TMI Blog2019 (11) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... ttendance they consider necessary to give evidence or to produce a document. The presence of the lawyer, therefore, is not required during the examination of the petitioner. Application disposed off. - W.P.(CRL) 2686/2019 - - - Dated:- 6-11-2019 - MR. BRIJESH SETHI J. Petitioner Through:- Ms. Geeta Luthra, Sr. Adv. with Mr. Prateek Yadav, Adv. Respondent Through:-Mr. Harpreet Singh, Sr. St. Counsel. JUDGMENT BRIJESH SETHI, J. 1. Vide this order, I shall dispose of an application for modification of order dated 20.09.2019 passed by this court, moved by petitioner under article 226 of the constitution of India read with section 482 of the code of criminal procedure, 1973 for writ of mandamus directing the respondents to not cause any physical, mental or verbal harassment to the petitioner during pendency of the investigation. 2. It was submitted by the learned counsel for the petitioner in his petition that the petitioner was a Director of M/s. Dominion Expoventures Pvt. Ltd. Since 14.05.2016, having its office at FF-35-36, Omex Pearl Tower, Netaji Subhash Place, Pitampura, New Delhi and engaged in the business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own that the police must secure the services of a lawyer. That will lead to police-station-lawyer system, an abuse which breeds other vices. But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will the project. 8. It was next submitted by Ld. Counsel that the maximum punishment that could be imposed under Section 132 of the CGST Act, 2017 was only an imprisonment for 5 years, apart from fine and that therefore, under Section 41 and 41-A of the Code of Criminal Procedure, after its amendment, a person could not be arrested so long as such person complied with the notice for his appearance. It was prayed that the Petitioner herein was ready and willing to join the investigation as and when called by the Respondent agency. 9. Ld. Counsel had also relied upon 'Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273 = 2014 (7) TMI 1143 - SUPREME COURT , wherein it was held that in criminal cases that are punishable with imprisonment of n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the investigation against the petitioner is in respect of fraudulent availment of Input Tax Credit of GST under the cover of fake invoices. It was submitted that this Court had disposed of the petition and allowed the prayer of the petitioner seeking presence of an advocate at the time of recording of statement by the respondent in view of the judgment in Nandini Satpathy s case (Supra). However, the facts of the said case are completely different from the present case in as much as GST officers are not police officers and the offence committed is also completely different and, therefore, Nandini Satpathy s case (Supra) case cannot be relied upon in this matter. 15. At this juncture, it may be clarified that order dated 22.09.2015 was passed by this court on the assurance given by the Ld. Counsel for the respondent that Nandini Satpathy s case (supra) case would be followed by the respondent and on this assurance, the petition was disposed of. 16. The Ld. Counsel for the respondent has now sought amendment in the order submitting that there is a subsequent judgment passed by Hon ble Supreme Court in a case titled Pool Pandi vs. Superinte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant before us. (Emphasis supplied). 17. Ld. Counsel for the respondent has submitted that in the above case, the Hon ble Supreme Court has rejected the prayer of the petitioner seeking presence of a lawyer during investigation. It was next submitted that petitioner in the present case does not have clean antecedents also. Presently he is on conditional interim bail granted vide order dated 24.05.2019 by the concerned Ld. Trial Court in a case which is being investigated by DRI and this fact has been concealed from this court. 18. It was next submitted that under Section 70 of the CGST Act, 2017 any person whose attendance was considered necessary either to give evidence or to provide a document or anything in any inquiry can be summoned. It was submitted that petitioner was being called for the purpose of questioning. It was, therefore, prayed that order dated 20.09.2019 be modified wherein the prayer of petitioner seeking presence of lawyer during examination by the respondent was allowed as this will frustrate the very purpose of the inquiry. 19. Ld. Counsel for the petitioner has, however, opposed the above submission and submitted that the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not tend to incriminate him. In our view the petitioner is also not entitled to assistance of a lawyer at the time of recording of his statement under Section 108 of the Customs Act. (emphasis supplied) 21. Perusal of the above case law reveals that presence of a lawyer cannot be allowed at the time of examination of a person under the Customs Office. The petitioner in the present case has been summoned by the Officers under GST Act who are not Police Officers and who have been conferred with the power to summon any person whose attendance they consider necessary to give evidence or to produce a document. The presence of the lawyer, therefore, is not required during the examination of the petitioner as per the law laid down by Hon ble Supreme Court in Pool Pandi s case (Supra). So far as apprehension of petitioner that he may be physically assaulted or manhandled is concerned, this Court is of the opinion that it is a well settled law now that no inquiry/ investigating officer has a right to use any method which is not approved by law to extract information from a witness/ suspect during examination and in case it is so done, no one can be allowed to break the law wi ..... 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