a distance or from beyond a glass partition but he will not be within the hearing distance. At the same time, it was held that during interrogation of a witness by the police under Sections 161 and 162 of the Cr.P.C., right to insist on the presence of an advocate is not permissible, the witness not being an accused. It shall not be open to the respondent to have consultation with such person in the course of interrogation by the Officers of the Directorate of Revenue Intelligence, Hyderabad.

MANU/TN/1069/1998 : 1999 (113) ELT 804 (Mad.) and in para 12 of the report held as under:

(Downloaded on 06/06/2021 at 11:51:47 PM)

(36 of 52) [CRLW-1078/2018]

12. With regard to the observation of the Lower Appellate Court for the handicap faced by the accused in the absence of an Advocate, the Supreme Court in Poolpandi v. Superintendent, Central Excise (1992 (60) ELT 24 (SC) : AIR 1992 S.C. 1795) has considered that when a person was summoned to appear before the officers under FERA, he cannot be treated as an accused and under such circumstances, he is not entitled to the presence of his lawyer when he was examined by the officers. Therefore, refusal to allow the presence of lawyer in such cases, would not be violative of protection under Article 20(3) of the Constitution. When the Apex Court itself has held so clearly that a person, who was summoned to appear before the Enforcement Directorate for interrogation, is not entitled to seek the presence of the Advocate, the Lower Appellate Court cannot make use of this as a circumstances in favour of the accused to arrive at the conclusion that his statement could not be voluntary."

The Madras High Court in P. Giribabu Vs. The Deputy Director of Enforcement, Directorate of Enforcement, Chennai, Writ Petition No.23110 & 23558 of 2009 decided vide judgment dated 26.03.2010, MANU/TN/0458/2010, was dealing with a petition under Article 226 of the Constitution of India, wherein prayer was made for issuance of a writ of mandamus directing the respondent to permit the petitioner to be accompanied by an advocate of his choice when he appears before the respondent in pursuant of the summons issued under Section 37 of the Foreign Exchange Management Act, 1999 (FEMA) and recording of statement, though the advocate will be present beyond the hearing distance, if need be. It was argued on behalf of the petitioner that this right flows from the Advocates Act, 1961 and that Section 30 of the Advocates Act, 1961 contemplates the right of advocates to practice. Denying permission to the petitioners to have an advocate of (Downloaded on 06/06/2021 at 11:51:47 PM) (37 of 52) [CRLW-1078/2018] their choice at the time of taking statement from the petitioner is untenable. The Madras High Court therein also relied on the judgment of the Supreme Court in Poolpandi , supra, and in para 9.2 of the report held as under:-

The Madras High Court in Controller of Patents, Intellectual Property of Rights Building, Chennai Vs. S.P. Chockalingam, (2019) 2 LW 289, considered the challenge to the validity of amendment brought to Section 126 of the Patent Act, 1970 by Section 53 of the Patents (Amendment) Act, 2002. Therein, reliance was placed on the judgment of the Supreme Court in Paradip Port Trust Vs. Their Workmen , (1977) 2 SCC 339, in which the question that arose for consideration was whether an Advocate was entitled to appear before the Central Industrial Tribunal in a dispute raised by the Workers Union. The Tribunal held that the relationship between the employer and the Advocate is clearly that of a client and his lawyer and not that of an employer and employee and hence, he cannot be stated to be the officer of the employer and cannot be permitted to represent the employer. The correctness of the said order was challenged and the matter ultimately reached the Supreme Court, which answered the said question on the following terms:-

(Downloaded on 06/06/2021 at 11:51:47 PM)

(39 of 52) [CRLW-1078/2018] "23. Besides, it is also urged by the appellant that under section 30 of the Advocates Act, 1961, every advocate shall be entitled "as of right" to practise in all courts, and before only tribunal section 30(i) and (ii). This right conferred upon the advocates by a later law will be properly safeguarded by reading the word "and" as "or" in section 36(4) , says counsel. We do not fail to see some difference in language in section 30(ii) from the provision in section 14(1)(b) of the Indian Bar Councils Act, 1926, relating to the right of advocates to appear before courts and tribunals. For example, under section 14(1)(b) of the Bar Councils Act, an advocate shall be entitled as of right to practise save as otherwise provided by or under any other law in any courts (other than High Court) and tribunal. There is, however, no reference to "any other law" in section 30(ii) of the Advocates Act. This need not detain us. We are informed that section 30 has not yet come into force. Even otherwise, we are not to be trammelled by section 30 of the Advocates Act for more than one reason. First, the Industrial Disputes Act is a special piece of legislation with the avowed aim of labour welfare and representation before adjudicatory authorities therein has been specifically provided for with a clear object in view. This special Act will prevail over the Advocates Act which is a general piece of legislation with regard to the subject matter of appearance of lawyers before all courts, tribunals and other authorities. The Industrial Disputes Act is concerned with representation by legal practitioners under certain conditions only before the authorities mentioned under the Act. Generalia Specialibus Non Derogant. As Maxwell puts it:

24. Second, the matter is not to be viewed from the point of view of legal practitioner but from that of the employer and workmen who are the principal contestants in an industrial dispute. It is only when a party engages a legal practitioner as such that the latter is enabled to enter appearance before (Downloaded on 06/06/2021 at 11:51:47 PM) (40 of 52) [CRLW-1078/2018] courts or tribunals. Here, under the Act, the restriction is upon a party as such and the occasion to consider the right of the legal practitioner may not arise ." (emphasis supplied) According to ratio of the above referred to judgments, the matter is required to be viewed from the point of view of the petitioners before the Court. This Court in the present set of the cases is primarily concerned with the right of the petitioners and not that of any legal practitioner, to practice before the Supreme Court or any other Court or Forum. In any case, the judgment of the Delhi High Court in Oriental Rubber Industries Private Limited Vs. Competition Commission of India , supra, which was upheld by the Division Bench of Delhi High Court in intra court appeal, which is being heavily relied on behalf of the petitioners, was based on earlier Division Bench judgment of Delhi High Court in Punjab National Bank and Others Vs. Kingfisher Airlines Limited and Others , LPA 589/2014. This judgment has since been reversed and the view taken therein has been recently overruled by the Supreme Court in State Bank of India Vs. Jah Developers Pvt. Ltd. , (2019) 6 SCC 787. The Supreme Court in that case was considering the question whether a person, who is declared to be a willful defaulter under the Circulars of the Reserve Bank of India, is entitled to be represented by a lawyer of his choice before the in-house committees/grievance redressal committees. Reference therein was made to the judgment of the Bombay High Court in Kingfisher Airlines Ltd. v. Union of India and Ors., WP (L) No. 1684 of 2015, and that of the Calcutta High Court in (Downloaded on 06/06/2021 at 11:51:47 PM) ( 41 of 52) [CRLW-1078/2018] Kingfisher Airlines Ltd. Vs. Union of India and Others , AST No.320 of 2014, stating that the said High Courts have taken a view that such person does not have any right to be represented by a lawyer, however, the Delhi High Court in the judgment impugned before the Supreme Court, took a contrary view holding that in view of Section 30 of the Advocates Act, 1961, two in-house committees can be considered to be Tribunals and therefore a lawyer has a right to represent his client in such in-house committees. The Delhi High Court held that the expression "legally authorised to take evidence" goes with the word "person" and not with the word "tribunal", but at the same time, it also held that the Grievance Redressal Committee satisfies the test prescribed to qualify as a Tribunal. Reversing the judgment of the Delhi High Court, the Supreme Court in para 11, 12, 15, 16, 17, 18 and 19 of the report held as under:-

goes with the word "person" and not with the word "tribunal". While this may be correct, it is clear that before a body can be said to be a "tribunal", it must be invested with the judicial power of the State to decide a lis which arises before it. This would necessarily mean that all "tribunals" must be legally authorised to take evidence by statute or subordinate legislation or otherwise, the judicial power of the State vesting in such tribunal. This Court, in Jaswant Sugar Mills Ltd., Meerut v. Lakshmi Chand and Ors. , [1963] Supp (1) SCR 242, held that a Conciliation Officer under clause 29 of an Order promulgated under the U.P. Industrial Disputes Act, 1947 , has to act judicially. However, he cannot be regarded as a "tribunal" within the meaning of Article 136 of the Constitution of India as such tribunal must be a body invested with the judicial power of the State, which a Conciliation Officer was not so invested with. Similarly, in Engineering Mazdoor Sabha and Anr. v. Hind Cycles Ltd. , [1963] Supp (1) SCR 625, this Court held that (Downloaded on 06/06/2021 at 11:51:47 PM) (42 of 52) [CRLW-1078/2018] an arbitrator appointed under Section 10-A of the Industrial Disputes Act, 1947 could not be said to be a tribunal because the State has not invested him with judicial power. His position may be stated to be higher than that of a private arbitrator, but lower than that of a tribunal.

12. Similarly, in Associated Cement Companies Ltd. v. P.N. Sharma and Anr. , [1965] 2 SCR 366, this Court held that the State of Punjab is a tribunal when it exercises its authority under Rule 6(6) of the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952. Hence, an order passed by the State of Punjab would be appealable, as the State of Punjab is a "tribunal" within the meaning of Article 136(1) of the Constitution of India. The majority judgment, through Gajendragadkar, C.J., held that the basic test is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State's inherent power exercised in discharging its judicial function, can be said to be satisfied on the facts of the case. In a separate concurring judgment, Bachawat, J., held:

Applying the aforesaid tests to the facts of the present case, it cannot be possibly said that either in-house committee appointed under the Revised Circular dated 01.07.2015 is vested with the judicial power of the State. The impugned judgment's conclusion that such Circulars have statutory force, as a result of which the State's judicial power has been vested in the two committees, is wholly incorrect. First and foremost, the State's judicial power, as understood by several judgments of this Court, is the power to decide a lis between the parties after gathering evidence and applying the law, as a result of which, a binding decision is then reached. This is far from the present case as the in- house committees are not vested with any judicial power at all, their powers being administrative powers given to in-house committees to gather facts and then arrive at a result. Secondly, it cannot be said that the Circulars in any manner vests the State's judicial power in such in-house committees. On this ground, therefore, the view of Delhi High Court is not correct, and no lawyer has any right under Section 30 of the Advocates Act to appear before the in-house committees so mentioned. Further, the said committees are also not persons legally authorised to take evidence by statute or subordinate legislation, and on this score also, no lawyer would have any right under Section 30 of the Advocates Act to appear before the same.

xxx xxxx xxxx xxxx xxxx xxx xxxx xxxx xxxx xxxx

15. In Kavita v. State of Maharashtra and Ors. (I ), (1981) 3 SCC 558 ["Kavita"], this Court held, in the context of preventive detention, that even when a detenu makes a request for legal assistance before the Advisory Board, the Advisory Board is vested with a discretion whether to allow or disallow such legal assistance. This was despite the fact that adequate legal assistance may be essential for the protection of the fundamental right to life and personal liberty guaranteed by Article 21 of the Constitution. On facts, it was held that since the detenu had not made any request to the Advisory (Downloaded on 06/06/2021 at 11:51:47 PM) (44 of 52) [CRLW-1078/2018] Board for any such permission, the Court was not prepared to hold that the detenu was denied the assistance of counsel so as to lead to the conclusion that procedural fairness under Article 21 of the Constitution was denied to him. Likewise, in Nand Lal Bajaj v. State of Punjab and Anr. , (1981) 4 SCC 327, this Court referred to Article 22(3)(b) of the Constitution of India which states that the right to consult and be defended by a legal practitioner of his choice is denied to a person who is arrested or detained under any law providing for preventive detention. This Court then went on to hold that normally, lawyers have no place in proceedings before the Advisory Board, and then went on to refer to Kavita (supra). It was finally held that since the detaining authority was allowed to be represented by counsel before the Advisory Board, whereas the detenu was not, the order of detention would be quashed as this would be discriminatory.

16. In J.K. Aggarwal v. Haryana Seeds Development Corporation Ltd. and Ors. , (1991) 2 SCC 283, this Court, after discussing the case law, held in paragraph 4, that the right of representation by a lawyer cannot be held to be a part of natural justice. No general principle valid in all cases can be enunciated. In the last analysis, a decision has to be reached on a case to case basis on situational particularities and the special requirements of justice of the case [see paragraph 8].

17. In Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi , (1993) 2 SCC 115, this Court held that a workman under the Industrial Disputes Act, 1947 has no right, under principles of natural justice, that he must be represented by counsel. After discussing several judgments, this Court concluded:

xxx xxx xxx "17. It is, therefore, clear from the above case-law that the right to be represented through counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquent's right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent. In the instant case the delinquent's right of representation was regulated by the Standing Orders which permitted a clerk or a workman working with him in the same department to represent him and this right stood expanded on Sections 21 and 22(ii) permitting representation through an officer, staff-member or a member of the union, albeit on being authorised by the State Government. The object and purpose of such provisions is to ensure that the domestic enquiry is completed with despatch and is not prolonged endlessly. Secondly, when the person defending the delinquent is from the department or establishment in which the delinquent is working he would be well conversant with the working of that department and the relevant rules and would, therefore, be able to render satisfactory service to the delinquent. Thirdly, not only would the entire proceedings be completed quickly but also inexpensively. It is, therefore, not correct to contend that the Standing Order or Section 22(ii) of the Act conflicts with the principles of natural justice."

18. In D.G., Railway Protection Force and Ors. v. K. Raghuram Babu , (2008) 4 SCC 406, this Court, in the context of a domestic/departmental enquiry held:

19. It has also been argued before us that the present case, being a case where "wilful default"

In view of the afore-discussed law, the ratio of the judgment of the Supreme Court Poolpandi , supra, cannot be taken to have been diluted by mere enforcement of Section 30 of the Advocates Act. The Custom Officer, who has summoned the petitioners to appear before him for recording their statements under Section 108 of the Customs Act, does not qualify the test of a "tribunal or person legally authorised to take evidence". But here, the word 'or' in section 30(ii) has not been used as disjunctive. It rather has to be read as "and" because "tribunal" and "person" both qualify the requirement of having power to record evidence. No doubt, the word "or" is normally treated as disjunctive and "and" is normally conjunctive but at times they are read vice versa to give manifest intention of the legislature as disclosed from the context. (Refer to Principals of Statutory Interpretation by Justice G.P. Singh 14th Edition 2016 Page 530). If the word "or" in Section 30(ii) of the said Act is interpreted to mean disjunctive, it would mean that though the "person" would be taken as legally authorised to take evidence but the "tribunal" referred to in that very provision would not be taken so authorised to take evidence. This would lead to absurd consequences.

(Downloaded on 06/06/2021 at 11:51:47 PM)

(48 of 52) [CRLW-1078/2018] The Supreme Court in Spentex Industries Ltd. Vs. CCE , (2016) 1 SCC 780, considered Rule 18 of the Central Excise Rules, 2002, which reads thus:-

While interpreting afore-quoted Rule, more particularly word "or" therein, the Supreme Court held as under:-

The Supreme Court in Ahmedabad Pvt. Primary Teachers Association v. Administrative Officer and Ors. , (2004) 1 SCC 755, held that in a situation like this, the rule of construction noscitur a sociis may be applied. While interpreting Section 2(e) of the Payment of Gratuity Act, 1972, wherein 'skilled', 'semi-skilled' were disjoined by 'unskilled' by use of the word "or" and the argument was that they do not qualify the words 'manual', 'supervisory', 'technical' (Downloaded on 06/06/2021 at 11:51:47 PM) (49 of 52) [CRLW-1078/2018] or 'clerical work' following immediately thereafter. It was on that basis contended before the Supreme Court that teachers do not answer description of employees who are 'skilled', 'semi-skilled' or 'unskilled'. The Supreme Court in para 22 of the report, while applying the rule of construction noscitur a sociis held as under:-

[See Principles of Statutory Interpretation by Justice G.P. Singh, 8th Edn. Syn. 8 at p.379."

We may in this connection refer to 185 th Report on " Review of the Indian Evidence Act, 1872 " submitted in March, 2003 by the Law Commission of India, presided by Hon'ble Mr. Justice M. Jagannadha Rao, in which the 69 th Report of the Fifth Law Commission of India headed by Hon'ble Mr. Justice P.B. Gajendragadkar (former Chief Justice of India) was extensively referred and relied. In Chapter II of that Report, the Law Commission reviewed the provisions of the Indian Evidence Act, 1872 . It also reviewed Section 3 "interpretation clause" of the Evidence Act and various words defined therein. We would like to refer that part of the report where the word 'Court' was discussed, which reads thus:-

The word "person" here has to be therefore read in the context of immediate preceding word "tribunal" mentioned in Section 30(ii) of the Act of 1961 and is followed by the phraseology "or person legally authorised to take evidence", the word "person" has to take its colour from the word "tribunal". Both "tribunal" and "person" in the language of Section 30(ii) of the Act of 1961 shall qualify as "legally authorised to take evidence". Such "person" has to necessarily have either the trappings of the court or if not judicial, he should at least, have quasi judicial power having adjudicatory authority to determine rights of contesting parties before it, by taking into consideration the evidence it has been authorised to record. It is in this context that section 30(ii) has conferred right on the Advocates to appear and plead before such fora. But the Custom Officer, while recording statement u/s 108, is certainly not covered by Section 30 (ii) of the Advocates Act as "person legally authorised to take evidence", in that sense, even if the evidentiary value of the statement recorded by him is placed (Downloaded on 06/06/2021 at 11:51:47 PM) (51 of 52) [CRLW-1078/2018] at a somewhat higher pedestal than the one recorded by the Investigation Officer under Section 161 of the Cr.P.C. The petitioners in this set of writ petitions cannot as a matter of right claim to carry their advocates along-with them when they appear before the Custom Officer for their statements under Section 108 of the Customs Act.

Regarding the third prayer that the Officers of the DRI may be asked not to take any coercive action against the petitioners, it may be noted that this Court by order dated 04.02.2019 directed the respondents not to take any coercive action against the petitioners. Thereafter the respondents contacted petitioner Sanwar Lal Sen at his shop running in a kiosk installed at a non-functional Dhaba in his village Ratakot and recorded his statement under Section 108 of the Customs Act, 1962 on 06.02.2019 in his village Ratakot itself. The petitioner in Civil Contempt Petition No.292/2019 has alleged that recording of his statements amounts to 'coercive action' and also contempt of the court order dated 04.02.2019. This Court in Punit Vs. State of Rajasthan , (2017) SCC OnLine RAJ 4061, a judgment delivered at Principal Seat, Jodhpur has held that the only meaning which can be attributed to the term 'coercive action' is that the person shall not be arrested when such an order is passed by the Court. Merely because the petitioner was approached for recording his statement under Section 108 of the Customs Act and his statement was recorded, does not tantamount to contempt of the order of this Court dated 04.02.2019.

(Downloaded on 06/06/2021 at 11:51:47 PM)

(52 of 52) [CRLW-1078/2018] In view of the above discussions, the writ petitions as also the contempt petition are dismissed. This also disposes of pending applications, if any.

Registry to place a copy of this judgment on record of the connected files.

(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J //Jaiman// (Downloaded on 06/06/2021 at 11:51:47 PM) Powered by TCPDF (www.tcpdf.org)