Is the presence of lawyer of the accused at the time of recording his statements permissible?

PJ/Case Law/2020-2021/3623

M/s Sudhir Kumar Aggarwal 2020(34) GSTL155(Del.) dated 06.11.2019
Issue: Is the presence of lawyer of the accused at the time of recording his statements permissible?
Brief Facts: The petitioner is a director of M/s Dominion Expo ventures Pt. Ltd. which is engaged in the business of import of FMCG items and tobacco products. The premises of the petitioner which was rented out was searched by the GST officers. Further the officers were also investigating about the company. Also employee of the company was illegally detained and was manhandled and was in a state of trauma after being illegally detained by the GST Officers.
Applicant’s Contention: The petitioner contended that he was innocent and has nothing to do with the investigation. Further the petitioner submitted that he shall attend the investigation if summons were sent to him. But in spite of doing so the GST Officers have been harassing them physically and mentally. Reliance has been placed by the petitioner in the case of Nandini Satpathy v. P.L. Dani and Anr., wherein the Hon’ble Supreme Court has held as under:
“63. 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 observation of the right to silence. The Miranda decision has insisted that of an accused person asks for lawyer’s assistance, at the stage of interrogation, it shall be granted before commencing or continuing with the questioning. We think that Article 20(3) and Article 22(1) may, in a way, be telescoped by making prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined. Overreaching Article 20(3) and Section 161(2) will be obviated by this requirement. We do not lay down that the police must secure the services of a lawyer. That will lead to police-station-lawyer system, an abuse which breeds other vices. But all that we mean 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, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will the project.”
It was further argued by the petitioner that though they had not received summons to appear from the GST officers, they intend to appear before the officers provided they do not cause physical, mental and verbal harassment during the pending investigation. It was further submitted that the officers were already in possession of all the documents relating to the petitioner’s company and therefore, they need not take any coercive steps in the present investigation. All the offences under the Act are compoundable under Section 138 of the CGST Act and hence the arrest was wholly unnecessary. There are many judgments right from ‘Nandini Satpathy’s case (supra) which provide for the presence of lawyer during investigation. There is no difference between investigation/interrogation by the Customs officers or Police Officers so far as presence of lawyer during the said period is concerned. So he prays for protection from the GST officers by way of presence of lawyer during the pending investigation.

Respondent’s Contention: The respondent has presented a judgement passed by Hon’ble Supreme court in case of “Pool Pandi v. Superintendent, Central Excise and Ors” wherein it was refused to allow the presence of a lawyer during questioning under Customs Act and the excerpt has been replicated below
“ 11. We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from his own 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. The argument proceeds thus : if the person who is used to certain comforts and convenience is asked to come by himself to the Department for answering question it amounts to mental torture. We are unable to agree. It is true that large majority of persons connected with illegal trade and evasion of taxes and duties are in a position to afford luxuries on lavish scale of which an honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits. But that cannot be a ground for holding that he has a constitutional right to claim similar luxuries and company of his choice. Mr. Salve was fair enough not to pursue his argument with reference to the comfort part, but continued to maintain that the appellant is entitled to the company of his choice during the questioning. 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 departments are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-cooperative 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. (Emphasis supplied).”
So the respondent submits that the petitioner in the present case does not have clean antecedents also. Presently, he is on conditional interim bail granted vide order dated 24-5-2019 by the concerned Ld. Trial Court in a case which is being investigated by DRI and this fact has been concealed from this Court.
It was next submitted that under Section 70 of the CGST Act, 2017 ‘any person’ whose attendance was considered necessary either to give evidence or to provide a document or anything in any inquiry can be summoned. It was submitted that petitioner was being called for the purpose of questioning. It was, therefore, prayed that order be modified wherein the prayer of petitioner seeking presence of lawyer during examination by the respondent was allowed as this will frustrate the very purpose of the inquiry.

Reasoning of Judgement: It was held that the judgement passed in the case of Pool Pandi’s is reasonable and so the presence of lawyer during investigation is not necessary. The judgement has been passed on the basis of the following words.
“21. Perusal of the above case law reveals that presence of a lawyer cannot be allowed at the time of examination of a person under the Customs Office. The petitioner in the present case has been summoned by the officers under GST Act who are not Police Officers and who have been conferred with the power to summon any person whose attendance they consider necessary to give evidence or to produce a document. The presence of the lawyer, therefore, is not required during the examination of the petitioner as per the law laid down by Hon’ble Supreme Court in Pool Pandi’s case (supra). So far as apprehension of petitioner that he may be physically assaulted or manhandled is concerned, this Court is of the opinion that it is a well settled law now that no inquiry/investigating officer has a right to use any method which is not approved by law to extract information from a witness/suspect during examination and in case it is so done, no one can be allowed to break the law with impunity and has to face the consequences of his action. The order dated 20-9-2019 which is against the judgment passed by Hon’ble Supreme Court in ‘Pool Pandi v. Superintendent, Central Excise and Ors. - AIR 1992 SC 1795’, therefore, stands modified and it is clarified that presence of a lawyer cannot be allowed to the petitioner at the time of questioning or examination by the officers of the respondent.
22. The application stands disposed of accordingly.”

Comment:If any officer physically assaults or manhandles or uses any method not approved by law to extract information then he has to face consequences of his action. The officer has the right to exercise the power of inspection, search and seizure under sections 67 and 70 of CGST Act 2017. So the officers while exercising the power need to be very careful and should take proper action which does not result into assault.

Prepared by- CA Akanksha

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PJ/Case Law/2020-2021/3623

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