ASMITA AGARWAL Vs. ENFORCEMENT DIRECTORATE

JUDGEMENT

(1.) A very interesting point has been raised in this petition as to whether the provisions of the Criminal Procedure Code would apply to an investigation carried out under Foreign Exchange Regulation Act,1973 (called the FERA). Mr.K.K.Sud, Additional Solicitor General appearing, for the respondents, No. 1 & 2 contended that FERA is a complete Code in itself therefore, for the purposes of investigation the aid of the provisions of the Code of Criminal Procedure cann't be put in service. To support his contention he placed reliance on the decision of Supreme Court in the case of Dukhishyam Benupani Vs. Arun Kumar Bajorja 1996 (1) SCC 52. In that case High Court had directed the investigation Agency not to arrest the accused and that the interrogations be conducted on the appointed dates, times and also fixed the duration thereof. The Apex Court while setting aside those directions observed that such kind of supervision on the enquiry or investigation under a statute is uncalled for and further observed that making such interference with the functions of the statutory authorities particularly when such authorities are exercising their power under the law is not permissible. Apex Court also observed that it was not he function of the court to monitor investigation so long as such investigation does not transgress any provision of law.

(2.) In the case of State rep. by the CBI Vs. Anil Sharma (1997) 7 Supreme Court Cases 187, the Apex Court observed that a blanket order fully insulating a person from arrest would make his interrogation a mere ritual. In the case of Poolpandi Vs.Superintendent. CentraI Excise (1992) 60 E.L.T. 24 (S.C.) Apex Court observed that the person called for interrogation has no right to have his lawyer present during Questioning by Officers under Section 107, 108 and 110 of Customs Act, 1962 and other similar statutes. Such person not equitable with an accused in a criminal case. The argument of the petitioner therein was that if a person is called away from his 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 is violated because a person who is used to certain comforts and convenience and he ,is asked to come by himself for answer ins questions, it amounts to mental torture. While rejecting this argument Apex Court held that he had no constitutions right to claim luxuries and company of his choice when called for interrogation because if that is allowed then the purpose of enquiry under the Customs Act and the other similar statutes will be completely Frustrated if the whims of the person in possession of useful information for the departments is allowed to prevail.

(3.) Mr. K.K.Sud, Additional Solicitor General relying on the observation of the Constitut ion Bench in the case reported in Romesh Chandra Mehta v. State of west Bengal 1969(2) SCR 461 and Illias Vs. Collector of Customs, Madras, 1983 E.L.T. 1420 (SC) contended that the provision of the FERA and the provision of the Customs Act, 1962 are in para materia. The subject of both the Acts is also similar. Therefore, decision of Supreme Court in cases under the Custom Acts would squarely apply to the present case. He further contended that since FERA is a special legislation hence provision of Code of Criminal Procedure would not apply - The investigation would strictly be conducted under the provision of FERA - To support his contentions he placed reliance on the decision of Supreme Court in the case of CBI Vs. State of Rajasthan & Others JT 1996 (6) SC 313 where the Apex Court observed that FERA is a special legislation relating to regulation of Foreign Exchange and that the provision of Sections 4 & 5 of Code of Criminal Procedure will not come in aid of the investigation of the offences under FERA by a member of police force like an officer of DSPE in accordance of the Criminal Procedure Code. Sections 4 and 5 of the Code of Criminal Procedure according to Mr. Sud cannot be used in aid by the petitioner because the provisions under FFRA gives power to the officers of the Directorate of Enforcement or other officers duly authorised by the Central Government to search , conspirate, recover, arrest, record statements of witnesses, etc. FERA being a special law contains provisions for investigation , enquiry, search , seizure , trial and imposition of punishment for offences under FERA, therefore, the provision of Section 5 of the Code of Cr iminal Procedure are not applicable. FERA provides the manner and place of inquiring into, trying or otherwise deal ing with such offences. Hence, the provisions of Code of Criminal Procedure are not applicable. In this regard he also placed reliance on the case of Enforcement Directorate & Anr. vs. M. Samba Siva Rao & Ors. 2000 (5) SCC 231.