2019 (2) TMI 2031 - HC - Customs

Seeking permission for presence of counsel at the time of interrogation - HELD THAT - At this stage the learned counsel for the DRI denies upon instructions that the petitioner s employees were subjected to any oppressive or coercive measures during interrogation. He submits that the petitioner had not been cooperating in the manner the Division Bench ordered on 25.01.2019 although he has joined investigations on 16.01.2019; that he did not appear on 28.01.2019 and 04.02.2019. However it is submitted that the case was listed on 01.02.2019 and was adjourned for today. The petitioner shall appear before the I.O. tomorrow at 12 o clock and on all such dates when he is so required by the I.O. He shall have the benefit of the presence of a counsel who may watch the proceedings from a distance but beyond the audible range. It is expected that questioning will be carried out during office hours. Petition disposed off.

Summary

Issues:
Notice under section 108 of the Customs Act, 1962 - Presence of counsel during interaction - Apprehension of coercive measures - Compliance with previous court orders - Application of legal precedents.

Analysis:
The petitioner sought the presence of his counsel during interactions under section 108 of the Customs Act, 1962, due to apprehensions of coercive measures. The petitioner's company had been issued a notice, and there were allegations of high-handedness by the investigating agency. The petitioner referenced various legal precedents, including the dicta of the Supreme Court in different cases, to support the request for counsel's presence during the investigation. The respondent opposed this relief, citing the judgment in Poolpandi case, which emphasized the need for interrogation without the presence of lawyers to prevent interference with investigations.

The court considered the Poolpandi judgment and subsequent cases, such as Senior Intelligence v. Jugal Kishore Samra, which highlighted the importance of allowing counsel during interrogation in specific circumstances. In a similar matter, the court in Bhag Singh v. Union of India held that the presence of counsel during interrogation under section 108 of the Customs Act was not a violation of fundamental rights. However, in Vijay Sajnani v. Union of India, the Supreme Court directed that the counsel could be present within visible distance but beyond hearing range during interrogation.

The Supreme Court in Birendra Kumar Pandey v. Union of India discussed the presence of counsel during interrogation and distinguished between active involvement and passive observation by the lawyer. The court allowed the petitioners' advocates to be present during interrogation within visible distance but beyond hearing range. Additionally, in a previous case, the court permitted the presence of counsel during interrogation but not within audible range.

Considering the arguments and previous judgments, the court directed the petitioner to appear before the Investigating Officer with the benefit of counsel's presence who could observe the proceedings from a distance beyond audible range. The court emphasized the need for cooperation during investigations and specified that questioning should occur during office hours. The petition was disposed of accordingly, with instructions for the petitioner to comply with the investigative process under the specified conditions.