TMI Blog2023 (4) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in the present of the learned counse - Subsequent decisions of the Apex Court, on which the reliance has been placed by the learned counsel for the Petitioner, has permitted the presence of the Advocate during the interrogation of the Petitioner at visible but not audible distance. The decisions of the other High Courts have taken a view that the presence of lawyer cannot be insisted as a matter of right. However, the decisions have a persuasive value and is not binding upon this Court. The direction which has been sought by the Petitioners as regards the presence of the lawyer at visible but not audible distance is an aspect of fair investigation and we do not find any reason to take a different view from the view taken by the Coordinate Benches of this Court - it is not deemed fit to grant the relief of video-graphing. The presence of the Petitioners advocate during the interrogation of the Petitioners is permitted at a visible but not audible distance - petition allowed. - REVATI MOHITE DERE AND SHARMILA U. DESHMUKH, JJ. For the Petitioner : Dr. Sujay Kantawala a/w Ms. Aishwarya Kantawala, Mr. Diya Jayan, Ms. Diksha Kukrety For the Respondent : Mr.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deepakbhai Chavda vs. The State of Maharashtra and Anr. [in Criminal Writ Petition (ST) No. 6697 of 2023, delivered by this Court on 10th April, 2023]; (c) Kamlesh Kumar Mishra s/o Brijabhooshan Mishra vs. The State of Maharashtra and Anr. [in Criminal Writ Petition No. 1313 of 2023, delivered by this Court on 10th April, 2023]; (d) Navin Kumar Jain s/o Kantilal Jain vs. The State of Maharashtra and Anr. [in Criminal Writ Petition (ST) No. 6418 of 2023, delivered by this Court on 10th April, 2023]; (e) Gautam Ghevarchand Jain vs. Union of India and Anr. [in Writ Petition No. 883 of 2023, delivered by this Court on 23 March, 2023]; (f) Deputy Director, DRI, Mumbai Zonal Unit vs. Kaja Abdul Hameed and Another [2019 SCC OnLine Bom 5363]. 5. Per contra, learned counsel for Respondent No. 2 submits that the presence of lawyers during interrogation cannot be claimed as a matter of right. He has taken this Court through the affidavit-in-reply dated 22nd February, 2023 filed by Shri Vibhore R. Goyal, Deputy Director, Directorate of Revenue Intelligence. He would contend that it is only in exceptional circumstances that the presence of lawyers may be permitted during the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Respondent No. 2 s office at Nhava Sheva Unit to one Shri C.R. Unnikrishnan. Learned counsel for the Petitioner submits that in both these cases Respondent No. 2 has permitted the presence of the lawyer during the interrogation. 7. Next, we have an affidavit-in-sur-rejoinder dated 24th March, 2023 filed by Shri Vibhore Goyal, Deputy Director, DRI stating that the facts of the case wherein the presence of the lawyer was permitted are materially distinct and different from the present case, inasmuch as, the summons of DRI Kolkata is related to a case of Duty Free Import Authorisation and the summons of DRI Nhava Sheva mentioned at Exhibit-J related to Misuse of Drawback Scheme . 8. Considered the submissions of the parties and perused the papers with the assistance of learned counsel for the parities. For the purpose of the present case, it is not necessary for us to go into the facts of the case leading to issuance of the summons to the Petitioners under Section 108 of the Act. The limited prayer which has been sought by the Petitioners is the presence of their lawyer at visible and not audible distance during the interrogation and video-graphing of the same a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the Respondent No.2 is concerned, the decision in the case of Poolpandi (supra), was distinguished by the Apex Court in the case of Birendra Kumar Pandey vs. Union of India (Cri. Writ Petition No. 28/2012). The Apex Court held that the decision rendered in the case of Poolpandi (supra), was in the context of the direct involvement of the learned counsel during the actual interrogation where the lawyer assumed an active role during the interrogation. As regards the decisions in the case of Sandeep Jain vs Additional Director DRI (supra), Amit Joshi (supra), Pawan Kumar (supra) and Bhag Singh (supra), the Delhi High Court, Allahabad High Court and Rajasthan High Court followed the decision rendered in the case of Poolpandi (supra) and has not permitted the presence of the Advocate. In the case of Saurabh Mittal (supra), the Delhi High Court held that the relief regarding the presence of lawyer at visible but not audible distance is to be granted sparingly, in exceptional circumstances, where it appears prima facie that the apprehension of the person is sincere and bonafide. The Calcutta High Court in the case of Enforcement Directorate vs Partha Chatterjee (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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