P.Giribabu v. The Deputy Director of Enforcement

2. The averments made in the affidavit filed in support ofthe writ petition in W.P.No.23110 of 2009, in nutshell is set outhere under:(i) The petitioner is a business man and has a jewelleryshop under the name of Sri Vasavi Gold & Bullion (P) Ltd., atN.S.C.Bose Road, Chennai. He is assessed to Sales tax and Income Tax.All of a sudden, the officers of the respondent conducted a search inhis shop on 23.10.2009. They did not recover any document or anyother incriminating material. However, they forcibly took him to theoffice of the Enforcement Directorate at Sastri Bhavan. What happenedat that place was described by him in his communication to therespondent sent by RPAD on 25.10.2009. The advocate of the petitionerwas not permitted to meet him. Though, the petitioner requested therespondent to permit him to appear with a lawyer of his choice, areply dated 27.10.2009 was sent by the respondent, rejecting hisrequest. (ii) Section 37(3) of The Foreign Exchange Management Act,1999 (FEMA) provides that the officers under FEMA shall exercisepowers like the powers conferred on the Income tax authorities underthe Income Tax Act 1961, subject to the limitations contained therein. Section 131 of the Income Tax Act provides that the officersthere on shall have the powers vested in a Court under the Code ofCivil Procedure, 1908 for the purpose of enforcing attendance of anyperson for examining him on oath. Civil Procedure Code in turnrequires to be noted to understand the width of power of examinationof the persons. Order 10 Rule (2) of CPC provides for oralexamination of the party or his pleader to elucidate the issuesinvolved in a suit. Order 16 of the code provides for examination ofwitnesses and issuance of summons thereof. Order 18 provides forrecording of evidence and Rule (2) of Order 18 provides for crossexamination and attendance of witnesses. (iii) Since the same procedure is to be adopted underSection 37 of FEMA also, the persons summoned have to be examined onoath. Section 7 of the Oaths Act, 1969 provides that what is recordedafter administration of Oath is evidence. Income Tax Act providesthat examination by an officer is deemed to be a judicial proceedingsand hence a person is entitled to be represented by an advocate ofhis choice. (iv) FEMA is not a penal enactment but it is only a civilproceedings. Hence, the right to be represented by an advocate flowsas the cross examination of the petitioner is justified as if beforea Court of law. The respondent has no jurisdiction of power to denythe presence of an advocate. The right of a fair procedure is part ofthe requirement of Article 21 of the Constitution of India. It isbeing denied by the respondent by his refusal to allow the presenceof an advocate. https://hcservices.ecourts.gov.in/hcservices/ (v) Thus, making these averments, the petitioner has comeup with the said writ petition. 3. The averments made in the affidavit filed in support ofthe writ petition in W.P.No.23558 of 2009, in nutshell is set outhere under:(i) The petitioner is doing business as real estate dealersand builders. The officers of the respondent functioning under FEMAconducted a search on the business premises on the night of06.10.2009. Large amount of Indian cash was recovered. It was Rs.1.31Crores. The money actually belonged to a partnership firm“Messrs.Venkatesh Property” in which the petitioner is a partner. Itwas kept in the office for the purposes of investment in real estate.The seizure is therefore not justified in the first place. Thestatement recorded from the petitioner is contrary to the above factsand was out of coercion and illtreatment. The officers forcibly tookthe petitioner to their office at Sastri Bhavan and detained himthere continuously and no outside help was provided to him during theentire period. (ii) At the instance of his relatives, an advocate came tothe office of the respondents and wanted to meet the petitioner as hewas entitled to, but he was not permitted. Since, he was illtreated,a letter dated 25.10.2009 was addressed to the respondents requestinghim to permit to appear before him with an advocate of his choice, iffurther summons are issued to him. By communication dated 04.11.2009,the respondent replied that such permission cannot be accorded. Hewas summoned to appear on 17.11.2009. A grave prejudice will becaused to him, if he is not permitted to be accompanied by anAdvocate to be present at the time of interrogation.(iii) Thus, the contentions raised in this writ petitionare similar to the contentions raised in the other writ petitionwhich was extracted above.4. Counter affidavit was filed on behalf of the respondentin W.P.No.23110 of 2009 wherein the following facts have been set out:(i) The respondent issued summons under Section 37 of FEMAread with Section 131 of the IT Act 1961 to the petitioner vide thisOffice letter dated 29.07.2009. After receipt of the above summon,the petitioner appeared before the Assistant Director of EnforcementDirectorate at 2.00 P.M on 23.10.2009 and on the same day he gave astatement giving preliminary details. When further questioned abouthis involvement in the case, the petitioner refused to answer thequestion. After that the Assistant Director issued summons dated27.10.2009 and 04.11.2009. The above two summons were not respondedby the petitioner but the petitioner counsel sent telegrams dated23.10.2009 and 24.10.2009. The request made by the petitioner to https://hcservices.ecourts.gov.in/hcservices/ permit him to be accompanied by an advocate of his choice at the timeof interrogation was denied. (ii) The allegation that the officers of the EnforcementDirectorate, Chennai conducted a search on the petitioner'sestablishment on 23.10.2009 is not true. The officers of theEnforcement Directorate visited the petitioner premises on 23.10.2009and summons under Section 37 of FEMA and Section 131 of the Income-Tax Act was issued by the Assistant Director of Enforcement, Chennaifor the appearance of the petitioner on 23.10.2009. In response, thepetitioner appeared on his own before the said officer. (iii) There is no provision under FEMA, 1999 and Income TaxAct, 1961 to permit the petitioner to appear with a lawyer of hischoice, as the petitioner is called for giving evidence undersummons. A Division Bench of this Court in the judgement reported in(1984) 149 ITR 341 (MAD) – V.Dakshinamurthy v. Assistant Director ofInspection, Income Tax has gone into the depth of this issue whethera lawyer can be present during examination of the witness appearingon summons and held that the witness has no right to take his counselalong with him, at the time when the statement is recorded. (iv) The authorized officers of FEMA are empowered toinvestigate any contravention of the provisions of FEMA, 1999, summonany person and record any statement from them in order to unearth thetruth or otherwise. The purpose of issuing summons to the personconcerned is to make enquiry and record the statements under theprovisions of FEMA. On further investigation, if there appears to bea contravention, the department is at liberty to initiateadjudication proceedings by issuing a show cause notice as requiredunder the FEMA and relevant rules thereunder. During the adjudicationproceedings the petitioner is entitled to have the assistance of anAdvocate or a Chartered Accountant of his own choice to defend him.The petitioner in his voluntary statement given earlier has givenintricate details and the investigation is still at the initialstage. The petitioner has been summoned for further enquiry in thisregard and for completion of the investigation.5. Counter affidavit was filed on behalf of the respondentin W.P.No.23558 of 2009 wherein the following facts have been set out:(i) Specific intelligence was gathered by the officers ofthe enforcement that the petitioner has been receiving huge sums ofmoney and making payments locally on a large scale under instructionsof persons residing in Dubai and Malaysia and also transfer foreignexchange unauthorizedly abroad. He has received huge amount ofRs.1.31 Crores and he was about to deliver the same to persons whowould come from Mumbai to Chennai. Therefore the officers of theEnforcement Department kept surveillance on the activities of thepetitioner. Based on the above specific intelligence and surveillance https://hcservices.ecourts.gov.in/hcservices/ made, the business premises and the residential premises weresearched by the officers of the respondent department. During thecourse of search, the officers have found a box containing Rs.1.30Crores in the denomination of 1000 and 500 rupee notes in the cabinof the petitioner. The officers also found additional amount ofRs.1,31,000/- in addition to incriminating documents, records etc.,When the officers were interrogating, two persons entered thepremises of the petitioner to receive the said amount. (ii) The contention of the petitioner that the amount ofRs.1.31 Crores seized by the Department actually belonged to apartnership firm in which the petitioner is a partner and the samewas kept for the purpose of investment in real estate are totallyfalse and incorrect. The petitioner in response to the summons dated06.10.2009 and 07.10.2009 appeared before the Assistant Director andgave a voluntary statement on oath admitting, interalia that he isthe Managing Director of “M/s.Venkateswara Homes Pvt Ltd” andProprietor of “M/s.Sambhav Investments”. He has also confessed thathe has been receiving and making payments in India as per theinstructions of the persons in Dubai and Malaysia for commission. (iii) The respondent after analyzing the entire documentsand the statement of the petitioner decided to continue furtherinvestigation and hence the petitioner's appearance was necessitatedand therefore the petitioner was issued with summons dated 20.10.2009and 04.11.2009 for his appearance on 26.10.2009 and 17.11.2009. (iv) The other contentions raised are similar to theCounter Affidavit in W.P.No.23110 of 2009.6. I have heard Mr.B.Kumar, the learned Senior Counselappearing for the petitioners and Mr.M.Dhandapani, the learnedSpecial Counsel appearing for the respondent.7.1. The first and foremost submission made by the learnedSenior Counsel appearing for the petitioners is that Section 37(1) ofFEMA contemplates power to search, by the Director of Enforcement andother officers of Enforcement.Section 37(3) contemplates that the officers referred tounder Sub-Section 1 shall exercise like powers which are conferred onthe Income Tax authorities under the Income Tax Act, 1961.Section 131 of the Income Tax Act contemplates that theofficers concerned shall for the purpose of that Act, shall have thepowers as are vested in a Court under Civil Procedure Code, 1908,when trying a suit in respect of the matters enumerated thereunder.One such power enumerated under Section 131(B) namely, “Enforcingattendance of any person including an officer of a bankinginstitution and examining him on oath.” Thus, according to the https://hcservices.ecourts.gov.in/hcservices/ learned Senior Counsel appearing for the petitioners, the officer whorecords the statement under Section 37 of FEMA is a Civil Court andhence the Advocates can appear before the authorities under FEMA.7.2. On the other hand, it was contended by the learnedSpecial Counsel appearing for the Enforcement Department that forcollecting material and gathering facts, statement was obtained fromthe petitioners. Thus the officials of the respondent was collectingmaterials to investigate the matter further at this stage.Thereafter, if the officials of the respondent are not satisfied withthe statement of the petitioners, before adjudication, show causenotice will be caused to the petitioners. Even at the preliminarystage, the petitioner cannot request for assistance of an Advocate. 7.3. Before adverting to the said contentions raised by thelearned Senior Counsel appearing for the petitioners and the learnedSpecial Counsel appearing for the Enforcement Department, it would bemore appropriate to reproduce Section 37 of FEMA as well as Section131(1) of the Income Tax Act.Section 37 of FEMA“37. Power of search, seizure, etc.-(1) The Director ofEnforcement and other officers of Enforcement, not below therank of an Assistant Director, shall take up forinvestigation the contravention referred to in section 13.(2) Without prejudice to the provisions of sub-section (1), the Central Government may also, bynotification, authorise any officer or class of officers inthe Central Government, State Government or the ReserveBank, not below the rank of an Under Secretary to theGovernment of India to investigate any contraventionreferred to in section 13.(3) The officers referred to in sub-section (1)shall exercise the like powers which are conferred onincome-tax authorities under the Income-tax Act, 1961 (43 of1961) and shall exercise such powers, subject to suchlimitations laid down under the Act.”Section 131(1) of the Income Tax Act“Power regarding discovery, production of evidence,etc.131 (1) The Assessing Officer, Deputy Commissioner(Appeals), Joint Commissioner, Commissioner (Appeals) andChief Commissioner or Commissioner shall, for the purposesof this Act, have the same powers as are vested in a court https://hcservices.ecourts.gov.in/hcservices/ under the Code of Civil Procedure, 1908 (5 of 1908), whentrying a suit in respect of the following matters, namely :-(a) discovery and inspection;(b) enforcing the attendance of any person, includingany officer of a banking company and examining him on oath;(c) compelling the production of books of account andother documents; and(d) issuing commissions.”7.4. Section 37(3) of FEMA, no doubt contemplates that theofficer who are entrusted with the power to search shall exerciselike powers which are conferred on the Income Tax Authorities underthe Income Tax Act, 1961 and shall exercise such powers subject tolimitations laid down under the Act. Section 131 of the Income TaxAct confers the same power for the authorities as are vested in aCourt under Civil Procedural Code.7.5. It has been asserted in the Counter Affidavit, thatthe purpose of issuing summons to the petitioners are to make anenquiry and record the statements. On further investigation, if thereappears to be a contravention, the department would be at the libertyto initiate Adjudication proceedings as required under FEMA andrelevant rules therein. During the adjudication proceedings, thepetitioner is entitled to have an Advocate or Chartered Accountant ofhis choice to defend him. It has been further stated in the CounterAffidavit that the investigation is still at the initial stage andthe petitioners have been summoned for further enquiry in that regardand for completion of the investigation. 7.6. The question that arises for consideration is whetherat the stage of preliminary investigation, can the petitioners seekthe assistance of a lawyer. 7.7. When collecting materials to take further action, theofficers of FEMA does not act as a Court. Whether, the petitionerswill be treated as accused of contravention of the provisions of FEMAor whether they would be treated as witness would be decided afterpreliminary enquiry or investigation by the authorities concerned.Even at the initial stage itself, before the adjudicating authoritiescomes to a conclusion to proceed further or not, there need be noassistance to the petitioners either by an Advocate or by a CharteredAccountant. The said view was taken by the Division Bench of thisCourt which is reported in (1984) 149 ITR 341 (MAD) –V.Dakshinamurthy v. Assistant Director of Inspection, Income Tax. Theobservations made by the Division Bench is usefully extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ “The question thus to be considered is whether thescope of the enquiry under the I.T.Act is the same as it wasbefore the civil court in passing the decree. The civilcourt adjudicated, though in a summary way, on the claim ofthe depositors in the present case, based on the promissorynotes executed in their favour. The ITO in makinginvestigation in the case of the Federation was seeking tofind out the person to whom the money belongs. In otherwords, he wanted to find out whether there was any incomeearned by the Federation, which took its shape as depositsin the names of these persons, who had obtained decrees. Asthe scope of the enquiry under the I.T. Act is whollydifferent from that before a civil court, it is not possibleto accept the submission that the ITO in making theenquiries was acting in any manner contrary to the findingsof the civil court. Any action taken by the ITO is notlikely to set at naught these decrees if they otherwiseremained unchallenged in accordance with the provisions ofthe Code of Civil Procedure in the appropriate forum. As thescope of the enquiries by the civil court and by the ITO aredifferent, the principle of this decision cannot be appliedto the facts herein.”“We agree with this statement of principle by thelearned judge. We hold that a witness has no right to takehis counsel along at the time when his statement isrecorded.”“It is thus manifest that there is great latitudeallowed to the ITO in the collection of materials and hedoes not act as a court at that stage. There are no twoparties before him, and the procedure in the adversarysystem of proceedings cannot be applied to him. However, theITO, before he uses the materials so collected, is bound togive the necessary opportunity to the assessee to test theevidence, to adduce any evidence in rebuttal and to explainthe facts that appear against him. Thus, it is clear thatthe ITO cannot be asked to put on, or be thrust with, thegarb of a court, even at the stage of collection ofevidence.”“The ITO is a tribunal of a kind. He is duly appointedunder the I.T. Act to discharge the powers and functionswhich are well-defined by the statute. His principle job isto make an assessment of the income and levy income-tax onthe basis of his determination. For the purpose ofdischarging these functions, he is invested with the powerto gather information, material evidence, and the like. Aspecific power is conferred on him to summon witnesses,enforce their attendance, issue commissions and the like. In https://hcservices.ecourts.gov.in/hcservices/ this respect, his powers are co-equal with those of courtsof law under the Civil Procedure Code. He is held to be atribunal within the meaning of section 135(2) of the Code ofCivil Procedure, and witnesses who have to appear before himare protected from arrest. He is also a court for purposesof the Criminal Procedure Code. In these circumstances, theITO, in his own sphere, is a tribunal of plenaryjurisdiction subject to no other control and limitationssave those which are enacted in the income-tax code. Itstands to reason, therefore, that the investigations andinquiries launched by him are not subject to thejurisdiction of ordinary courts. Indeed, there is a specificprovision in the I.T. Act which forbids courts of law frominterfering with the ITO's jurisdiction to assess:videsection 293.”7.8. Thus, considering the overall aspects of the judgementcited above, I am of the considered view that the petitioners have noright to take their counsels along with them at the time when theirstatement is recorded by the respondent or his officials.8.1. Secondly, it was contended by the learned SeniorCounsel appearing for the petitioners that Section 3 of the OathsAct, 1969 enables administration of Oath. However, the respondent hasnot administered the oath as required under the said Act. Beforeadverting to the said contention, Section 3 of the Act is usefullyreproduced here under:“3. Power to administer oaths.-(1) The following Courtsand persons shall have power to administer, by themselvesor, subject to the provisions of sub-section (2) of section6, by an officer empowered by them in this behalf, oaths andaffirmations in discharge of the duties imposed or inexercise of the powers conferred upon them by law, namely:-(a) all Courts and persons having by law orconsent of parties authority to receive evidence;(b) the commanding officer of any military, naval,or air force station or ship occupied by the Armed Forces ofthe Union, provided that the oath or affirmation isadministered within the limits of the station. (2) Without prejudice to the powers conferred by sub-section (1) or by or under any other law for the time beingin force, any Court, Judge, Magistrate or person mayadminister oaths and affirmations for the purpose ofaffidavits, if empowered in this behalf- https://hcservices.ecourts.gov.in/hcservices/ (a) by the High Court, in respect of affidavitsfor the purpose of judicial proceedings; or(b) by the State Government, in respect of otheraffidavits.”8.2. In this connection, the learned Special Counselappearing for the Enforcement Directorate relied on the decisionreported in AIR 1971 Supreme Court 44, H.H.Advani v. State ofMaharashtra. One of the question that came in for considerationbefore the Hon'ble Apex Court in the said decision was about theadmissibility of the statements made to the officer under Section 171A of the Sea Customs Act. Para 33, 34, 35 of the judgement isusefully extracted here under:“33. In our view if the Legislature intended that theinquiry under Section 171-A was to be considered a judicialproceeding not within the narrow limits therein specifiedbut generally, it could have used suitable words to expressits intention. Although, this Court gave a wider meaning tothe expression 'judicial proceeding' in Lalji Haridas'scase, (1964) 6 SCR 700 = (AIR 1964 SC 1154) (supra) there isnothing in that judgement to warrant a still widerinterpretation of that definition. 34. Mr.Jethmalani referred to the provisions in theIndian Oaths Act (X of 1873) and on the basis of hisargument that the statements under Section 171-A (4) weremade on oath contended that the proceeding became a judicialproceeding in the wider sense of the word. In our view theOaths Act has no application here. The preamble to the Actshows that it was an Act to consolidate the law relating tojudicial oaths, affirmations and declarations and wasenacted because the Legislature though it “expedient toconsolidate the law relating to judicial oaths, affirmationsand declarations and to repeal the law relating to officialoaths, affirmations and declarations.” Section 4 of the Actprovided that “The following Courts and persons are authorised toadminister, by themselves or by an officer empowered by themin this behalf, oaths and affirmations in discharge of theduties or in exercise of the powers imposed or conferredupon them respectively by law:(a) all Courts and persons having by law or consent ofparties authority to receive evidence.”The relevant portion of the Section 5 runs-- https://hcservices.ecourts.gov.in/hcservices/ “Oaths or affirmations shall be made by the followingpersons:-(a) all witnesses, that is to say, all persons who maylawfully be examined or give, or be required to give,evidence by or before any Court or person having by law orconsent or parties authority to examine such persons and toreceive evidence:”35. Counsel argued that a Customs Officer was a personwho had authority by law to receive evidence within themeaning of Section 4 of the Oaths Act and anybody who couldbe lawfully examined before such a person would be a witnesswithin the meaning of Section 5 and as such it would benecessary to administer oath to them. In our view, theargument proceeds on a complete misconception of theprovisions of the Act. The preamble to the Act shows thatthe oaths referred to are only judicial oaths and Section 7shows that all such oaths had to be administered accordingto such forms as the High Court might prescribe. The CustomsOfficers have nothing to do with such forms and nothing hasbeen shown to us that any such formality was ever compliedwith. Neither do the records show that any oath wasadministered to any person making a statement under Section171-A. In Maqbool Hussain's case, 1953 SCR 730 = (AIR 1953SC 325) (Supra) this Court stated expressly that the CustomsOfficers were not authorised to administer oath and theposition according to us is not altered by the insertion ofSection 171-A in 1955.”8.3. Considering the above judgement complied with the factthat the respondent is investigating the matter which is at thepreliminary stage, I am of the considered view that the question ofadministering oath does not arise for consideration at all. 9.1. The next contention of the learned Senior Counselappearing for the petitioner is that the Advocates right flows fromthe Advocates Act, 1961. Section 30 of the Act contemplates therights of advocates to practice. While so, denying permission to thepetitioners to have an advocate of their choice at the time of takingstatement from the petitioner is untenable. Before adverting to thesaid contention of the learned Senior Counsel appearing for thepetitioner, it would be desirable to extract Section 30 of theAdvocates Act, 1961.“30. Rights of advocates to practise.- Subject toprovisions of this Act, every advocate whose name is enteredin the State roll shall be entitled as of right to practisethroughout the territories to which this Act extends- https://hcservices.ecourts.gov.in/hcservices/ (i) in all Courts including the Supreme Court;(ii) before any tribunal or person legallyauthorised to take evidence; and(iii) before any other authority or person beforewhom such advocate is by or under any law for the time beingin force entitled to practise.”9.2. The reading of the above provision makes it clear that“The Advocate is entitled to practice all Courts including SupremeCourt, before the Tribunal or person legally authorised to takeevidence or before any other authority or person. No doubt the saidprovision stipulates that the advocates is entitled to practice,including before the persons legally authorised to take evidence.Further, the respondent is not taking any evidence from thepetitioners and hence the reliance placed on the Advocates Act, 1961may not be of any relevance to the matter in issue in these writpetitions. But however, the Advocates Act, 1961 only speaks aboutthe rights of the Advocates to practice in any Court or authoritiesand it does not speaks about the rights of the parties to engage acounsel before the Supreme Court or any other forum. 9.3. In this connection, the learned Senior Counselappearing for the petitioners relied on the decision reported in AIR1977 Punjab and Haryana 221, Smt.Jaswant Kaur v. State of Haryana.The question that arose before the High Court of Punjab and Haryanawas with regard to the constitutional validity of Section 20-A of theHaryana Ceiling on Land Holdings Act which bars the appearance of anyLegal practitioner before any officer or authority other than theFinancial Commissioner. It was held by the Division Bench thatSection 20-A is repugnant to Section 30 of the Advocates Act andtherefore invalid. It has been held therein that the said Act is acomplicated piece of legislation and it would indeed be difficult forlay persons to understand some of its provisions without expert legalassistance. Under those circumstances, it has been held by theDivision Bench that the need of legal assistance to enable thosepersons to understand the provisions of the Act shall not bedeprived. 9.4. The other judgement that was cited by the learnedSenior Counsel appearing for the petitioners is reported in AIR 1987Supreme Court 1518, H.S.Srinivasa Raghavachar v. State of Karnataka.The prohibitions of the legal practitioners from appearing before theland tribunals under the Karnataka Land Reforms Act came in forconsideration before the Hon'ble Apex Court and the Hon'ble ApexCourt has held the said provision as unconstitutional. https://hcservices.ecourts.gov.in/hcservices/

9.5. The said judgements may not be of any use to thepetitioners, since in the given case on hand, it is only at the stageof preliminary investigation.10.1. The learned Special Counsel appearing for therespondent relied on the decision reported in 1992 (60) E.L.T.24(S.C.)., Poolpandi v. Superintendent, Central Excise. Para 11 of thesaid judgement is usefully extracted here under:“11. We do not find any force in the arguments ofMr.Salve and Mr.Lalit that if a person is called away fromhim own house and questioned in the atmosphere of thecustoms office without the assistance of his lawyer or hisfriends his consitutional right under Article 21 isviolated. The argument proceeds thus: if the person who isused to certain comforts and convenience is asked to comeby himself to the Department for answering questions itamounts to mental torture. We are unable to agree. It istrue that large majority of persons connected with illegaltrade and evasion of taxes and duties are in a position toafford luxuries on lavish scale of which an honest ordinarycitizen of this country cannot dream of and they aresurrounded by persons similarly involved either directly orindirectly in such pursuits. But that cannot be a groundfor holding that he has a constitutional right to claimsimilar luxuries and company of his choice. Mr.Salve wasfair enough not to pursue his argument with reference tothe comfort part, but continued to maintain that theappellant is entitled to the company of his choice duringthe questioning. The purpose of the enquiry under thecustoms Act and the other similar statutes will becompletely frustrated if the whims of the persons inpossession of useful information for the departments areallowed to prevail. For achieving the object of such anenquiry if the appropriate authorities be of the view thatsuch persons should be disassociated from the atmosphereand the company of persons who provide encouragement tothem in adopting a non-cooperative attitude to themachineries of law, there cannot be any legitimateobjection in depriving them of such company. The relevantprovisions of the Constitution in this regard have to beconstrued in the spirit they were made and the benefitsthereunder should not be “expanded” to favour exploitersengaged in tax evasion at the cost of public exchequer.Applying the 'just, fair and reasonable test' we hold thatthere is no merit in the stand of appellant before us.”10.2. Thus, in the case on hand, for collecting materialsand to gather facts, statements were obtained from the petitioners.Thus, collecting material to investigate cannot be construed as an https://hcservices.ecourts.gov.in/hcservices/ evidence taken by the respondent from the petitioners, which requiresthe assistance by an advocate.11. Yet another decision relied on by the learned SpecialCounsel appearing for the respondent is reported in 1999 (113)E.L.T.804 (Mad.) Deputy Director of Enforcement, Madras v.A.M.Ceaser. Para 12 of the said judgement is usefully extracted hereunder:“12. With regard to the observation of the LowerAppellate Court for the handicap faced by the accused inthe absence of an Advocate, the supreme court in Poolpandiv. Superintendent, Central Excise [1992 (60) E.L.T. 24(S.C.) = AIR 1992 S.C. 1795] has considered that when aperson was summoned to appear before the officers underFERA , he cannot be treated as an accused and under suchcircumstances, he is not entitled to the presence of hislawyer when he was examined by the officers. Therefore,refusal to allow the presence of lawyer in such cases,would not be violative of protection under Article 20(3) ofthe constitution. When the Apex Court itself has held soclearly that a person, who was summoned to appear beforethe Enforcement Directorate for interrogation, is notentitled to seek the presence of the Advocate, the LowerAppellate Court cannot make use of this as a circumstancesin favour of the accused to arrive at the conclusion thathis statement could not be voluntary.”12. Yet another decision relied on by the learned SpecialCounsel appearing for the respondent is reported in 2000 (117) E.L.T.4 (Mad.), Kishore J.Chawla v. Union of India. This Court in the saidjudgement has held that person examined under Section 108 of CustomsAct, 1962 is not having a right to have his lawyer at the time ofinterrogation or near to him in the premises.13. Yet another judgement relied on by the learned SpecialCounsel appearing for the Enforcement Directorate, is an unreportedjudgement made in W.P.No.2429 of 2009 dated 24.11.2009. The questionthat came for consideration before this Court was whether the summonsissued by the respondent therein under Section 37 of the FEMA shouldbe interdicted by this Court on the ground that there was noapplication of mind and the documents sought for would amount to aroving enquiry by the Directorate. Para 10 of the said judgement isusefully extracted here under:“10. The Act has deliberately chosen not to apply theconcept of summons used either under the Code of CivilProcedure or under the Code of Criminal Procedure, but haschosen to apply analogous provisions found in the IncomeTax Act. Therefore, while interpreting the scope and width https://hcservices.ecourts.gov.in/hcservices/ of Section 37 of FEMA, one cannot apply the concept ofsummons as available to a Civil Court under the Code ofcivil Procdure, only because the power of a Civil Court wasconferred on the authorities.”14. Yet another judgement relied on by the learned SpecialCounsel appearing for the Enforcement Directorate, is the judgementmade in Crl.O.P.(MD)No.7646 of 2007 dated 11.01.2008. Para 11 of thesaid judgement is usefully extracted here under:“11. The perusal of the eleven conditions wouldclearly demonstrate that all those eleven conditions arerelating to arrestees/detenues. At this juncture, thelearned counsel for the respondent would convincingly putforth his arguments that under pretext ofexamining/interrogating the respondent R.Sundar Raj, hecannot be kept even during night time or for days together,simply labelling him as a mere witness.”15. Thus the decisions relied on by the learned SpecialCounsel appearing for the respondent will amply prove that therequest made by the petitioners to have an assistance of an Advocateat the stage of initial and preliminary investigation by theofficials of the respondent does not sound well.16. Thus, summing up the entire discussions made above, Iam of the considered opinion that the relief sought for by thepetitioners seeking permission to be accompanied by an advocate ofhis choice when he appears before the respondent in pursuant of thesummons issued under Section 37 of The Foreign Exchange ManagementAct, 1999 (FEMA) and recording of statement in the presence of anadvocate who will be present beyond the hearing distance does notrequire any consideration.17. In fine, both the writ petitions are dismissed.Consequently, connected miscellaneous petitions are closed. However,no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarpgp https://hcservices.ecourts.gov.in/hcservices/ To The Deputy Director of Enforcement, Directorate of Enforcement, Shastri Bhavan, 3rd Floor, 26, Haddows Road, Chennai 600 006.+ 1 c.c. to Mr. M. Dhandapani, Special Counselfor Enforcement. S.R.No.20849.+ 1 c.c. to Mr. T. Chezhiyan, Advocate. S.R.No.20849.W.P.Nos.23110 & 23558 of 2009PUR (CO)GSK 05.04.2010.