Delhi High Court

Sudhir Kumar Aggarwal vs Directorate General Of Gst ... on 6 November, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
                    Judgment reserved on: 30.09.2019.
                 Judgment pronounced on: 06.11.2019.
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+       W.P.(CRL) 2686/2019
        SUDHIR KUMAR AGGARWAL                     ..... Petitioner
                                      Through:- Ms. Geeta Luthra, Sr.
                                               Adv. with Mr. Prateek
                                               Yadav, Adv.
                             versus
        DIRECTORATE GENERAL
        OF GST INTELLIGENCE                       ..... Respondent
                                      Through:-Mr. Harpreet Singh,
                                              Sr. St. Counsel.
        CORAM:
        HON'BLE MR. JUSTICE BRIJESH SETHI
                             JUDGMENT

BRIJESH SETHI, J.

1. Vide this order, I shall dispose of an application for

modification of order dated 20.09.2019 passed by this

court, moved by petitioner under article 226 of the

constitution of India read with section 482 of the code of

criminal procedure, 1973 for writ of mandamus directing

the respondents to not cause any physical, mental or

verbal harassment to the petitioner during pendency of the

investigation.

2. It was submitted by the learned counsel for the

petitioner in his petition that the petitioner was a Director

of M/s Dominion Expoventures Pvt. Ltd. since

14.05.2016, having its office at FF-35-36, Omex Pearl

Tower, Netaji Subhash Place, Pitampura, New Delhi and

engaged in the business of import of FMCG items and

tobacco products.

3. It was further submitted that petitioner came to

know that the Respondent agency, conducted a search on

11.09.2019 at the Petitioner's property bearing no.

J5/101E, Rajokri Garden, New Delhi which was rented

out to one Mr. [email protected] Mr. Jaiswal, who was residing at

the said premises with his wife. Mr [email protected] Jaiswal,

was manhandled and was in state of trauma after having

been illegally detained by the officers of the Respondent

agency.

4. It was next submitted that an employee of the

petitioner, namely one Mr. Garg was also, illegally

detained by the officers of the Respondent and was

manhandled, harassed mentally, physically and verbally

by the officers of the Respondent agency.

5. It was next submitted that the petitioner had also

come to know that search team of the respondent agency

was also enquiring about him with regard to his Company

namely, M/s Dominion Expoventures Pvt. Ltd. during

their search on 11.09.2019. It was submitted that the

petitioner was innocent and had nothing to do with the

aforementioned case/investigation. He was willing to join

the investigation if summons were sent to him.

6. It was further submitted that the petitioner

apprehended that the respondent would cause physical,

mental and/or verbal harassment to the petitioner as heard

by him from various people who were recently

summoned and detained by the respondent agency.

7. Learned Counsel for the petitioner had relied upon

1987(2) SCC 424 ( Nandini Satpathy vs. 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 is 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 2093) 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."

8. It was next submitted by Ld. Counsel that the

maximum punishment that could be imposed under

Section 132 of the CGST Act, 2017 was only an

imprisonment for 5 years, apart from fine and that

therefore, under Section 41 and 41-A of the Code of

Criminal Procedure, after its amendment, a person could

not be arrested so long as such person complied with the

notice for his appearance. It was prayed that the Petitioner

herein was ready and willing to join the investigation as

and when called by the Respondent agency.

9. Ld. Counsel had also relied upon 'Arnesh Kumar

vs. State of Bihar, (2014) 8 SCC 273, wherein it was

held that in criminal cases that are punishable with

imprisonment of not more than seven years, the accused

persons should not be remanded to custody unless the

conditions specified therein are met.

10. It was next submitted in the petition that though the

petitioner had not received any summons to appear from

any of the respondent agency, however, he agrees to

appear before the respondent provided, respondents do

not cause any physical, mental or verbal harassment to the

petitioner during pendency of the investigation. It was

further submitted that the respondent was already in

possession of all the documents relating to the petitioner's

company and therefore, the respondent 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 arrest was wholly

unnecessary.

11. It was next submitted that petitioner was ready to

submit himself to any condition/conditions, which the

Court might impose to allay the fear of the respondent, of

any kind of likely absence from the trial or investigation.

12. It was lastly submitted that the petitioner fears for

his life, health and safety and apprehends, that the

respondent may cause physical, mental and/or verbal

harassment to the petitioner during pendency of the

investigation and prayed that protection in the event of

receiving summons from the respondent authority may be

granted and respondent be directed to interrogate the

Petitioner in presence of his lawyer/attorney as laid down

by Hon'ble Supreme Court in „Nandini Satpathy Vs.

Dani and Anr.(1978) 2 SCC 424‟.

13. I have heard the rival submissions and given my

thoughts to the matter.

14. The petition was first listed for hearing on

22.09.2019 when the Ld. Counsel for the respondent had

accepted the notice and submitted that respondent is duty

bound to follow the mandate of Hon'ble Supreme Court

laid down in 'Nandini Satpathy vs Dani (P.L.) and Anr,

(1978) 2 SCC 424‟. It was, however, submitted that the

petitioner is required to join the investigation and

cooperate in the investigation. It was agreed at that time

that the petitioner would join the investigation as and

when required. However, later on the instant application

was moved by the Ld. Counsel for the respondent seeking

modification of the said order on the ground that the

investigation against the petitioner is in respect of

fraudulent availment of Input Tax Credit of GST under

the cover of fake invoices. It was submitted that this

Court had disposed of the petition and allowed the prayer

of the petitioner seeking presence of an advocate at the

time of recording of statement by the respondent in view

of the judgment in Nandini Satpathy‟s case (Supra).

However, the facts of the said case are completely

different from the present case in as much as GST officers

are not police officers and the offence committed is also

completely different and, therefore, Nandini Satpathy‟s

case (Supra) case cannot be relied upon in this matter.

15. At this juncture, it may be clarified that order dated

22.09.2015 was passed by this court on the assurance

given by the Ld. Counsel for the respondent that Nandini

Satpathy‟s case (supra) case would be followed by the

respondent and on this assurance, the petition was

disposed of.

16. The Ld. Counsel for the respondent has now sought

amendment in the order submitting that there is a

subsequent judgment passed by Hon'ble Supreme Court

in a case titled „Pool Pandi vs. Superintendent, Central

Excise and Ors. 1992 AIR 1795 (SC)‟, in which the

Hon‟ble Court has noticed and distinguished the judgment

of Nandini Satpathy‟s case (Supra) case and has refused

to allow the presence of a lawyer during questioning

under Customs Act and the relevant para runs as under;

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 arguement 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).

17. Ld. Counsel for the respondent has submitted that

in the above case, the Hon'ble Supreme Court has

rejected the prayer of the petitioner seeking presence of a

lawyer during investigation. It was next submitted that

petitioner in the present case does not have clean

antecedents also. Presently he is on conditional interim

bail granted vide order dated 24.05.2019 by the concerned

Ld. Trial Court in a case which is being investigated by

DRI and this fact has been concealed from this court.

18. 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 dated 20.09.2019 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.

19. Ld. Counsel for the petitioner has, however,

opposed the above submission and submitted that the

order dated 20.09.2019 passed by this court is in

accordance with law. There are no grounds to modify the

same. 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.

20. I have considered the rival submissions. The

Hon'ble Supreme Court in Pool Pandi‟s judgment

(Supra), has categorically stated that presence of a lawyer

cannot be allowed during examination/ interrogation by a

Customs Officer. It was held that relevant provisions of

the Constitution in this regard have to be construed in the

spirit in which they were made and benefit thereunder

should not be extended to exploiters engaged in Tax

Evasion at the cost of public exchequer. The submission

of the petitioner regarding presence of lawyer in the

interrogation was, therefore, declined by the Hon'ble

Supreme Court. High Court of Delhi in a case titled

"Sudhir Gulati vs. UOI, 1998 (100) E.LT. 344 (Del)"

has also categorically held that assistance of lawyer

cannot be allowed while examination of a person in the

Customs Office. It was held as under;

10. In view of the aforesaid discussion, we are of the view that the petitioner is accused of an offence in respect of the FIR noticed hereinbefore within the meaning of Article 20(3) and cannot be compelled to be a witness against himself. But the scope of offence under the aforesaid FIR and scope of enquiry under Customs Act, 1962 is different. An enquiry under Customs Act primarily relates to the smuggling of goods. Section 108 confers

upon a Gazetted officer of the Customs the powers to summon any person whose attendance he considers necessary to give evidence or to produce a document or any other thing in any enquiry which such officer is making in connection with the smuggling of goods. The person so summoned is bound to attend and to state the truth upon any subject respecting which he is examined or makes statements and produce such documents and other things as may be required. Therefore, the impugned summons cannot be set aside. The petitioner is required to appear and answer such questions and give such information regarding himself which do not tend to incriminate him. In our view the petitioner is also not entitled to assistance of a lawyer at the time of recording of his statement under Section 108 of the Customs Act. (emphasis supplied)

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