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1996 Supreme(Cal) 455
HIGH COURT OF CALCUTTA
S. K. Mookherjee & R. Bhattacharyya, JJ.
Union of India & Ors.
Versus
Ajit Kumar Agarwalla & Anr.
G.A. No. 1763 of 1996
Decided On : December 10, 1996
A person called for questioning during investigation by authorities under the Customs Act or the Foreign Exchange Regulation Act (FERA) is not an accused and cannot claim the presence of a lawyer during questioning.
Headnote:
CUSTOMS ACT - INVESTIGATION - POOL PANDI'S CASE - SCOPE - APPLICABILITY OF ART. 20(3) AND ART. 22(1) OF THE CONSTITUTION OF INDIA - PRINCIPLES LAID DOWN IN POOL PANDI'S CASE AND STATE OF MADHYA PRADESH VS. SHOBHARAM AND ORS. - DISTINCTION - APPLICABILITY OF THE PRINCIPLE OF 'APPROBATE AND REPROBATE' - INTERPRETATION OF SECTION 108 OF THE CUSTOMS ACT, 1962.
Fact of the Case:
The appellants, who were under investigation by the Custom Authorities, challenged two orders passed by the learned single Judge of the Calcutta High Court. The first order laid down the manner in which the investigation was to be carried out, including the time and place of interrogation and the presence of an Advocate of the petitioners' choice. The second order clarified the first order and directed the respondents to give copies of the statements recorded during interrogation on a day-to-day basis.
Finding of the Court:
The Court held that the appeal was maintainable against the two orders and that the principle laid down in Pool Pandi's case, which held that a person called for questioning during investigation by authorities under the Customs Act or the Foreign Exchange Regulation Act (FERA) is not an accused and cannot claim the presence of a lawyer during questioning, was applicable in the present case. The Court also held that the principle laid down in State of Madhya Pradesh vs. Shobharam and Ors., which held that an accused had a right to be represented or assisted by a lawyer, did not conflict with the principle laid down in Pool Pandi's case, as the right to legal assistance in the latter case was limited to proceedings or actions for recovery of money against the accused.
Issues: 1. Whether the appeal against the two orders passed by the learned single Judge was maintainable? 2. Whether the principle laid down in Pool Pandi's case was applicable in the present case? 3. Whether the principle laid down in State of Madhya Pradesh vs. Shobharam and Ors. conflicted with the principle laid down in Pool Pandi's case?
Ratio Decidendi: 1. The Court held that the appeal was maintainable as the scope of the appeal was limited, in the absence of a cross appeal, and the appellants had not waived their right to challenge the order by complying with it. 2. The Court held that the principle laid down in Pool Pandi's case was applicable in the present case as the facts were similar and the appellants were not accused at the time of questioning. 3. The Court held that the principle laid down in State of Madhya Pradesh vs. Shobharam and Ors. did not conflict with the principle laid down in Pool Pandi's case as the right to legal assistance in the latter case was limited to proceedings or actions for recovery of money against the accused.
Final Decision: The Court allowed the appeal and set aside the impugned orders, except for the direction regarding the use of materials collected during investigation. The Court also directed that the investigation be expedited and that the use of materials collected during the investigation would abide by the results of the appeal.
S.K. Mookherjee, J.
This is an appeal assigned to us for being heard out. In connection with the appeal, an application for interlocutory order has been presented. The appeal is directed against two orders passed by learned single Judge of this Court, one dated 21st May, 1996, and the other dated 30th May, 1996. In substance, by the first order, the learned single Judge laid down the manner in which the investigation, in accordance with law, was to be carried out, by directing, inter alia, that the time for such investigation, on Mondays, Wednesdays and Fridays, would be between 11-00 A.M. and 4-00 P.M. and that the petitioners would be at liberty to take assistance of an Advocate of their own choice, who would be present to over-see the interrogation going on without interfering with the same. The other direction, relevant for the present purpose, was that the petitioners would be supplied with a copy of the seizure list of the documents within a period of 10-days from the date of the order and that they would be entitled to have copies or extracts of the documents seized from their custody; petitioners were also granted leave to have the order modified upon notice. By the order, dated 30th May, 1996, while dealing with the petitioners' application for clarification/modification of the order dated 21st of May, 1996, the learned Judge appears to have clarified by recording that during the period of seven weeks the petitioners should not be arrested without leave of the Court and the respondents were directed to give copies of the statements recorded by the interrogating authorities in course of interrogation on a day to day basis. The learned Judge, while doing so, refused the prayer of the respondents for filing affidavit-in-opposition to the application for clarification, but recorded that the allegations be deemed not to have been admitted.
2. In course of hearing, before us, the learned Counsel for the contesting parties had taken great pains in making very detailed submissions, which can be said to have great relevance, particularly for the disposal of the main writ application, which was pending consideration before the single Bench. Indeed, the validity of the proceedings, initiated by the Custom Authorities, had been sought to be assailed, on behalf of the respondents to the appeal, and countered on behalf of the appellants, in addition to the specific contention having been raised with regard to the scope of the present appeal and the propriety of the adjudication of other points.
3. At the very outset, we would like to point out that the scope of appeal before us, is very limited, in the absence of a cross appeal, coupled with the admitted fact that in compliance with the initial order, passed by the learned Trial Judge, dated 21st of May, 1996, interrogation had already commenced. We feel it necessary, at this juncture, to record that we are not unmindful of the contention, raised on behalf of the respondents to the present appeal, very emphatically, that after having conformed to the order, dated 21st of May, 1996, it was not open to the appellants to assail the same through the present appeal and ask the Court to set the same aside. For avoiding any misunderstanding, we do not feel hesitant to record that only on that ground the right of the respondents/appellants to challenge the order, dated 21st of May, 1996, cannot be deemed to have been waived. For an authority on the above proposition, reference may be made to the case of Bhau Ram vs. Baij Nath Singh & Ors., reported in AIR 1961 SC 1327. On the same principle we feel to be well within our jurisdiction also to consider the propriety of the clarifying/modifying order passed by the learned single .Judge, dated 30th May, 1996.
4. In this connection, on behalf of the respondents, the English case of Lissenden vs. CAV Bosch. Ltd., reported in 1940 LR, page 412 : (1940) 1 AER 425, had been relied upon and referred to, by the petitioners/ respondents to emphasi
