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W.P.(CRL)3896/2018,CRL.M.As.50249-50/2018
NITESH GAHLLOT Petitioner
Through:Mr.Vikram Chaudhri,Sr. Adv.with Mr. Arshdeep Singh,Mr.Harshit Sethi,Mr.Aditya
Chopra,Mr.Rishi Sehgal,Mr.Saurabh Sethm Mohd.UmarIqbal Khan,Advs.
Through: Through: Ms. Maninder Acharya, ASG with Mr. Kirtiman Singh, CGSC, Mr. Prateek Dhanda, Mr. Sahil Sood, Mr. Harshul Choudhary, Mr. Viplav Achan, Advs. and Mr. Rahul Verma,Assistant Director(ED).
VIRESH GAHLLOT Petitioner Mohd.Umar Iqbal Khan,Advs.
Through: Ms. Maninder Acharya, ASG with Mr. Kirtiman Singh,CGSC,Mr. Prateek Dhanda, Mr. Sahil Sood, Mr. Harshul Choudhary, Mr. Viplav Achan, Advs. and Mr. Rahul Verma, Assistant
Director(ED).
HARISH GAHLLOT Petitioner Mohd.UmarIqbal Khan,Advs.
Through: Ms. Maninder Acharya, ASG with Mr. Kirtiman Singh, CGSC,Mr. Prateek Dhanda, Mr. Sahil Sood, Mr. Harshul Choudhary, Mr. Viplav Achan, Advs. and Mr. Rahul Verma, Assistant
Director(ED).
21.12.2018 The petitioner has been summoned by the Enforcement Directorate for preliminary enquiry. He statesthat neither have the requisite documents been suppliedto him nordoesheknow whatthe purpose oftheenquiry is.
Mr.Vikram Chaudhri,the learned Senior Advocate forthe petitioner, relying upon the dicta ofthe Supreme Court in Birendra KumarPandey&
Am. V. Union ofIndia & Am. W.P.(Crl.) 28 of2012, submits that the relief sought in prayer(a)of the petition may be granted. The aforesaid
ORDER
Crl. M.P. No. 9177of2012, has beenfiled on behalfof the petitioners, inter alia,for an order in similar terms as was passed in the case ofRajendra
^ Arora and Others vs. Union ofIndia and Others,on 7'^
December, 2010, or in the case ofMukund Bhai Patel
V. Union ofIndia and Others, on 4'^ March, 2011, so far as the recording ofstatement and interrogation of thepetitioners'was concerned, during thependencyof the instantpetition.
As indicated hereinabove, we have had occasion topass orders on similarapplications before.
The petitioners have been served with notice underSection 108ofthe Customs Act, 1962, to appear before the concerned customs authority for interrogation in connection with certain matters. The petitioners are apprehensive that coercive attempts may be made to extort confessions from them.
Accordingly, they haveprayed thatthe interrogation of the petitioners be conducted not in the immediate presence of their lawyer, but that the petitioners' lawyer should be allowed to be present during the interrogation, within a visible but beyond hearing distance.
The prayer has been opposed by the learned Additional Solicitor General, Mr. P.P. Malhotra, who has brought to our notice the decision of a Three
Judges Bench in the case ofPoolpandi and Others v.
Superintendent, Central Excise and Others (1992) 3 see259. Mr. Malhotrapointed out that the veryfirst paragraph of the said judgment mentions that the common question arising in the said case before their
Lordships was the stand taken by the petitioners that they were entitled to the presence of their lawyers when they were being questioned during the interrogation under the provisions of the Customs
ACT, 1962, or the Foreign Exchange Regulation Act,
1973. Their Lordships had noticed the difference of opinion ofdifferentHigh Courts in this connection and had rejected the submission made on behalf of the petitioners therein, thatthey were entitled to have their lawyers present at the time of interrogation. Such prayer, therefore, was disallowed. Mr. Malhotra has also drawn our attention to the decision in SeniorIntelligence Officer, Directorate ofRevenueIntelligence v. JugalKishoreSamra(2011) 12see362, wherein the decision in Poolpandi's case (supra) was also referred to and, ultimately, having regard to thefacts ofthe case, a two-Judge Bench of this Courtdirectedasfollows: Taking a cue, therefore,from the direction made in D.K. Basu and having regard to the specialfactsandcircumstances ofthe case, we deem it appropriate to direct that the interrogation ofthe respondent may be held d within the sight ofhis advocate or any other person duly authorized by him. The advocate or the person authorized by the respondent may watch the proceedingsfrom 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 the course of the interrogation." In fact, the said direction is the very direction that the petitioners are seeking in this criminal miscellaneouspetition. Apart from the above, this Bench and other Benches ofthis Court have also had occasion to deal with similar matters and we hadpassedsimilar orders to the extent that the petitioners' counsel would be allowed to be present at the time of interrogation within visible distance, though beyond hearing distance. In our view, the decision which was rendered in Poolpandi's case(supra)by a Bench ofThree Judges, was in the context of the direct involvement of the learned counsel during the actual interrogation where the lawyer assumed an active role during the interrogation. On the other hand, the order that has been sought, as passed in various matters, does not y^ contemplatesuch an eventuality.Infact,in termsofthe ( orders which we have earlierpassed, a lawyer has no role to play whatsoever during the interrogation, except to be at a distance beyond hearing range to ensure that no coercive methods were used during the interrogation. Accordingly, we allow the criminal miscellaneous petition and direct that the petitioners' advocate should be allowed to be present during the interrogation ofthe petitioners but that he should be made to sit at a distance beyond hearing range, but within visible range and the lawyer must be prepared to bepresent whenever thepetitioners are called upon / to attendsuch interrogation. The criminal miscellaneous petition is disposed ofaccordingly." In view of the above, the petitioner shall be allowed to be accompanied by a person ofhis choice, preferably a lawyer, who would be able to watch the enquiry/interrogation butnotnecessarily be within hearing distance. Letthe petitioner appear before the Enquiry Officer along with a person ofhis choice on 26.12.2018 at 11 am in W.P.(CRL)3896/2018;on 27.12.2018 at 11 am in W.P.(CRL)3897/2018 and on 28.12.2018 at 11 am in W.P.(CRL)3898/2018. Prayer(b)is not pressed at this stage with liberty to the petitioner to approach this Court in changed circumstances. The petition is disposed oft in the above terms. A copy ofthis order be given dastito the parties,underthe signature ofthe Court Master. N^lWAZIRI,J.