PARADESI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This petition has been filed under section 482, Cr. P.C , by the petitioners, Paradesi and Arumugham, to set aside the order of the learned Sessions Judge, Cuddalore, dated 17-1-1986 passed in Cr1. M P. 2032 of 1985, setting aside the order dated 31-10-1985 passed by the Judicial First Class Magistrate. Chidambaram in Cr1. M.P. No. 4466 of 1985, insofar as it relates to the permission granted to the petitioners to have the presence of their counsel on 14-11-1985 before the respondent herein, while granting bail to the petitioners.

(2.) The petitioners herein surrendered before the Judicial First Class Magistrate, Chidambaram, on 29-10-1985 and filed Cr1. M.P. No. 4466 of 1985. Aggrieved by the direction given by the Judicial First Class Magistrate, Chidambaram, permitting the petitioners herein to have the presence of a lawyer while appearing before the respondent herein on 14-11-1985, the respondent herein preferred Cr1. M.P. No. 2032 of 1985 before the learned Sessions Judge, Cuddalore under Section 439(i)(b) Cr1. P.C. The contention of the respondent before the Sessions Court is, that the respondent is empowered to make an enquiry under the provisions of section 107 of the Customs Act, 1962, even on suspicion and during such inquiry the petitioners herein are not the accused person and as such not entitled to have the presence of an Advocates during such enquiry and that therefore the order passed by the learned Judicial First class Magistrate on 31-10-1985 giving permission on to the petitioners herein to have the presence of a counsel during an enquiry, In pursuance of any summons issued under section 107 of the Customs Act, is not correct. Learned Sessions Judge, after examining the various decisions cited before him, accepted the contention of the respondent herein and on that ground negative the permission granted to the petitioners to have the presence of their lawyer during the enquiry. It is to quash that portion of the order passed by the learned Session Judge, this petition has been filed.

(3.) Learned counsel for the petitioners contended that the denial of the right to the petitioners herein to have a counsel for their own during an enquiry under section 107 of the Customs Act is opposed to Article 22(1) of the Constitution as well as to the provisions of Sections 108 and 146-A of the Customs act. His further contention is that the denial of the petitioners to have an assistance of a counsel during an enquiry conducted under Section 107 of the Customs Act is contrary to the judgment of the Delhi High Court reported in K.T. Advani, New Delhi v. State, New Delhi.1 I find no force in the contention of the learned counsel for the petitioners. Provisions of Section 146.A of the customs Act which empower a person who is entitled or required to appear before an officer of Customs or the Appellate Tribunal in connection with any proceedings under the said Act, to have an authorised representative, including that of a legal practitioner, will not apply to a person who is summoned to appear before any Gazetted Officer of Customs under the provisions of Section 108 of the Customs Act.