Facts of the Case

This is a criminal writ petition before the Bombay High Court concerning the procedural right of a person summoned for interrogation under the Customs Act, 1962 to have his advocate present nearby. This is primarily a Customs law matter arising from a Directorate of Revenue Intelligence (DRI) investigation; GST is referenced only because the Court's reasoning also draws on a parallel line of precedent permitting advocates' presence during interrogation under Section 70 of the Maharashtra Goods and Services Tax Act, 2017, by way of analogous authority, and not because the underlying investigation itself concerned GST.

The petitioner, Amit Kumar Sharma, was summoned under Section 108 of the Customs Act after the DRI examined goods imported by his firm and initiated inquiries in September 2022. His premises were searched and documents seized. The petitioner alleged that despite repeatedly requesting, and even personally serving a copy of the Supreme Court's ruling in Vijay Sajnani vs. Union of India (permitting an advocate's presence at a visible-but-not-audible distance during interrogation), DRI officers had refused to allow his advocate to be present, misbehaved with him and his partner, forced him to sit in DRI custody overnight on 27-28 December 2022, and coerced him to write on the summons that he did not require his advocate's presence — conduct he said created a reasonable apprehension of being coerced into self-incriminating statements.

Issues Involved

  1. Whether a person summoned for interrogation under Section 108 of the Customs Act is entitled, as a matter of fair investigation, to have his advocate present at a visible but not audible distance during the recording of his statement.
  2. Whether the petitioner should additionally be permitted to record his voluntary statement in his own handwriting.

Petitioner's Arguments

  • Relying on the Supreme Court's direction in Vijay Sajnani vs. Union of India, the petitioner sought a direction permitting his advocate's presence at a visible but not audible distance during DRI interrogation.
  • Despite repeated written requests following summons dated 2 and 4 November 2022, the DRI did not respond, and on subsequent occasions (27-28 December 2022, 10 and 17 January 2023) the petitioner was allegedly detained for long hours, mistreated, and coerced into waiving his right to counsel's presence.
  • Also sought a direction permitting him to record his voluntary statement in his own handwriting.

Respondent's Arguments

  • The presence of an advocate during interrogation cannot be claimed as a matter of right, relying principally on the Supreme Court's decision in Poolpandi vs. Superintendent, Central Excise, which held that a lawyer's presence cannot be allowed during examination under the Customs Act.
  • Cited a series of decisions from the Delhi, Allahabad, Rajasthan and Calcutta High Courts (including Sudhir Kumar Aggarwal vs. Director General of GST Intelligence, Sandeep Jain vs. Additional Director DRI, Amit Joshi, Saurabh Mittal, Pawan Kumar, and Enforcement Directorate vs. Partha Chatterjee) which had declined to permit an advocate's presence as of right, or held that such relief should be granted only sparingly in exceptional, bona fide cases.

Court Order / Findings

  • The Court held that the Supreme Court's decision in Poolpandi had been distinguished on facts by the Supreme Court itself in Birendra Kumar Pandey vs. Union of India, and that it was bound by Vijay Sajnani, Birendra Kumar Pandey, and a series of co-ordinate Bench decisions of the Bombay High Court (including Kalpesh Ghevarchand Jain vs. Union of India) that had consistently permitted an advocate's presence at a visible but not audible distance during Section 108 interrogations.
  • It noted that the same principle had also been applied by the Bombay High Court in cases involving interrogation under Section 70 of the Maharashtra GST Act, 2017 (Mayur Chavda and Kamlesh Kumar Mishra), reinforcing that this is an aspect of fair investigation generally, not confined to any one statute.
  • The Court held that permitting an advocate's presence at a visible but not audible distance is an aspect of fair investigation, and found no reason to depart from the consistent view of co-ordinate Benches.
  • It allowed the writ petition to the extent of permitting the petitioner's advocate to be present during interrogation at a visible but not audible distance, but declined to permit the petitioner to record his voluntary statement in his own handwriting.
  • The Court clarified that it is the petitioner's responsibility to ensure his lawyer's availability whenever summoned, and non-availability of counsel cannot be a ground to seek exemption from attending interrogation.

Important Clarification

This ruling confirms, following binding Supreme Court and co-ordinate Bench authority, that a person being interrogated under Section 108 of the Customs Act (and analogously under Section 70 of the State GST Act) is entitled to have his advocate present nearby — visible but not within hearing — as part of fair investigation, though this does not amount to a right to have the advocate actively participate in the interrogation, nor a right to record one's own statement. It is essentially a Customs Act procedural ruling, with the GST-interrogation cases cited only as supporting, parallel authority.

Sections Involved

  • Section 108, Customs Act, 1962 — Power to summon persons to give evidence and produce documents
  • Section 70, Maharashtra Goods and Services Tax Act, 2017 — Power to summon persons to give evidence and produce documents (cited as parallel authority)
  • Article 226, Constitution of India — Writ jurisdiction

Decision – In Favour of Petitioner

The Bombay High Court allowed the writ petition in part, directing that the petitioner's advocate be permitted to be present at a visible but not audible distance during his interrogation by the DRI, while declining the additional relief of allowing him to record his statement in his own handwriting.

Case Details

  • Court: High Court of Judicature at Bombay, Criminal Appellate Jurisdiction
  • Case No.: Criminal Writ Petition No. 943 of 2023
  • Coram: Hon'ble Justice Revati Mohite Dere and Hon'ble Justice Sharmila U. Deshmukh
  • Date of Order: 28 April 2023

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