IMPORTANT POINT
Persons called for interrogation under the provisions of the Customs Act, 1962 and the Foreign Exchange Regulation Act, 1973, are not entitled to the presence of their lawyers when they are questioned during the investigation.

JUDGMENT

L.M. Sharma, J. - The common question arising in these cases is whether the respondent in Criminal Appeal No. 476 of 1986, the appellant in Criminal Appeals No. 301-302 of 1987 and the petitioners in the order cases are entitled to the presence of their lawyers when they are questioned during the investigation under the provisions of the Customs Act, 1962 and the Foreign Exchange Regulation Act, 1973 (hereinafter referred as to 'FERA'). There is difference of opinion between the High Courts on this issue, the Delhi High Court in the judgment (reported in 1985 Crl. Law Journal at page 1325) under challenge in Criminal Appeal No. 476 of 1986 holding against the revenue, and the Madras High Court taking the opposite view in its judgment impugned in Criminal Appeals No. 301-302 of 1987.

2. The main argument has been addressed by Mr. Salve with reference to the facts in Criminal Appeals No. 301 and 302 of 1987 arising out of a matter under the Customs Act, 1962. Mr. U.R. Lalit, the Counsel in Writ Petition (Crl.) No. 717 of 1991, has adopted his contentions and supported the same by additional grounds. The Enforcement Directorate, Delhi Zone, investigating the matter under the FERA, has filed Criminal Appeal No. 476 of 1986 against the judgment of the Delhi High Court allowing the applications under section 482 of the Criminal Procedure Code, of the respondents, who are represented before us by Mr. Panjwani.

3. Mr. Salve referred to the provisions of Chapter XIII and XIV of the Customs Act and contended that since there is no statutory provision prohibiting the presence of a Counsel during the interrogation of the person concerned, are quest in this regard, if made, cannot be legitimately refused. If any event, the learned Counsel proceeded to urge, that in a situation where the possibility of the person under interrogation of being prosecuted as an accused cannot be denied, he is entitled to the assistance of a lawyer during the questioning, because to deny him such a right would be violative of the constitutional protection under Article 20(3) of the Constitution. Alternatively Mr. Salve contended that in view of the constitutional protection of life and personal liberty guaranteed by Article 21, the person concerned is entitled to insist upon the presence of his lawyer when he is questioned by the officers of the department.

4. Both Mr. Salve and Mr. Lalit strongly relied on the observations in Nandini Satpathy v. Dani (P.L.) and Anr.1. We are afraid, in view of two judgments of the Constitution Bench of this Court in Romesh Chandra Mehta v. State of West Bengal2, and Illias v. Collector of Customs, Madras3, the stand of the appellant cannot be accepted. The learned Counsel urged that since Nandini Satpathy's case was decided later, the observations therein must be given effect to by this Court now. There is no force in this argument.

5. Mr. Salve referred to the provisions of the Customs Act and contended that in view of the mandate in section 108(3) a person has to answer truthfully the question put to him by the Customs Officer and has to produce documents or any other thing as may be required, and he is within his rights to refuse to answer such questions which may lead to his own prosecution. An inquiry under the Act is held only when prima facie some violation of the law takes place, and the purpose of the inquiry is to identify the guilty person who has been described by the learned Counsel as the potential accused. The protection under Article 20(3) is claimed to be not limited to persons who are already accused but to extend to cover a potential accused too; and a person under interrogation may himself be such a potential accused. He may, therefore, required the presence of a lawyer who can advise him as to which of the questions he may refuse to answer in view of the protection under Article 20(3). It is submitted that to deny him this privilege is to deny him a constitutional right. We do not find any merit i