Amit Goel; Pradeep Pal Singh; Anshul Goyal v. Additional Director General, DRI

1. By way ofinstant writ petitions under Article 226 ofthe Constitution ofIndia read with Section 482 ofthe Code ofCriminal Procedure, 1973,the petitioners are praying as under:- "a. Issue a writ of Mandamus directing the officers working under the charge and subordinate to the Id. Respondent to permit the presence ofthe advocate with the petitioner while interrogating/ enquiry in case/file DRI/DZU/23/INT/101/2020 in conformity with the law propounded by the Hon'ble Supreme Court ofIndia and this Hon'ble Court, as citedsupra;and/or W.P.(CRL)1539/2020& connected matters Page[1] of[7] 2022:DHC:5997 <? b. Directthe Ld. Respondent to conductthe interrogation promptly without undue delay and during the office hours i.e. from 10 AM to 5.00 PM, with usual breaks in the case/file DRI/DZU/23/INT/101/2020. c. And direct the respondent not to take any coercive steps against thepetitioners, in the above matter;"

2. Learned senior counsel appearing on behalf of the petitioners submitted that the petitioners are entrepreneurs and engaged in the business ofimport and trading ofliquor. Petitioners Amit Goel and Pradeep Pal Singh are Directors ofthe companies namely M/s Rad Elan Distributors Pvt. Ltd. and Blue Fluidics Pvt; Ltd and petitioner Anshul Goyal is the proprietor of the companies namely M/s National Food and Beverages, having its office at D-156, Okhla Industrial Estate Phase-1, New Delhi. The said companies are also duly registered with the Customs Authorities under the provisions of the Customs Act, 1962(hereinafter "the Act")and are licensed as a public bonded warehouse under the provisions ofSection 57 ofthe Act.It is further submitted that the said companies are also duly registered with the office of the Zonal Director General ofForeign Trade,New Delhi under the lEC NO. 0508078512 for M/s Rad Elan Distributors Pvt. Ltd. and under lEC No. AKBPG9700A for M/s National Food and Beverages. Learned senior counsel further submitted that on 9* July 2020, premises ofthe companies situated at D-85/3, Okhla Industrial Estate Phase-1, New Delhi, had been search by the Special Investigation and Intelligence Branch(SUB)of the customs department but nothing incriminating had been found in that search and the custom duty which was pending due at the time ofsaid search had also been deposited by the companies voluntarily. W.P. (CRL)1539/2020&connected matters Page2of[7] ZJl^

3. In September 2020, the Directorate of Revenue Intelligence had initiated investigation in the cases of the said imports made by Diplomats/Embassies, in furtherance thereof,the premises ofthe companies had again been searched by the respondent and the panchnama had been drawn on 10^"^ September 2020,in this regard. It is further submitted that in connection with the investigations,as stated above,the business associate of the petitioners, Mr. Rajesh Jain, had been called at their office and he was thrashed and beaten by the officers of the respondent and was coerced to make statement on dictated lines. The petitioners had been sent a summons ^ under Section 108 ofthe Act on his office email,requiring him to appear on 23"'September 2020.A reply to the said notice had been sent by the wife of Mr. Pradeep Pal Singh, through Speed Post to the respondent and some further time had been requested for appearing before the Investigating officer ofthe respondent.

4. It is further submitted that the petitioners apprehend that the officers ofthe Directorate ofRevenue Intelligence would call the petitioners in their office and would meet out the similar treatment as has been given to Mr. Rajesh Jain and other business associates. It is further submitted that the statements recorded under the provisions of Section 108 of the Act are treated as judicial confessions and can jeopardize the defence of the petitioners in the proceedings, which may ultimately be lodged/initiated by the respondent against the petitioners. Learned senior counsel submitted that the petitioners are petrified with the highhanded treatment by the officers ofthe respondentand therefore prayed that this Court may allow the petitioners to appear before the Senior Investigating Officers of the f? W.P.(CRL)1539/2020& connected matters Page3of[7] respondent, in the presence of their counsel, who would be present at a visible distance and not within the audible/hearing range.

5. In support ofhis arguments,learned senior counsel has referred to the judgment ofthe Hon'ble Supreme Court in the matter of Vijay Sajnani and Another vs. Union ofIndia and Another(2019)18 SCC 819 wherein it is observed as under:- "4. Accordingly, we allow the criminal miscellaneous petition, as well as the writ petition and direct that the petitioners' advocate should be allowed to he present during the interrogation ofthe petitioners. He/they should be made to sit at a distance beyond hearing range, but within visible distance and the lawyer must be prepared to be present whenever the petitioners are called upon to attendsuch interrogation."

6. Per Contra,leamed Standing Counsel for the respondent vehemently opposed the instant writ petition and submitted that there is no sufficient ground available in the instant writ petition for allowing the prayer as made by the petitioners. It is submitted on behalfofthe respondentthat a specific intelligence was received by the respondent that a syndicate of Delhi and Mumbai based persons is engaged into smuggling of imported cosmetics goods and food supplements without payment of Customs duty. Acting on the said intelligence, searches were conducted at various premises in Mumbai and Delhi on 9'*^ September 2020 and 10'^ September 2020.During search proceedings,smuggled cosmetics goods offoreign origin were found stored and various incriminating documents were also found. It is further submitted that during recording ofstatement ofthe concerned persons under Section 108 ofthe Act, the names ofthe petitioners and their accomplices had cropped up and summonses were issued to the petitioners to join the W,P. (CRL)1539/2020& connected matters Page4of[7] investigation. It is informed that the petitioners have not joined the investigation so far even after receipt ofvarious summonses issued to them by the officers ofthe respondent.

7. It is further submitted thatthe statements tendered by Shri Rajesh Jain and Shri Sanjay,under Section 108 ofthe Act are voluntary and recorded in a cordial manner,withoutanyforce,threatorcoercion. The apprehension of the petitioners is baseless and therefore, the prayer of the petitioners to appear before the officers ofthe respondent in presence oftheir counsel is without any merit or cogent reason. In support of his arguments, learned Standing Counsel for the respondent has relied upon the judgment of Hon'ble Supreme Courtin Sudhir KumarAggarwal v. Directorate General of GST Intelligence 2019 SCC OnLine Del 11101 wherein it is held as under

21. Perusal ofthe above case law reveals thatpresence ofa 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 ofthe lawyer, therefore, is not required during the examination of the petitioner as per the law laid down by Hon'ble Supreme Court in PoolPandi's case(Supra). Sofar as apprehension ofpetitioner that he may be physically assaulted or manhandled is concerned, this Court is ofthe 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 informationfrom 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 20.09.2019 which is against the judgment passed by Hon'ble Supreme Court in Pool W.P.(CRL)1539/2020& connected matters Page5of[7] Pandiv.Superintendent, Central Excise(1992) 3 SCC 259:1992 AIR 1795(SC) therefore, stands modified and it is clarified that presence ofa lawyer cannot he allowed to the petitioner at the time of questioning or examination by the officers ofthe respondent."

8. It is submitted thatthe apprehension ofthe petitioners is baseless and imaginary and the proceedings conducted under Section 108 ofthe Act are deemed to bejudicial proceedings within the meaning ofSections 193 and 228 ofthe Indian Penal Code,1860.The statements recorded under Section 108ofthe Actare voluntary,withoutanyforce,threatorcoercion.

9. Relying upon Sudhir Kumar AggarwaVs case (Supra), learned counsel for the respondent submitted that the Hon'ble Supreme Court has clarifiedthatpresenceofalawyercannotbeallowedtothepetitionersatthe timeofquestioningorexaminationbytheofficersoftherespondent.

10. Keeping in view the aforesaid facts and circumstances and law discussed hereinabove,learned counsel for the respondent prayed that the thereisnomeritintheinstantwritpetitionsandareliabletobedismissed.

12. TheHon'bleSupreme Courtin the VijaySajnani'scase(Supra)has held as under.". "3 Similar matters have beenfiled before us earlier and m w.w«s—s: piofthe writ petition by directing a jgg „/ the event similar orders, heflhey) may 'ffyloihe cusiols UdrUies concerned W u similar Page6of[7] W.P.(CRL)1539/2020&connected matters provision may be made for his/their interrogation in the presence ofthe learned counsel, as indicated hereinahove."

13. There are specific allegations made by the petitioners that their business associate, Mr. Rajesh Jain had been beaten and threatened by the respondentin the course of investigation for the purpose of recording the statement as per their wishes. In light ofthese serious allegations made by their business associate, the petitioners apprehend that they may, too, be physically assaulted or manhandled.Since, the allegations levelled by the business associate ofthe petitioners raise a reasonable apprehension on the ^ part ofthe petitioners and the Hon'ble Supreme Courtin the aforementioned judgements has also expressed similar view while granting such relief, this Courtfinds it appropriate to grantthe reliefas prayed for by the petitioners.

14. Accordingly, the present writ petitions are allowed with direction to the appropriate authority that the petitioners would be interrogated in ^ presence ofan Advocate ata visible,but not audible distance in relation to the interrogation by the Officers of DRJ in accordance with the direction given by the Hon'ble Supreme Court in Vijay Sajnani(Supra). It is also directed that the proceedings be video-graphed in terms oforders passed by the Hon'ble Supreme Court in case ofRajinder Arora & Ors. V[5]. Union of India & Ors passed in WritPetition(Civil)389 of2010.

15. With the aforesaid directions,the writ petitions stand disposed of.