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2022 Supreme(Del) 830
IN THE HIGH COURT OF DELHI AT NEW DELHI
Yogesh Khanna, J.
Directorate Of Enforcement - Appellant
Versus
Satyendar Kumar Jain - Respondent
Crl.M.C. 2869 of 2022 and Crl.M.A.11846 of 2022
Decided On : 03-06-2022
Mr. S.V.Raju, ASG, Mr. Zoheb Hossain, Special Counsel, Mr. Vivek Gurnani, Mr. Anshuman Singh, Mr. Ankit Bhatia, Mr. Harsh Paul Singh, Advocates, with, Mr. Surender Mulik, Deputy Director and, Mr. Gaurav Saini, Asstt. Legal Adviser, for the Appellant; Dr.Abhishek Manu Singhvi, Mr. N.Hariharan, Senior Advocates with, Mr. Bhavook Chauhan, Mr. Vivek Jain, Mr. Siddharth S.Yadav, Mr. Shadan Farasat, Mr. Amit Bhandari, Ms. Tanvi Tuhina, Mr. Vivek Jain, Mr. S. Atif, Mr. Nitin Sharma, Ms. Akriti Gupta Mittal, Ms. Rekha Angara, Mr. Prateek Bhalla, Mr. Punya Lekha Angara, Mr. Tushar Yadav, Mr. Vaibhav Yadav, Mr. Mohd. Irshaad, and, Mr. Rishikesh Kumar, Advocates, for the Respondent.
The right to presence of a lawyer during interrogation and recording of statements is not absolute and depends on the specific circumstances of each case.
Headnote:
Presence of Lawyer - Right to presence of lawyer during recording of statements under Section 50 of PMLA - Poolpandi and Others vs. Superintendent, Central Excise and Others 1992 (3) SCC 259; Sudhir Gulati vs. Union of India 1998(45) DRJ (DB); Ramesh Chandra Mehta vs. State of West Bengal (1969) 2 SCR 461
Fact of the Case:
The petitioner sought to set aside the direction in the impugned order that allowed the presence of an advocate at a safe distance during the interrogation of the accused under Section 50 of PMLA.
Finding of the Court:
The court analyzed various judgments on the right to presence of a lawyer during interrogation and recording of statements under different statutes. It held that the right to presence of a lawyer during interrogation is not absolute and depends on the specific circumstances of each case.
Issues: The core issue was whether the respondent has a right to the presence of his lawyer during recording of his statements under Section 50 of PMLA.
Ratio Decidendi: The court considered precedents such as Poolpandi and Others, Sudhir Gulati, and Ramesh Chandra Mehta to determine that the right to presence of a lawyer during interrogation is not absolute and depends on the nature of the offense and the specific circumstances of the case.
Final Decision: The impugned direction allowing the presence of an advocate at a safe distance during the interrogation was stayed by the court.
ORDER
1. This petition is filed with the following prayer:-
a) Set aside the impugned direction in order dated 31.05.2022 passed by the Ld. Addl. Sessions Judge/Special Judge (PC Act), CBI-24 (MPs/MLAs Cases) RADC, New Delhi in M.No.71/2022 and 72/2022, ECIR/HQ/14/2017, in as much as the Ld. Special Court has directed at Para 26 of the impugned order that during the time of enquiry/interrogation from the accused, one Advocate of the accused shall be allowed to remain present at a safe distance where from where he can see the accused but not hear him.
2. The learned Trial Court in para 26 of the impugned order dated 31.05.2022 has noted as under:-
26. The Ld. Sr. Advocate for the accused had prayed that one counsel be assigned who shall be within visible distance of the accused but not audible distance during interrogation which was vehemently opposed by the Ld. SG. However, considering the facts and circumstances, it is directed that during the time of enquiry/interrogation from the accused one Advocate of the accused shall be allowed to remain present at a safe distance where from he can see the accused but not hear him.
3. Heard.
4. The core issue raised in the matter is - if the respondent has a right of presence of his lawyer during recording of his statements under Section 50 of PMLA, at a safe distance from him from where the lawyer can see the accused and not hear him.
5. Both the learned counsels have cited various judgments on this issue.
6. In Poolpandi and Others vs. Superintendent, Central Excise and Others 1992 (3) SCC 259, the Court did not find force in the argument that if a person is called away from his own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under Article 21 shall be violated. The Court held large majority of persons connected with illegal trade and evasion of taxes and duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of but that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice.
7. It was further held the purpose of the enquiry under the Customs Act and the other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities are of the view such person should be disassociated from the atmosphere and the company of person who provide encouragement to them in adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company.
8. In Sudhir Gulati vs. Union of India 1998(45) DRJ (DB), the Division Bench of this Court held:-
In view of the aforesaid discussion, we are of the view that the petitioner is accused of an offence in respect of the FIR noticed hereinbefore within the meaning of Article 20(3) and cannot be compelled to be a witness against himself. But the scope of offence under the aforesaid FIR and scope of enquiry under Customs Act, 1962 is different. An enquiry under Customs Act primarily relates to the smuggling of goods. Section 108 confers upon a Gazetted officer of the Customs the powers to summon any person whose attendance he considers necessary to give evidence or to produce a document or any other thing in any enquiry which such officer is making in connection with the smuggling of goods. The person so summoned is bound to attend and to state the truth upon any subject respecting which he is examined or makes statements and produce such documents and other things as may be required. Therefore, the impugned summons cannot be set aside. The petitioner is required to appear and answer such questions and give such information regarding himself which do not tend to incriminate him. In our view the petitioner is also not entitled to
