PRAKASH KUMAR CHOUDHARY Vs. UNION OF INDIA

JUDGEMENT

(1.) A wholesale dealer in cigarettes as agent of Golden tobacco Company is apprehensive of third degree methods being resorted to by the senior Intelligence Officers of the Anti-Evasion Directorate under the central Excises and Salt Act, 1944 (for short the act ). Therefore, he seeks protection from this court by directing the respondent to permit him to be assisted by a legal practitioner during the time when he is interrogated. As the respondents did not oblige, he has filed the original petition contending first that he is not liable to be summoned and in the alternative for a writ of mandamus commanding the respondents to question him only in the presence of a lawyer of his choice. Learned single judge did not accede to the prayers and hence dismissed the original petition filed under Art. 226 of the Constitution. Hence this appeal.

(2.) IT seems that a raid has been conducted in the business premises of this appellant on 20. 1. 1995 and some documents were recovered by the senior Intelligence Officer of the Anti Evasion Directorate of the Cochin unit. A summons was issued to the appellant to be present on 31. 5. 1995 for the purpose of examination under Sec. 14 of the Act. Pursuant to the summons he appeared before the said off icer and he was asked to come again on another day to which also he submitted. Later on Exts. P4 and P5 summons were issued by the second respondent, a senior Intelligence Officer of the Madras unit of the Directorate requiring the appellant to be present on 16. 8. 1995. He submitted to the said summons and was interrogated. Again he was asked to be present for continuation of the interrogation, but he returned home and requested the second respondent that he be interrogated in future only in the presence of a legal practitioner of his choice. Presumably the said request would have been declined and that would have precipitated the matter and he has filed the original petition. '

(3.) !n support of the next limb of the contention that appellant has a right to be accompanied by a legal practitioner during the time of interrogation learned counsel heavily banked on the ratio contained in nandini satpathy v. P. L Dani (AIR 1978 SC 1025 ). There it has been held that "lawyer's presence is a Constitutional claim in some circumstances in our country also and in the context of article 20 (3) is an assurance of awareness and observance of the right to silence". But Their Lordships added that a legal principle is not laid down that accused must secure services of a lawyer and All that was meant is that "if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied". This decision was distinguished by the Supreme Court in the context of the enquiry envisaged in the Customs Act (Vide Poolpandi v. Superintendent, Central Excise (AIR 1992 S. C. 1795) pointing out that in the former it was a case of an accused entitled to protection under Art. 20 (3) and the officers were policemen, whereas in the case under the Customs Act the person does not become an accused during the enquiry stage nor the customs officials police officers. Their Lordships declined to share the apprehension that secret interrogation by denying legal assistance, where he is subject to the uncontrolled and invisible exercise of power by Government Officials, would be unconstitutional. The following observations in para. 11 of the judgment is apposite in this context: "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 depart ments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons would be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-co-operative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. The relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits thereunder should not be "expanded" to favour exploiters engaged in tax evasion at the cost of public exchequer. Applying the "just, fair and reasonable test" we hold that there is no merit in the stand of appellant before us. "