Madras H.C : the petitioner to be accompanied by an advocate of his choice when he appears before the respondent in pursuance of the summons issued to them under s. 37

High Court Of Madras

P. Giribabu vs. Deputy Director Of Enforcement

Section 131, 131(1)(b), Advocates Act, 1961, Section. 30; Foreign Exchange Management Act, 1999, Section. 37(3); Oaths Act, 1969, Section. 3

K. Venkataraman, J.

Writ Petn. Nos. 23110 & 23558 of 2009; Misc. Petn. No. 1 of 2009

26th March, 2010

Counsel Appeared :

B. Kumar for M/s T. Chezhiyan, for the Petitioners : M. Dhandapani, for the Respondent

JUDGMENT

K. Venkataraman, J. :

These writ petitions have been filed for mandamus directing the respondent to permit the petitioner to be accompanied by an advocate of his choice when he appears before the respondent in pursuance of the summons issued to them under s. 37 of the Foreign Exchange Management Act, 1999 (FEMA), and recording of statement, though the advocate will be present beyond the hearing distance, if need be.

2. The averments made in the affidavit filed in support of the writ petition in Writ Petn. No. 23110 of 2009, in a nutshell are set out hereunder : (i) The petitioner is a businessman and has a jewellery shop under the name of Sri Vasavi Gold & Bullion (P) Ltd., at N.S.C. Bose Road, Chennai. He is assessed to sales-tax and income-tax. All of a sudden, the officers of the respondent conducted a search in his shop on 23rd Oct., 2009. They did not recover any document or any other incriminating material. However, they forcibly took him to the office of the Enforcement Directorate at Sastri Bhavan. What happened at that place was described by him in his communication to the respondent sent by RPAD on 25th Oct., 2009. The advocate of the petitioner was not permitted to meet him. Though the petitioner requested the respondent to permit him to appear with a lawyer of his choice, a reply dt. 27th Oct., 2009, was sent by the respondent, rejecting his request. (ii) Sec. 37(3) of the Foreign Exchange Management Act, 1999 (FEMA) provides that the officers under the FEMA shall exercise powers like the powers conferred on the IT authorities under the IT Act, 1961, subject to the limitations contained therein. Sec. 131 of the IT Act provides that the officers thereon shall have the powers vested in a Court under the Cr.PC, 1908, for the purpose of enforcing attendance of any person for examining him on oath. The Cr.PC in turn requires to be noted to understand the width of power of examination of the persons. Order 10, r. 2 of the Cr.PC provides for oral examination of the party or his pleader to elucidate the issues involved in a suit. Order 16 of the Code provides for examination of witnesses and issuance of summons thereto. Order 18 provides for recording of evidence and r. 2 of order 18 provides for cross-examination and attendance of witnesses. (iii) Since the same procedure is to be adopted under s. 37 of the FEMA also, the persons summoned have to be examined on oath. Sec. 7 of the Oaths Act, 1969, provides that what is recorded after administration of oath is evidence.

The IT Act provides that examination by an officer is deemed to be a judicial proceeding and hence a person is entitled to be represented by an advocate of his choice. (iv) The FEMA is not a penal enactment but it is only a civil proceeding. Hence, the right to be represented by an advocate flows as the cross-examination of the petitioner is justified as if before a Court of law. The respondent has no jurisdiction or power to deny the presence of an advocate. The right of a fair procedure is part of the requirement of Art. 21 of the Constitution of India. It is being denied by the respondent by his refusal to allow the presence of an advocate. (v) Thus, making these averments, the petitioner has come up with the said writ petition.

3. The averments made in the affidavit filed in support of the writ petition in Writ Petn. No. 23558 of 2009, in a nutshell are set out hereunder : (i) The petitioner is doing business as real estate dealers and builders. The officers of the respondent functioning under the FEMA conducted a search on the business premises on the night of 6th Oct., 2009. A large amount of Indian cash was recovered. It was Rs. 1.31 crores. The money actually belonged to a partnership firm M/s Venkatesh Property in which the petitioner is a partner. It was kept in the office for the purposes of investment in real estate. The seizure is, therefore, not justified in the first place. The statement recorded from the petitioner is contrary to the above facts and was out of coercion and illtreatment. The officers forcibly took the petitioner to their office at Sastri Bhavan and detained him there continuously and no outside help was provided to him during the entire period. (ii) At the instance of his relatives, an advocate came to the office of the respondents and wanted to meet the petitioner as he was entitled to, but he was not permitted. Since, he was illtreated, a letter dt. 25th Oct., 2009, was addressed to the respondents requesting him to permit to appear before him with an advocate of his choice, if further summons are issued to him. By communication dt. 4th Nov., 2009, the respondent replied that such permission cannot be accorded. He was summoned to appear on 17th Nov., 2009. A grave prejudice will be caused to him, if he is not permitted to be accompanied by an advocate to be present at the time of interrogation. (iii) Thus, the contentions raised in this writ petition are similar to the contentions raised in the other writ petition which was extracted above.

4. Counter-affidavit was filed on behalf of the respondent in Writ Petn. No. 23110 of 2009 wherein the following facts have been set out : (i) The respondent issued summons under s. 37 of the FEMA r/w s. 131 of the IT Act, 1961, to the petitioner vide this office letter dt. 29th July, 2009. After receipt of the above summons, the petitioner appeared before the Asstt. Director of Enforcement Directorate at 2 p.m. on 23rd Oct., 2009, and on the same day he gave a statement giving preliminary details. When further questioned about his involvement in the case, the petitioner refused to answer the question. After that the Asstt. Director issued summons dt. 27th Oct., 2009, and

4th Nov., 2009. The above two summons were not responded by the petitioner but the petitioner’s counsel sent telegrams dt. 23rd Oct., 2009, and 24th Oct., 2009. The request made by the petitioner to permit him to be accompanied by an advocate of his choice at the time of interrogation was denied. (ii) The allegation that the officers of the Enforcement Directorate, Chennai, conducted a search on the PE on 23rd Oct., 2009 is not true. The officers of the Enforcement Directorate visited the petitioner premises on 23rd Oct., 2009 and summons under s. 37 of the FEMA and s. 131 of the IT Act was issued by the Asstt. Director of Enforcement, Chennai for the appearance of the petitioner on 23rd Oct., 2009. In response, the petitioner appeared on his own before the said officer. (iii) There is no provision under the FEMA, 1999 and the IT Act, 1961 to permit the petitioner to appear with a lawyer of his choice, as the petitioner is called for giving evidence under summons. A Division Bench of this Court in the judgment reported in V. Datchinamurthy vs. Asstt. Director of Inspection (1982) 27 CTR (Mad) 106 : (1984) 149 ITR 341 (Mad) has gone into the depth of this issue whether a lawyer can be present during examination of the witness appearing on summons and held that the witness has no right to take his counsel along with him, at the time when the statement is recorded. (iv) The authorized officers of the FEMA are empowered to investigate any contravention of the provisions of the FEMA, 1999, summon any person and record any statement from them in order to unearth the truth or otherwise. The purpose of issuing summons to the person concerned is to make enquiry and record the statements under the provisions of the FEMA. On further investigation, if there appears to be a contravention, the Department is at liberty to initiate adjudication proceedings by issuing a show- cause notice as required under the FEMA and relevant rules thereunder. During the adjudication proceedings the petitioner is entitled to have the assistance of an advocate or a chartered accountant of his own choice to defend him. The petitioner in his voluntary statement given earlier has given intricate details and the investigation is still at the initial stage. The petitioner has been summoned for further enquiry in this regard and for completion of the investigation.

5. Counter-affidavit was filed on behalf of the respondent in Writ Petn. No. 23558 of 2009 wherein the following facts have been set out : (i) Specific intelligence was gathered by the officers of the enforcement that the petitioner has been receiving huge sums of money and making payments locally on a large scale under instructions of persons residing in Dubai and Malaysia and also transfer foreign exchange unauthorizedly abroad. He has received huge amount of Rs. 1.31 crores and he was about to deliver the same to persons who would come from Mumbai to Chennai. Therefore, the officers of the Enforcement Department kept surveillance on the activities of the petitioner. Based on the above specific intelligence and surveillance made, the business premises and the residential premises were searched by the officers of the respondent-Department. During the course of search, the officers have found a box containing Rs. 1.30 crores in the denomination of 1000 and 500 rupee notes in the cabin of the petitioner. The officers also found additional amount of Rs. 1,31,000 in addition to incriminating documents, records, etc., When the officers were interrogating, two persons entered the premises of the petitioner to receive the said amount. (ii) The contention of the petitioner that the amount of Rs. 1.31 crores seized by the Department actually belonged to a partnership firm in which the petitioner is a partner and the same was kept for the purpose of investment in real estate are totally false and incorrect. The petitioner in response to the summons dt. 6th Oct., 2009 and 7th Oct., 2009 appeared before the Asstt. Director and gave a voluntary statement on oath admitting, inter alia, that he is the managing director of M/s Venkateswara Homes (P) Ltd. and proprietor of M/s Sambhav Investments. He has also confessed that he has been receiving and making payments in India as per the instructions of the persons in Dubai and Malaysia for commission. (iii) The respondent after analyzing the entire documents and the statement of the petitioner decided to continue further investigation and hence the petitioner’s appearance was necessitated and, therefore, the petitioner was issued with summons dt. 20th Oct., 2009 and 4th Nov., 2009 for his appearance on 26th Oct., 2009 and 17th Nov., 2009. (iv) The other contentions raised are similar to the counter-affidavit in Writ Petn. No. 23110 of 2009. I have heard Mr. B. Kumar, the learned senior counsel appearing for the petitioners and Mr. M. Dhandapani, the learned special counsel appearing for the respondent.

The first and foremost submission made by the learned senior counsel appearing for the petitioners is that s. 37(1) of the FEMA contemplates power to search by the Director of Enforcement and other officers of enforcement. Sec. 37(3) contemplates that the officers referred to under sub-s. (1) shall exercise like powers which are conferred on the income-tax authorities under the IT Act, 1961. Sec. 131 of the IT Act contemplates that the officers concerned shall for the purpose of that Act, have the powers as are vested in a Court under the Civil Procedure Code, 1908, when trying a suit in respect of the matters enumerated thereunder. One such power enumerated under s. 131(1)(b), namely, enforcing attendance of any person including an officer of a banking institution and examining him on oath. Thus, according to the learned senior counsel appearing for the petitioners, the officer who records the statement under s. 37 of the FEMA is a Civil Court and hence the advocates can appear before the authorities under the FEMA. On the other hand, it was contended by the learned special counsel appearing for the Enforcement Department that for collecting material and gathering facts, statement was obtained from the petitioners. Thus, the officials of the respondent were collecting materials to investigate the matter further at this stage. Thereafter, if the officials of the respondent are not satisfied with the statement of the petitioners, before adjudication, show-cause notice will be caused to the petitioners. Even at the preliminary stage, the petitioner cannot request for assistance of an advocate. Before adverting to the said contentions raised by the learned senior counsel appearing for the petitioners and the learned special counsel appearing for the Enforcement Department, it would be more appropriate to reproduce s. 37 of the FEMA as well as s. 131(1) of the IT Act. Sec. 37 of the FEMA : “37. Power of search, seizure, etc.—(1) The Director of Enforcement and other officers of Enforcement, not below the rank of an Asstt. Director, shall take up for investigation the contravention referred to in s. 13. (2) Without prejudice to the provisions of sub-s. (1), the Central Government may also, by notification, authorise any officer or class of officers in the Central Government, State Government or the Reserve Bank, not below the rank of an Under secretary to the Government of India to investigate any contravention referred to in (3)

The officers referred to in sub-s. (1) shall exercise the like powers which are conferred on IT authorities under the IT Act, 1961 (43 of 1961) and shall exercise such powers, subject to such limitations laid down under the Act.” Sec. 131(1) of the IT Act : “131. Power regarding discovery, production of evidence, etc.—(1) The AO, Dy. CIT(A), Jt. CIT, CIT (A) and Chief CIT or CIT shall, for the purposes of this Act, have the same powers as are vested in a Court under the CrPC., 1908 (5 of 1908), when trying a suit in respect of the following matters, namely(a) discovery and inspection; (b) enforcing the attendance of any person, including any officer of a banking company and examining him on oath; (c) compelling the production of books of account and other documents; and (d) issuing commissions.” Sec. 37(3) of the FEMA, no doubt contemplates that the officers who are entrusted with the power to search shall exercise like powers which are conferred on the IT authorities under the IT Act, 1961 and shall exercise such powers subject to limitations laid down under the Act. Sec. 131 of the IT Act confers the same power for the authorities as are vested in a Court under the Cr.PC. It has been asserted in the counter-affidavit, that the purpose of issuing summons to the petitioners are to make an enquiry and record the statements. On further investigation, if there appears to be a contravention, the Department would be at liberty to initiate adjudication proceedings as required under the FEMA and relevant rules therein. During the adjudication proceedings, the petitioner is entitled to have an advocate or chartered accountant of his choice to defend him. It has been further stated in the counter-affidavit that the investigation is still at the initial stage and the petitioners have been summoned for further enquiry in that regard and for completion of the investigation.

The question that arises for consideration is whether at the stage of preliminary investigation, the petitioners can seek the assistance of a lawyer. When collecting materials to take further action, the officers of the FEMA do not act as a Court. Whether the petitioners will be treated as accused of contravention of the provisions of the FEMA or whether they would be treated as witness would be decided after preliminary enquiry or investigation by the authorities concerned. Even at the initial stage itself, before the adjudicating authorities come to a conclusion to proceed further or not, there need be no assistance to the petitioners either by an advocate or by a chartered accountant. The said view was taken by the Division Bench of this Court which is reported in V. Datchinamurthy vs. Asstt. Director of Inspection (1982) 27 CTR (Mad) 106 : (1984) 149 ITR 341 (Mad). The observations made by the Division Bench are usefully extracted hereunder (pp. 349, 353, 356, 361) : “The question thus to be considered is whether the scope of the enquiry under the IT Act is the same as it was before the Civil Court in passing the decree. The Civil Court adjudicated, though in a summary way, on the claim of the depositors in the present case, based on the promissory notes executed in their favour. The ITO in making investigation in the case of the Federation was seeking to find out the person to whom the money belongs. In other words, he wanted to find out whether there was any income earned by the Federation, which took its shape as deposits in the names of these persons, who had obtained decrees. As the scope of the enquiry under the IT Act is wholly different from that before a civil Court, it is not possible to accept the submission that the ITO in making the enquiries was acting in any manner contrary to the findings of the Civil Court. Any action taken by the ITO is not likely to set at naught these decrees if they otherwise remained unchallenged in accordance with the provisions of the C.P.C. in the appropriate forum. As the scope of the enquiries by the Civil Court and by the ITO are different, the principle of this decision cannot be applied to the facts herein . . .

We agree with this statement of principle by the learned Judge. We hold that a witness has no right to take his counsel along at the time when his statement is recorded . . . It is thus manifest that there is great latitude allowed to the ITO in the collection of materials and he does not act as a Court at that stage. There are no two parties before him, and the procedure in the adversary system of proceedings cannot be applied to him. However, the ITO, before he uses the materials so collected, is bound to give the necessary opportunity to the assessee to test the evidence, to adduce any evidence in rebuttal and to explain the facts that appear against him. Thus, it is clear that the ITO cannot be asked to put on, or be thrust with, the garb of a Court, even at the stage of collection of evidence. . . The ITO is a Tribunal of a kind. He is duly appointed under the IT Act to discharge the powers and functions which are well-defined by the statute. His principal job is to make an assessment of the income and levy income-tax on the basis of his determination. For the purpose of discharging these functions, he is invested with the power to gather information, material evidence, and the like. A specific power is conferred on him to summon witnesses, enforce their attendance, issue commissions and the like. In this respect, his powers are co-equal with those of Courts of law under the CPC. He is held to be a Tribunal within the meaning of s. 135(2) of the CPC., and witnesses who have to appear before him are protected from arrest. He is also a Court for purposes of the Cr.PC. In these circumstances, the ITO, in his own sphere, is a Tribunal of plenary jurisdiction subject to no other control and limitations save those which are enacted in the income-tax Code.

It stands to reason, therefore, that the investigations and inquiries launched by him are not subject to the jurisdiction of ordinary Courts. Indeed, there is a specific provision in the IT Act which forbids Courts of law from interfering with the ITO’s jurisdiction to assess vide s. 293.” Thus, considering the overall aspects of the judgment cited above, I am of the considered view that the petitioners have no right to take their counsel along with them at the time when their statements are recorded by the respondent or his officials. Secondly, it was contended by the learned senior counsel appearing for the petitioners that s. 3 of the Oaths Act, 1969 enables administration of oath. However, the respondent has not administered the oath as required under the said Act. Before adverting to the said contention, s. 3 of the Act is usefully reproduced hereunder : “3. Power to administer oaths.—(1) The following Courts and persons shall have power to administer, by themselves or, subject to the provisions of sub-s. (2) of s. 6, by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties imposed or in exercise of the powers conferred upon them by law, namely : (a) all Courts and persons having by law or consent of parties authority to receive evidence; (b) the commanding officer of any military, naval, or air force station or ship occupied by the armed forces of the union, provided that the oath or affirmation is administered within the limits of the station. (2) Without prejudice to the powers conferred by sub-s. (1) or by or under any other law for the time being in force, any Court, Judge, Magistrate or person may administer oaths and affirmations for the purpose of affidavits, if empowered in this behalf— (a) by the High Court, in respect of affidavits for the purpose of judicial proceedings ; or (b) by the State Government, in respect of other affidavits.”

18. In this connection, the learned special counsel appearing for the Enforcement Directorate relied on the decision reported in Hira H. Advani vs. State of Maharashtra AIR 1971 SC 44. One of the questions that came in for consideration before the Hon’ble apex Court in the said decision was about the admissibility of the statements made to the officer under s. 171A of the Sea Customs Act. Paras 33, 34, 35 of the judgment are usefully extracted hereunder : “33. In our view if the legislature intended that the inquiry under s. 171A was to be considered a judicial proceeding not within the narrow limits therein specified but generally, it could have used suitable words to express its intention. Although, this Court gave a wider meaning to the expression ‘judicial proceeding’ in Lalji Hari-Das’s (1964) 6 SCR 700 : AIR 1964 SC 1154 there is nothing in that judgment to warrant a still wider interpretation of that definition. Mr. Jethmalani referred to the provisions in the Indian Oaths Act (X of 1873) and on the basis of his argument that the statements under s. 171A(4) were made on oath contended that the proceeding became a judicial proceeding in the wider sense of the word. In our view, the Oaths Act has no application here. The preamble to the Act shows that it was an Act to consolidate the law relating to judicial oaths, affirmations and declarations and was enacted because the legislature thought it expedient to consolidate the law relating to judicial oaths, affirmations and declarations and to repeal the law relating to official oaths, affirmations and declarations. Sec. 4 of the Act provided that :

The following Courts and persons are authorised to administer, by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law : (a) all Courts and persons having by law or consent of parties authority to receive evidence.’ The relevant portion of s. 5 runs— ‘Oaths or affirmations shall be made by the following persons.— (a) all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any Court or person having by law or consent or parties authority to examine such persons and to receive evidence :’ 35. Counsel argued that a customs officer was a person who had authority by law to receive evidence within the meaning of s. 4 of the Oaths Act and anybody who could be lawfully examined before such a person would be a witness within the meaning of s. 5 and as such it would be necessary to administer oath to them. In our view, the argument proceeds on a complete misconception of the provisions of the Act. The preamble to the Act shows that the oaths referred to are only judicial oaths and s. 7 shows that all such oaths had to be administered according to such forms as the High Court might prescribe. The Customs Officers have nothing to do with such forms and nothing has been shown to us that any such formality was ever complied with. Neither do the records show that any oath was administered to any person making a statement under s. 171A. In Maqbool Hussain’s (1953) SCR 730 : AIR 1953 SC 325 this Court stated expressly that the Customs Officers were not authorised to administer oath and the position according to us is not altered by the insertion of s. 171A in 1955.”

Considering the above judgment coupled with the fact that the respondent is investigating the matter which is at the preliminary stage, I am of the considered view that the question of administering oath does not arise for consideration at all. The next contention of the learned senior counsel appearing for the petitioner is that the advocate’s right flows from the Advocates Act, 1961. Sec. 30 of the Act contemplates the rights of advocates to practice. While so, denying permission to the petitioners to have an advocate of their choice at the time of taking statement from the petitioner is untenable. Before adverting to the said contention of the learned senior counsel appearing for the petitioner, it would be desirable to extract s. 30 of the Advocates Act, 1961. “30. Rights of advocates to practise.—Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends— (i) in all Courts including the Supreme Court; (ii) before any Tribunal or person legally authorised to take evidence; and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.”

21. The reading of the above provision makes it clear that the advocate is entitled to practise in all Courts including the Supreme Court, before the Tribunal or person legally authorised to take evidence or before any other authority or person. No doubt the said provision stipulates that the advocate is entitled to practice, including before the persons legally authorised to take evidence. Further, the respondent is not taking any evidence from the petitioners and hence the reliance placed on the Advocates Act, 1961 may not be of any relevance to the matter in issue in these writ petitions. But, however, the Advocates Act, 1961, only speaks about the rights of the advocates to practise in any Court or authorities and it does not speak about the rights of the parties to engage a counsel before the Supreme Court or any other forum.

22. In this connection, the learned senior counsel appearing for the petitioners relied on the decision reported in Smt. Jasivant Kaur vs. State of Haryana AIR 1977 P&H 221 (FB). The question that arose before the High Court of Punjab & Haryana was with regard to the constitutional validity of s. 20A of the Haryana Ceiling on Land Holdings Act which bars the appearance of any legal practitioner before any officer or authority other than the financial CIT. It was held by the Division Bench that s. 20A is repugnant to s. 30 of the advocates Act and therefore invalid. It has been held therein that the said Act is a complicated piece of legislation and it would indeed be difficult for lay persons to understand some of its provisions without expert legal assistance. Under those circumstances, it has been held by the Division Bench that the need of legal assistance to enable those persons to understand the provisions of the Act shall not be deprived.

23. The other judgment that was cited by the learned senior counsel appearing for the petitioners is reported in H.S. Srinivasa Raghavachar vs. State of Karnataka AIR 1987 SC 1518. The prohibitions of the legal practitioners from appearing before the Land Tribunals under the Karnataka Land Reforms Act came in for consideration before the Hon’ble apex Court and the Hon’ble apex Court has held the said provision as unconstitutional.

24. The said judgments may not be of any use to the petitioners, since in the given case on hand, it is only at the stage of preliminary investigation.

25. The learned special counsel appearing for the respondent relied on the decision reported in Poolpandi vs. Superintendent, Central Excise (1992) 60 ELT 24 (SC). Paragraph 11 of the said judgment is usefully extracted here under (p. 30) : “11. We do not find any force in the arguments of Mr. Salve and Mr. Lalit that if a person is called away from him own house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends his constitutional right under art. 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 questions 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 disassociated 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.”

26. Thus, in the case on hand, for collecting materials and to gather facts, statements were obtained from the petitioners. Thus, collecting material to investigate cannot be construed as an evidence taken by the respondent from the petitioners, which requires the assistance by an advocate.

27. Yet another decision relied on by the learned special counsel appearing for the respondent is reported in Dy. Director of Enforcement vs. A.M. Ceaser (1999) 113 ELT 804 (Mad). Paragraph 12 of the said judgment is usefully extracted hereunder (p. 809) :

12. With regard to the observation of the lower appellate Court for the handicap faced by the accused in the absence of an advocate, the Supreme Court in Poolpandi vs. Superintendent, Central Excise (1992) 60 ELT 24 (SC) : AIR 1992 SC 1795, has considered that when a person was summoned to appear before the officers under the FERA, he cannot be treated as an accused and under such circumstances, he is not entitled to the presence of his lawyer when he was examined by the officers. Therefore, refusal to allow the presence of lawyer in such cases, would not be violative of protection under art. 20(3) of the Constitution. When the apex Court itself has held so clearly that a person, who was summoned to appear before the Enforcement Directorate for interrogation, is not entitled to seek the presence of the advocate, the lower appellate Court cannot make use of this as a circumstance in favour of the accused to arrive at the conclusion that his statement could not be voluntary.

28. Yet another decision relied on by the learned special counsel appearing for the respondent is reported in Kishore J. Chaiola vs. Union of India (2000) 117 ELT 4 (Mad). This Court in the said judgment has held that person examined under s. 108 of the Customs Act, 1962 is not having a right to have his lawyer at the time of interrogation or near to him in the premises.

29. Yet another judgment relied on by the learned special counsel appearing for the Enforcement Directorate, is an unreported judgment made in Writ Petn. No. 2429 of 2009, dt. 24th Nov., 2009. The question that came for consideration before this Court was whether the summons issued by the respondent therein under s. 37 of the FEMA should be interdicted by this Court on the ground that there was no application of mind and the documents sought for would amount to a roving enquiry by the Directorate. Paragraph 10 of the said judgment is usefully extracted hereunder : “10. The Act has deliberately chosen not to apply the concept of summons used either under the CPC or under the Cr.PC, but has chosen to apply analogous provisions found in the IT Act. Therefore, while interpreting the scope and width of s. 37 of the FEMA, one cannot apply the concept of summons as available to a Civil Court under the CPC, only because the power of a Civil Court was conferred on the authorities.”

30. Yet another judgment relied on by the learned special counsel appearing for the Enforcement Directorate, is the judgment made in Crl. Original Petn. (MD) No. 7646 of 2007, dt. 11th Jan., 2008. Paragraph 11 of the said judgment is usefully…extracted hereunder : “11. The perusal of the eleven conditions would clearly demonstrate that all those eleven conditions are relating to arrestees/detenues. At this juncture, the learned counsel for the respondent would convincingly put forth his arguments that under pretext of examining/interrogating the respondent R. Sundar Raj, he cannot be kept even during night time or for days together, simply labelling him as a mere witness.” Thus, the decisions relied on by the learned special counsel appearing for the respondent will amply prove that the request made by the petitioners to have an assistance of an advocate at the stage of initial and preliminary investigation by the officials of the respondent does not sound well. Thus, summing up the entire discussions made above, I am of the considered opinion that the relief sought for by the petitioners seeking permission to be accompanied by an advocate of his choice when he appears before the respondent in pursuance of the summons issued under s. 37 of the Foreign Exchange Management Act, 1999 (FEMA) and recording of statement in the presence of an advocate who will be present beyond the hearing distance does not require any consideration. In fine, both the writ petitions are dismissed. Consequently, connected miscellaneous petitions are closed. However, no order as to costs

[Citation : 326 ITR 575]