TMI Blog1997 (10) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... order stating that it is open for the petitioners to make appropriate application before the authority seeking permission for the presence or company of an advocate of their choice at the time of interrogation. Pursuant to the said direction, they moved the appropriate authority by Annexure-I application which was disposed of by the authority by the order Annexure-II. Later the writ petition came to be amended by which the petitioners incorporated fresh allegations and also prayer clause (iii-a) seeking to quash and set aside the order at Annexure-II. The petitioners had also moved Crim. Appln. No. 132/97 for appropriate orders. 3. On behalf of respondents, reply was filed to the aforesaid application and additional reply to the amended writ petition. The learned counsel for the respondents sought permission to treat the reply to the application for appropriate orders as reply to the writ petition. Learned counsel, Shri Bobde, for the petitioners maintained that as per S. 40(3) of the Foreign Exchange Regulation Act. 1973 (for short the Act), a person who is summoned by the authority is entitled to have the presence of lawyer at the time of his interrogation. According to the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entions, it becomes necessary to read s. 40 of the Act which reads : 40. Power to summon persons to give evidence and produce documents - (1) Any gazetted officer of Enforcement shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce document during the course of any investigation or proceeding under this Act. (2) A summons to produced documents may be for the production of certain specified documents or for the production of all documents 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 authorised agents, 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 as may be required : Provided that the exemption under S. 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 investigation or proceeding as aforesaid shall be deemed to be a judicial proceedings within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohinder Singh Gill v. The Chief Election Commissioner, and urged that the order Annexure-II only states that the prayer for assistance of the lawyer cannot be entertained on account of the decision in , referred early. The point urged by the learned counsel is, what was considered in the said decision was only the right of such person under Arts. 20(3) and 21 of the Constitution. It was urged by the learned counsel that only the ratio and the principles underlying is binding and the same cannot be extended. Reliance was placed by the learned counsel on the decision in the case of Prakash Amichand Shah v. State of Gujarat, . The trust of the argument of the learned counsel, Shri Bobde, was that in Poolpandi's case, referred early, the aspect as is now urged by the petitioners as per S. 40 of the Act was not considered. Learned counsel, maintained that rules of natural justice apply even to administrative actions which entails civil consequences. 5. Before going into the question whether Poolpandi's case is complete answer to the present prayer by the petitioners, it will be worthy to see, with due regard to the scheme and object of the Act, whether the principles of natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 7. As noted, the main trust of the argument of learned counsel, Shri Bhangde, is on the basis of the decision in Poolpandi's case. It will be seen that the said decision was rendered in an appeal against the decision in K. T. Advani v. State 1987 (30) ELT 390 : (1985 Cri LJ 1325) (Delhi) also. In Advani's case, the High Court on interpretation of S. 30 of Advocate's Act and S. 40 of this Act and Arts. 20(3) and 22(1) of the Constitution, among other things, held that a person so summoned is entitled to have the presence of a lawyer which he is questioned during investigation under the provisions of the Act. Before the Supreme Court various arguments were advanced in support of the said claim which included a contention to the effect that since there is possibility of the person under interrogation being prosecuted he is entitled to have assistance of a lawyer by virtue of Art. 20(3) of the Constitution. Arguments were also advanced under Art. 21 of the Constitution in support of the said claim. Reliance is seen to have been made on the decision in Nandini Satpathy v. Dani (P. L.) . But the Supreme Court repelled the said arguments. What is important in this conne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o-operative 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 constructed in the sprit they were made and the benefits thereunder should not be expanded to favour exploiters engaged in tax evasion as the cost of public exchequer. Applying the just, fair and reasonable test we hold that there is no merit in the stand of appellant before us. A reading of this judgment does not admit of any scope for a claim that the Supreme Court since did not specifically refer to S. 40 in the body of the discussion, it is still open to maintain that S. 40, sub-section (3) particularly has to be interpreted to mean that the authority is obliged to exercise the discretion under S. 40(3) consistent with the principles of natural justice. As indicated, the endeavour of the learned counsel, Shri Bobde, is to read into S. 40(3) the principles of nature justice. The question to be posed in this connection is, whether on account of necessity the principles of natural justice themselves stand excluded. What the learned counsel strived to maintain was, the principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation of statute is to discover the intention of the legislature. When the concerned provision admits of no doubt or ambiguity, the literal meaning of the provision giving effect to wards employed therein has to prevail, for the intention of the legislature is what it states in the statute. But the meaning to be given to a provision should be with due regard to the context in which the provision appear, for the words would capture depth and content of their meaning from the context in which they are used. And when one speaks of context the same takes into its fold the object of the legislation revealed through the preamble and scheme of the said statute. The very object and scope of the statute is such that such claim for the presence of lawyer at the time of questioning or to have a person of his choice to represent him, cannot be entertained and the principles of nature justice has to be held to be excluded by necessity. In the decision in Union of India v. W. N. Chadha, the aspect as to the applicability and exclusion of audi alteram partem rule was considered. The Court held that the rule of audi alteram partem is a rule of justice and its application will exclude where the ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itness. It is not open to a person summoned for interrogation to insist that he must be represented by another. If he is conferred with such a right that would amount to his directing as to how the investigation should proceed. This certainly does not belong to the person summoned. It should be noted that the person so summoned is not one 'accused of an offence.' The very purpose of summoning and questioning is to decide upon as to who is the real person to be proceeded against. 11. The petitioners in paragraph 5 of the petition maintained that one Shri Vinod Goel, a Canadian citizen, made gifts to the petitioners and that it has no other significance. But in para 1 of the reply to the application of the petitioners for appropriate orders, the 1st respondent states that enquiries under the provisions of FERA relating to N.R.I. Vinod Goel were initiated in 1994 and that during the course of investigation it was revealed that one Sanjeev Goel, a person resident in India (staying in Mumbai) was holding mandate to operate the NRE accounts in India on behalf of Shri Vinod Goel. Their modus operandi was to purchase/acquire the foreign currency from the black market in India a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Mann, . Yet endeavour was made to maintain that even if the person summoned as of right cannot insist presence of a lawyer, he still can make a request for the same, and when made the same has to be considered. Reference was made to the decision in Johney D'Couto v. State of Tamil Nadu, in support of the claim for presence of a lawyer drawing parallel to the observation in para 5 of the judgment to the effect that though the provision of the Act disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the service of a lawyer. The first and foremost thing to be noted in appreciating the same is, that was a case of a detenu who was detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The right of a detenu under the relevant provisions of the statute as well as constitution cannot be equated with a claim of a person who is simply summoned for questioning. The said decision cannot come to the assistance of persons like the petitioners, particularly in the context of the declaration of law by Supreme Court in Poolpandi's case . The effect o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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