Summons Under Central Excise/Customs/Service Tax/NDPS - Presence of Lawyer - Not a Right - SC
DDT 1115 had commented;
In the famous Nandini Satpathy case, the Supreme Court held that if an accused person expresses his wish to have his lawyer during examination, this facility should not be denied. It is this case that many lawyers rely on, while insisting on their right to be present when their clients are summoned to give evidence before a Central Excise Officer. But it is often (conveniently) forgotten that the Nandini Satpathy case is not relevant to Central Excise & Customs matters.
In Romesh Chandra Mehta V. State of West Bengal, the Supreme Court held that a person who was asked to give evidence under the Sea Customs act is not an accused. In Ilias V. Collector of Customs, Madras, the Supreme Court held that a statement made to a Customs Officer is not hit by Section 25 of the Evidence Act since Customs Officers are not Police Officers (Section 25 of the Evidence Act states “No confession made to a Police Officer shall be proved as against a person accused of any offence.”) Thus the ratio of Nandini Satpathy case is applicable to an accused before a Police Officer, and not to a person summoned under the Central Excise Act or Customs Act, because the person summoned is not an accused and the officer summoning is not a Police Officer.
The view was emphatically reiterated by the Supreme Court in Poolpandi V. Superintendent of Central Excise () where it was pointed out that the first case was one in which an accused was entitled to protection under Article 20(3) and the Officers were Policemen, whereas in a case under the Customs Act, the person does not become an accused during the enquiry stage, nor are Customs Officials police Officers.
Thus the position is very clear that a person summoned before a Central Excise/Customs/Service Tax Officer does NOT have the right to be accompanied by an Advocate.
Yesterday, the Supreme Court delivered another landmark judgement once again not accepting Nandini Satpathy and following Poolpandi.
However there was a slight difference in this case; the summoned person accused the DRI of torture and he had suffered a heart attack. So the Supreme Court allowed the presence of an advocate or an authorized person, but the advocate may watch the proceedings from a distance or from beyond a glass partition but he will not be within the hearing distance and it will not be open to the respondent to have consultations with him in course of the interrogation.
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We bring you today this important judgement delivered yesterday.