Delhi High Court
Amit Joshi vs Commissioner Of Central Excise & ... on 20 March, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment dated: 20.03.2020
+ W.P.(CRL) 766/2020 & CRL. M.A. 5730/2020
AMIT JOSHI
..... Petitioner
Through: Mr. Ramakant Gaur, Mr.
Rakesh Chitkara, Ms. Sneha
Arya, Ms. Shubhakriti Gaur,
Ms. Prerna Agarwal & Ms.
Harshi Gaur, Advocates.
versus
COMMISSIONER OF CEST & ST, CGST (EAST) & ANR.
..... Respondents
Through: Mr. Harpreet Singh, Sr.
Standing Counsel with Ms.
Suhani Mathur & Ankit
Singh.
HON'BLE MR. JUSTICE BRIJESH SETHI
JUDGMENT
BRIJESH SETHI, J (ORAL)
W.P.(CRL) 766/2020
1. This is a petition filed by the petitioner under Article 226 of
the Constitution of India for issuance of the writ to safeguard the
right to life, liberty, dignity & fair investigation and to examine the
illegal acts of the CGST officials and to monitor the investigation of
the case.
Signature Not Verified
By:PRADEEP SHARMA
Signing Date:18.08.2020
15:54:08
2. Ld. Counsel for the petitioner has prayed that records of the
investigation be called from the office of the respondents and the
court should examine the same on the touchstone of the law relating
to the fair investigation. He has further prayed that Court should
monitor the investigation of the case till the issuance of Show Cause
Notice and/ or till the filing of complaint and further direct the
respondents to give bi-monthly reports to this Court about the
progress of the investigation.
3. Notice.
4. Ld. Sr. Standing counsel for respondents accepts notice on
behalf of respondents and seeks time to file status report.
5. Let the status report be filed two days before the next date of
hearing i.e. 18.05.2020.
CRL. M.A. 5730/2020
1. An interim application has also been filed for issuance of
direction to the respondents to conduct the investigation without use
of any coercive means along with video recording of the statements
of the applicant and to allow the presence of the Lawyer at visible
yet inaudible distance of the applicant.
Signature Not Verified
By:PRADEEP SHARMA
Signing Date:18.08.2020
15:54:08
2. Ld. Sr. Standing counsel for the respondents seeks time to file
reply to the said application. However, Ld. Counsel for the
petitioner insists for immediate issuance of directions to the
respondents.
3. Ld. Counsel for the petitioner has submitted that applicant
was picked up on 07.03.2020 and was kept in illegal detention for
three consecutive days. He has been beaten ruthlessly and was
coerced to write incriminating statement. It is submitted that
investigation by the respondents is not being conducted in
accordance with law. He has, therefore, prayed that the presence of
the Advocate be allowed at a visible yet inaudible distance of the
applicant.
4. Ld. Sr. Standing counsel for the respondents has submitted
that investigation is being conducted as per law. The petitioner is
not subjected to any torture during the interrogation. So far as
submission of Ld. Counsel for the petitioner regarding presence of
lawyer at the time of interrogation is concerned, he has relied upon
the judgment titled 'Pool Pandi vs. Superintendent, Central
Excise and Ors. 1992 AIR 1795 (SC)' as well as judgment of this
Signature Not Verified
By:PRADEEP SHARMA
Signing Date:18.08.2020
15:54:08
Court titled 'Sudhir Kumar Aggarwal vs. Directorate General of
GST Intelligence, W.P. (Crl.) 2686/2019' dt. 06.11.19.
5. I have considered the rival submissions. Ld. Counsel for the
petitioner has relied upon the judgment of Hon'ble Supreme Court
titled 'Senior Intelligence Officer vs. Jugal Kishore Samra, Crl.
Appl No. 1266/2011 (Arising out of SLP (Crl.) No. 628/2008)
decided on 05.07.2011. I have gone through the said judgment. It
was passed because of special facts and circumstances of the said
case as respondent i.e. accused Jugal Kishore Samra was suffering
from heart disease and his medical condition was considered by the
Ld. Sessions Judge while passing the order. The said case is, thus,
distinguishable on the basis of facts and circumstances stated
therein. The Hon'ble Supreme Court in a case titled 'Pool Pandi vs.
Superintendent, Central Excise and Ors. 1992 AIR 1795 (SC)',
has categorically held that presence of a lawyer cannot be allowed
during questioning under Customs Act and the relevant para runs as
follows;
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
Signature Not Verified
By:PRADEEP SHARMA
Signing Date:18.08.2020
15:54:08
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).
Signature Not Verified
By:PRADEEP SHARMA
Signing Date:18.08.2020
15:54:08
6. Thus, the Hon'ble Supreme Court in Pool Pandi's judgment
(Supra), has categorically held 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.
7. 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
Signature Not Verified
By:PRADEEP SHARMA
Signing Date:18.08.2020
15:54:08
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.
8. The Ld. Sr. Standing Counsel for the respondents on the other
hand has categorically stated at Bar that interrogation/ investigation
of the petitioner would be conducted as per law and the respondents
will not adopt any such method which is not permissible by law.
9. In view of the above submission made by the Ld. Sr. Standing
Counsel for the respondents and also in view of the judgment of
Hon'ble Supreme Court in Pool Pandi's case (Supra), no grounds
are made out to allow the presence of the Advocate while
questioning or examination by the officers of the respondents. The
present application is, therefore, dismissed and stands disposed of
accordingly.
BRIJESH SETHI, J.
March, 20, 2020/ (Amit)
Signature Not Verified
By:PRADEEP SHARMA
Signing Date:18.08.2020
15:54:08
