ABDUL RAJAK HAJI MOHAMMED Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition involves an interesting question whether a person summoned under S.40 of the Foreign Exchange Regulation Act can claim the right to have his advocate present during the course of his interrogation by the Officers of the Enforcement Directorate.

(2.) The Petitioner in this Criminal Writ Petition Abdul Rajak Haji Mohammed was summoned by the Officers of the Enforcement Directorate under S.40 of the Foreign Exchange Regulation Act, 1973 (Act 46 of 1973) (hereinafter referred to as "the F.E.R.A."). The brief facts are that on 29-6-1985, the residential and office premises of the petitioner Abdul Rajak Haji Mohammod were searched by the Enforcement Directorate as also by the Officers of the Directorate of Revenue Intelligence. In the course of the search certain incriminating documents were recovered from the office premises and an amount of 450 Hongkong Dollors was seized from his residence. On 30-6-1985 one Mohammed Isaq Kapadia, the Marketing Manager of the New Bengal Lodge of which the present petitioner was a Partner, was arrested on 1-7-1985, Mohammed Isaq was produced before the learned Metropolitan Magistrate, Esplanade. A Remand Application was filed in the Court. Mohammed Isaq was ordered to be remanded in custody for a period of seven days. On 1-8-1985 a Detention Order was issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) against the present Petitioner Abdul Rajak as also against Mohammed Isaq, the Marketing Manager. The Advisory Board under the COFEPOSA recommended the release of Mohammed Isaq on 11-10-1985. The petitioner Abdul Rajak filed a Civil Writ Petition in the Delhi High Court and the detention order was set aside on 13-12-1985. On 2-1-1986, the petitioner Abdul Rajak filed an Application for Anticipatory Bail in the Court of Session, Greater Bombay, being Anticipatory Bail Application No.2 of 1986. At the hearing of the said Application the Enforcement Directorate gave an undertaking that they would give forty-eight hours' notice to the petitioner Abdul Rajak before arresting him. Thereupon the Application came to be rejected. The learned Sessions Judge directed the petitioner Abdul Rajak to surrender his Passport and to attend the Enforcement Directorate daily for a period of one month. On 3-1-1986 the petitioner Abdul Rajak attended the Enforcement Directorate. At this time he applied to the Officers of the Directorate to allow his Advocate to remain present during his interrogation. This Application was rejected by the Enforcement Directorate on 6-1-1986. On the same day, i.e. on 6-1-1986, the petitioner Abdul Rajak made an Application to the Court of Session praying that the officers of the Enforcement Directorate be ordered to permit the petitioner's Advocate to remain present during the course of his interrogation.

(3.) The learned Sessions Judge by his order dated 14-1-1986 was pleased to reject the Application of the petitioner Abdul Rajak Haji Mohammed praying for leave to let his Advocate remain present during the course of his interrogation. The petitioner Abdul Rajak has now filed this Criminal Writ Petition praying that his Application dated 6-1-1986 be allowed and the Order passed by the learned Sessions Judge dated 14-1-1986 be set aside.