Presence of lawyers during interrogation must be allowed: HC

The Bombay high court has ordered the Directorate of Revenue Intelligence to allow two applicants, involved in importing chemicals, to have the presence of a lawyer at a visible but not audible distance during interrogation. The court held that persons summoned by investigation agencies cannot seek the presence of a lawyer during interrogation as a matter of right, but the supreme court has issued guidelines permitting it. The duo had been summoned by the DRI after the customs department seized some goods from their premises but had refused the presence of lawyers and video graphing of the interrogation.

Mumbai: The Directorate of Revenue Intelligence (DRI) has been told by Bombay high court to allow two applicants, to have the presence of a lawyer, at a visible but not audible distance, during interrogation. The order was passed in a petition filed by two persons, who were summoned by the DRI after the customs department seized some goods from their premises. The agency had asked the duo to appear before it, however, it had refused the presence of lawyers and video graphing of the interrogation.

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The high court held that persons summoned by investigation agencies cannot seek the presence of a lawyer during interrogation as a matter of right, but the supreme court has issued guidelines permitting presence of an advocate at a visible but not audible distance.

The division bench of justice Revati Mohite Dere and justice Sharmila Deshmukh which was hearing the petition of the two businessmen, who were involved in importing chemicals, was informed by advocates Sujay and Aishwarya Kantawala that their clients were aggrieved by the refusal to permit the presence of lawyers at the time of interrogation and recording of the statement.

The petition had claimed that on January 18, 2023, the DRI officials had visited the premises of the petitioners and had seized some goods. The petition stated that as the duo were not present, the officials had asked a relative of the businessmen to come to the Mumbai office of the agency.

On February 3, the duo had written to DRI and requested it to issue them summons. The letter also sought permission to allow their lawyer to be present at visible, but not audible distance and videography of the interrogation.

However, deputy director, DRI Vibhor Goyal filed an affidavit through advocate Advait Sethna wherein the bench was informed that as per the Customs Act, the presence of lawyers could be permitted only under exceptional circumstances. Sethna added that both the persons were issued summons on February 1 and 7.

After hearing the submissions and perusing the judgements relied upon by both parties on the issue of permitting or refusing the presence of lawyers at the time of interrogation and recording of statement, the bench noted, “This issue is no longer res integra and has been settled by catena of decisions of the Apex Court as well as by this court.”

In view of an Apex Court order wherein it directed that if the persons summoned under Section 108 of the Customs Act, 1962 wished to have the presence of a lawyer, the authorities had to make a provision for interrogation in the presence of a lawyer. Noting instances when DRI permitted the presence of lawyers the bench said, “the department cannot selectively decide to permit the presence of lawyers.”

“In our opinion, the direction which has been sought by the petitioners as regards to the presence of the lawyer at visible but not audible distance is an aspect of fair investigation and we do not find any reason to take a different view from the view taken by the coordinate benches of this court. We, however, do not deem it fit to grant the relief of video graphing,” the bench noted, while disposing of the petition.