Criminal Writ Petn. No. 306 of 1996. Case: Satyanarayan and others Vs The Chief Enforcement Officer Enforcement Directorate Bombay and others. High Court of Bombay (India)
| Case Number | Criminal Writ Petn. No. 306 of 1996 |
| Counsel | For Petitioners: S. A. Bobde, M. V. Samarth and Miss. Basuri Datta, Advs. and For Respondents: M. G. and V. V. Bhangde, Advs. and V. V. Naik, 'A' Panel Counsel |
| Judges | L. Manoharan, J. and G. D. Patil, J. |
| Issue | Foreign Exchange Regulation Act (46 of 1973) - Section 40 |
| Citation | 1998 CriLJ 1535 |
| Judgement Date | October 10, 1997 |
| Court | High Court of Bombay (India) |
Judgment:
L. Manoharan, J.
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The petitioners seek for the issuance of a direction to the respondents to permit them to be accompanied by a lawyer whenever they are summoned for interrogation; to allow petitioner No. 1 to represent the other members of his family; permit an advocate of their choice to remain present during investigation, interrogation or examination and direct the respondents to interrogate the petitioners only during office hours, that too after giving them reasonable notice of at least 48 hours. The petitioners alleged that one Shri Vinod Goel, a non-resident Indian, made gifts of amounts mentioned in para 4 of the petition in their favour and they learnt that Directorate of Enforcement has started enquiry into the said payments made by Shri Vinod Goel to other persons. Therefore, the petitioners reasonably apprehend that similar proceedings would be initiated against them.
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Pending this petition, the petitioners moved for interim direction and this Court on 11-2-1997 passed an order stating that it is open for the petitioners to make appropriate application before the authority seeking permission for the presence or company of an advocate of their choice at the time of interrogation. Pursuant to the said direction, they moved the appropriate authority by Annexure-I application which was disposed of by the authority by the order Annexure-II. Later the writ petition came to be amended by which the petitioners incorporated fresh allegations and also prayer clause (iii-a) seeking to quash and set aside the order at Annexure-II. The petitioners had also moved Crim. Appln. No. 132/97 for appropriate orders.
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On behalf of respondents, reply was filed to the aforesaid application and additional reply to the amended writ petition. The learned counsel for the respondents sought permission to treat the reply to the application for appropriate orders as reply to the writ petition. Learned counsel, Shri Bobde, for the petitioners maintained that as per S. 40(3) of the Foreign Echange Regulation Act, 1973 (for short the Act), a person who is summoned by the authority is entitled to have the presence of lawyer at the time of his interrogation. According to the learned counsel the very wording of the section would show that when a prayer is made by the person who is summoned under the said provision for permitting the assistance of a lawyer or any authoritised agent of his choice, at the time of his interrogation, that has to be considered and, according to the learned counsel, since S. 40(3) of the Act confers a discretion on the authority, a duty is cast upon to him to exercise the said discretion adhering to the principles of natural justice. It is also the case of the learned counsel that any ambiguity or doubt as to the meaning of the provision in the said section has to be resolved in favour of the citizen.
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On the other hand, learned counsel Shri Bhangde, on behalf of respondents, maintained that a person who is summoned under S. 40 of the Act being only a suspect or a person having information on the subject, has no such right as maintained by the petitioners and the learned counsel urged that principles of natural justice are not applicable in such situation. It would be open for the authority on questioning the summoned person to summon such other persons whom the authority may consider necessary to question for the purpose of the investigation; and the same in no way would give a right to the person summoned to insist that in his place somebody else must be questioned. At any rate, according to the learned counsel, a lawyer cannot be held to be an authorised agent within the meaning of S. 40 of the Act. Para 9 of the petition contains the case of the petitioner wherein petitioner states:
..........However, S. 40(3) of the Act provides that the person so summoned may attend either in person or by authorised agent before the authorised officer. The petitioners submit that the provision under S. 40 of the FER Act is in confirmity with the guarantee as enshrined under Art. 21 of the Constitution of India. That no citizen can be deprived of his life and personal liberty except according to procedure established by law. That S. 40 of the FER Act provides that a person ought to be examined by the officer of the Directorate could appear personally or through an authorised agent. In this view of the matter the petitioner submits that the petitioners may be permitted to be accompanied by a lawyer or a person of their choice when they are being examined or interrogated.
In the context of the rival contentions, it becomes necessary to read s. 40 of the Act which reads:
40. Power to summon persons to give evidence and produce documents -
(1) Any gazetted officer of Enforcement shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce document during the course of any investigation or proceeding under this Act.
(2) A summons to produce documents may be for the production of certain specified documents or for the production of all documents of a certain description in the possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by authorised agents, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents as may be required:
Provided that the exemption under S. 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section.
(4) Every such investigation or proceeding as aforesaid shall be deemed to be a judicial proceeding within the meaning of S. 193 and 228 of the Indian Indian Penal Code (45 of 1860).
(Emphasis supplied)
The emphasis in sub-sec. (3) of S. 40 of the Act is inescapable which is to the effect that the choice whether the person summoned should attend in person or by an authorised agent vests with the officer. A literal interpretation of this section thus admits of no doubt...
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