Interrogation for case under NDPS Act – whether the person to be interrogated has a right of presence of lawyer?

PJ/Case Laws/2011-12/1443

Case: SENIOR INTELLIGENCE OFFICER v/s JUGAL KISHORE SAMRA

Citation: 2011 (270) E.L.T. 147 (S.C.)

Issue:- Interrogation for case under NDPS Act – whether the person to be interrogated has a right of presence of lawyer?

Brief Facts:- On July 20, 2006, the officers of DRI, Hyderabad, raided premises of M/s. Hy-Gro Chemicals Pharmatek Private Ltd and found a shortage of 250 kgs of Dextropropoxyphene Hydrochloride (DPP HCL). DPP HCL is a manufactured narcotic drug as specified in Government of India's Notification S.O. 826(E), dated November 14, 1985, at Serial no. 87.

C.K. Bishnoi (accused no. 1) and P.V. Satyanarayana Raju (accused no. 2), the Managing Director and the Production Manager, respectively, of M/s. Hy-Gro Chemicals Pharmatek Private Ltd., admitted that the drug was clandestinely cleared to M/s. J.K. Pharma Agencies, New Delhi, of which the respondent and his brother, Ramesh Kumar Samra (accused no. 3) happen to be the partners.

On the next day, i.e., July 21, 2006, a search was carried out at the Cargo Complex of the Indira Gandhi International Airport, New Delhi, and five drums containing DPP HCL were discovered. On examination of the cargo it was found that the contraband was manufactured by M/s. Hy-Gro Chemicals Pharmatek Pvt. Ltd. and was sent to M/s. J.K. Pharma Agencies by wrongly declaring the consignment as 5-Amino Salkylk Acid. The DRI registered a case against C.K. Bishnoi, P. V. Satyanarayana Raju and Ramesh Kumar Samra for the offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

According to the respondent, on November 5, 2006, when he, accompanied by his brother and another person arrived at the DRI office in, Hyderabad, at 10:30 pm, they were tortured by the DRI Officials. Unable to withstand the torture, the respondent suffered a heart attack and was moved to a hospital. The respondent was discharged on November 7, 2006 and advised complete bed rest for a month. But he went directly to the DRI Office to enquire about the whereabouts of his brother. He was kept waiting for 2 days and was also given threats of third degree methods. On November 9, 2006, en route to the DRI Office, the respondent developed chest pain and was again hospitalized till November 11, 2006.

Earlier, the respondent filed an application for anticipatory bail under Section 438 of the Code of Criminal Procedure which was allowed by the Metropolitan Sessions Judge, on the ground that the respondent was not shown as an accused in the case and, therefore, the bar under Section 37 of the NDPS Act did not apply to him and further, the medical record filed by the respondent showed that he had been suffering from heart disease and had already undergone heart surgery on two occasions.

After the grant of anticipatory bail, the respondent filed another application under Section 438(2) of the Cr P.C. for modification of the order of anticipatory bail to the extent that the interrogation and examination of the respondent be conducted in the presence of his advocate and a cardiologist. The Metropolitan Sessions Judge, by order dated December 15, 2006, partly allowed the application of the respondent after perusing the medical record and holding that the presence of an advocate at the time of interrogation of the respondent by the DRI officials is necessary to ensure free and fair interrogation.

Aggrieved by the order of the Metropolitan Sessions Judge dated December 1, 2006, the appellant moved the Andhra Pradesh High Court in petition praying for cancellation of the anticipatory bail granted to respondent. The High Court found no merit in the petition and dismissed it by order dated January 31, 2007.

Here it may be noted that on the same day, i.e. January 31, 2007, another bench of the Andhra Pradesh High Court allowed another petition filed by the appellant and cancelled the bail granted to the respondent's brother, Ramesh Samra by the Metropolitan Sessions Judge on December 19, 2006. Challenging the order of the High Court, however, Ramesh Kumar Samra, came to this Court in SLP. The special leave petition was allowed and by order dated December 10, 2009 this Court set aside the order of the High Court. The bail of Ramesh Kumar Samra too was, thus, removed.

The respondent, aggrieved by the order of the Metropolitan Sessions Judge dated December 15, 2006 directing for the respondent's interrogation to take place only in presence of his lawyer, the appellant sought to challenge it in revision before the High Court. The High Court dismissed the revision petition by order, upholding the order of the Sessions Judge.

The matter has been brought to the Supreme Court now, by the appellant in appeal by grant of leave. At the special leave petition stage, the Court had made the direction that interrogation of the respondent can be carried out in accordance with the direction of the High Court.

Respondent’s Contention:- Respondent stoutly defended the order passed by the Sessions judge and affirmed by the High Court. He invoked the rights guaranteed under Articles 20(3), 22(1) and 22(2) of the Constitution of India to justify the respondent's plea that his interrogation can take place only in presence of his lawyer. In support of the submission, reliance was placed on a decision by a bench of three judges of the Supreme Court in Nandini Satpathy v. P.L. Dani [(1978) 2 SCC 424].

Reasoning of Judgment:- The Supreme Court perused the judgment given in Nandini Satpathy v. P.L. Dania and observed that the decision of the Court in that case was delivered by Justice Krishna Iyer and it is a fine example of his Lordship's inimitable polemical style of writing. The boldness of Miranda v. Arizona [(1966) 384 US 436] as an instance of judicial innovation and positivism was still quite fresh and taking Miranda as a source of inspiration, Iyer J., pondered over issues of Judicial philosophy and speculated about the frontiers to which he would have liked to expand the constitutional guarantee under Article 20(3), maintaining, of course, the fine balance between the rights of the individual and the social obligation "to discover guilt, wherever hidden, and to fulfill the final tryst of the justice system with the society.

It was mentioned that in holding, "the prohibitive sweep of Article 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only" the decision in Nandini Satpathy apparently went against two earlier constitution bench decisions of the Supreme Court in Ramesh Chandra Mehta v. State of West Bengal [1969 (2) SCR 461] and Illias v. Collector of Customs, Madras [1983 (13) E.L.T. 1427 (S.C.)].

In the end, the Court allowed the appeal filed by the Revenue authorities in the case in which the High Court had directed for interrogation to take place in presence of the advocate and dismissed all the other appeals in the batch on behalf of the individuals in whose cases the High Court had declined to are any such direction.

The Supreme Court perused the judgments given in the following cases:

- D.K.Basu v. State of West Bengal [2002-TIOL-230-SC-MISC]

- Poolpandi v. Suprintendent [2002-TIOL-625-SC-CX]

It is seen above that the respondent applied for and got anticipatory bail on the premise that he was not an accused in the case. There was no change in his position or status since the grant of bail till he was summoned to appear before the DRI officers. On the facts of the case, therefore, it is futile to contend that the respondent is entitled, as of right, to the presence of his lawyer at the time of his interrogation in connection with the case. Moreover, the respondent's plea for the presence of his lawyer at the time of his interrogation clearly appears to be in teeth of the decision in Pool pandi. It was noted that the decision in Poolpandi case was under the Custms Act, 1962 and the Foreign Exchange Regulation Act, 1973. That both these Acts have stringent provisions regarding search, seizure and arrest and some of the offences undereach of these two Act carry a punishment of imprisonment upto 7 years. It was therefore, held that a case registered under NDPS Act cannot be said to be a “regular criminal” case and the cases under the Customs Act and FEMA are as criminal cases.

In view of the clear and direct decision in Pool pandi, the Supreme Court finds the order of the High Court, affirming the direction given by the Sessions Judge clearly unsustainable.

Strictly speaking the direction mentioned in D. K. Basu’s case does not apply to the case of the respondent, because he being on bail cannot be described as an arrestee. But, it is stated on behalf of the respondent that he suffers from heart disease and on going to the DRI office, in pursuance to the summons issued by the authorities, he had suffered a heart attack. It is also alleged that his brother was subjected to torture and the respondent himself was threatened with third degree methods. The medical condition of the respondent was accepted by the Metropolitan Sessions Judge and that forms one of the grounds for grant of anticipatory bail to him.

Taking a cue, therefore, from the direction made in D.K. Basu and having regard to the special facts and circumstances of the case, the Supreme Court directed that the interrogation of the respondent may be held within the sight of his advocate or any other person duly authorized by him. The advocate or the person authorized by the respondent may watch the proceedings from a distance or from beyond a glass partition but he will not be within the hearing distance and it will not be open to the respondent to have consultations with him in course of the interrogation. The impugned order is set aside and substituted with direction given hereinabove.

Decision:- Appeal allowed accordingly.

Comments

S.L.Bansal on 25 December, 2011 wrote:

It is a good judgment but the experience shows that officers are not following Supreme Court judgment in the case of D.K.Basu Case and are not allowing presence of lawyer from audiable distance.

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PJ/Case Laws/2011-12/1443

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