Lalitendra Gulani Vs Mdirector General (Delhi High Court)
Summary: The Delhi High Court disposed of a writ petition after recording that the summons issued under Section 108 of the Customs Act, 1962 to an Advocate, requiring disclosure of a legal opinion rendered to a client on the classification of imported goods, had already been withdrawn by the Revenue. The Court observed that the case concerned the issuance of summons to an Advocate who had rendered a legal opinion and held that, ordinarily, an Advocate ought to be summoned only in rare and exceptional circumstances. As the impugned summons had been withdrawn, the Court held that no further orders were called for and disposed of the writ petition along with the pending applications. The Court further stated that the authorities are expected to exercise due care and caution while issuing summons to Advocates in such matters.
Facts:
- Lalitendra Gulani (“the Petitioner”) is a practising Advocate who, in his professional capacity, rendered a legal opinion to his client on the classification of imported goods.
- The Directorate of Revenue Intelligence (“the Respondent”) issued summons dated July 20, 2026 bearing File No. DRI/BZU/S-IV/ENQ-33/INT-NIL/2025 (“the Impugned Summons”) under Section 108 of the Customs Act, 1962 (“the Customs Act”), requiring the Petitioner to appear before the investigating officer in connection with the legal opinion so rendered.
- Aggrieved, the Petitioner filed a writ petition seeking, inter alia, a writ of certiorari quashing the Impugned Summons as being violative of the Bharatiya Sakshya Adhiniyam, 2023 (“the BSA”) and the Constitution of India; a writ of prohibition restraining the Respondent from taking any coercive step in furtherance of the Impugned Summons or compelling him, in his professional capacity as an Advocate, to disclose any privileged communication; and a writ of mandamus directing the Respondent to frame appropriate guidelines/circular prescribing the procedure, level of approval and safeguards to be followed prior to issuance of summons to an Advocate for disclosure of legal opinions or professional communications rendered to a client.
- The Petitioner contended that the legal opinion had been rendered purely in a professional capacity and constituted privileged communication protected under Section 132 of the BSA, and that compelling its disclosure would strike at the very root of the Advocate-client relationship and the independence of the legal profession.
- The Petitioner further contended that the reliefs sought were consistent with the law declared by the Hon’ble Supreme Court in Suo Motu Writ Petition (Criminal) No. 2 of 2025.
- During the course of hearing, learned counsel for the Respondent submitted that the Impugned Summons had already been withdrawn and that the writ petition had, therefore, been rendered infructuous.
Issue:
- Whether an Advocate can be summoned under Section 108 of the Customs Act to disclose a legal opinion rendered to a client in his professional capacity, when such communication is protected as privileged communication under Section 132 of the BSA.
Held:
The Hon’ble Delhi High Court in W.P.(C) No. 10075 of 2026 held as under:
- Observed that, the case concerns the issuance of summons under Section 108 of the Customs Act to an Advocate who had rendered a legal opinion.
- Noted that, the Respondent had submitted that the Impugned Summons dated July 20, 2026 had already been withdrawn, rendering the writ petition infructuous.
- Held that, “Ordinarily, an Advocate ought to be summoned only in rare and exceptional circumstances.”
- Held that, since the Impugned Summons had already been withdrawn, no further orders were called for in the matter.
- Directed that, the authorities are expected to exercise due care and caution while issuing summons to Advocates in such matters.
- Accordingly, disposed of the writ petition along with the pending applications.
Our Comments:
Section 108 of the Customs Act empowers a gazetted officer of customs to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry, and every such inquiry is deemed to be a judicial proceeding. The corresponding provision in the GST regime is Section 70 of the Central Goods and Services Tax Act, 2017 (“the CGST Act”), which is pari materia and empowers the proper officer to summon any person whose attendance he considers necessary either to give evidence or to produce a document, with such inquiry likewise deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code, 1860 (now Sections 229 and 267 of the Bharatiya Nyaya Sanhita, 2023). Both provisions confer a power of investigation – not a licence to breach a statutorily protected confidence.
The countervailing protection flows from Section 132 of the BSA (corresponding to erstwhile Section 126 of the Indian Evidence Act, 1872), which prohibits an Advocate from disclosing any communication made to him in the course and for the purpose of his employment, or the contents or condition of any document with which he has become acquainted in that course, or any advice given by him to his client. The privilege is that of the client, and the Advocate is under a corresponding obligation of non-disclosure which he may assert even in the absence of the client. The proviso carves out only three narrow exceptions, namely (i) express consent of the client, (ii) communication made in furtherance of an illegal purpose, and (iii) any fact observed in the course of employment showing that a crime or fraud has been committed since the commencement of the employment. Section 134 of the BSA extends allied protection to confidential communications with legal advisers.
The observation of the Hon’ble Delhi High Court is squarely in line with, and draws sustenance from, the law laid down by the Hon’ble Supreme Court in In Re: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues [Suo Motu Writ Petition (Criminal) No. 2 of 2025 dated October 31, 2025], wherein the Hon’ble Apex Court held that an investigating agency cannot directly summon an Advocate to elicit details of the case unless the matter falls within an exception under Section 132 of the BSA; that the summons must explicitly specify the facts on which the exception is founded; that it must carry the prior written satisfaction of a superior officer not below the rank of Superintendent of Police; and that such summons is amenable to judicial review. Significantly, the Hon’ble Apex Court also clarified that the privilege is not confined to an engagement in a pending suit or prosecution but extends equally to a standalone legal opinion taken sporadically or under a retainership – which is precisely the fact pattern in the present case, where the Advocate had merely opined on classification of imported goods.
A closely analogous GST precedent is the decision of the Hon’ble Delhi High Court in Puneet Batra v. Union of India & Ors. [W.P.(C) No. 11021 of 2025 dated September 09, 2025], where the Anti-Evasion Branch, CGST Delhi East, searched the office of an Advocate and seized his Central Processing Unit in connection with an investigation against his erstwhile client, and thereafter issued summons to him. The Hon’ble High Court held that an Advocate cannot be subjected to harassment in this manner unless the Department is able to show some prima facie material demonstrating that the Advocate is not merely representing his client but is himself personally involved in the alleged illegality; that documents handed over by a client to an Advocate are protected by attorney-client privilege; and that the seized device, which may contain data of other clients, shall not be opened or its contents downloaded except in the presence of the Advocate or his authorised representative. The Hon’ble High Court also cautioned that, save in exceptional circumstances, the search of an Advocate’s office or the opening of his computer ought to take place in his presence, and stayed the operation of the summons.
It is also relevant to note that CBIC has itself, vide Instruction No. 03/2022-23 [GST-Investigation] dated August 17, 2022, mandated that the power of summons under Section 70 of the CGST Act must be exercised judiciously and with due consideration, that summons should be issued as a last resort where a simple letter requisitioning information would suffice, that prior written permission of an officer not below the rank of Deputy/Assistant Commissioner is required, and that senior functionaries such as the CMD, MD, CEO and CFO ought not to be summoned in the first instance. The same discipline of restraint applies with even greater force where the summoned person is an Advocate whose only nexus with the investigation is the professional advice tendered to the assessee. Comparable internal safeguards were also introduced by the Directorate of Enforcement after summons issued to two Senior Advocates were withdrawn, mandating that any such summons be issued only with the approval of the Director.
On the other side of the line, it is equally important to appreciate the limits of the privilege, lest it be over-read. The Hon’ble Supreme Court in the aforesaid Suo Motu proceedings clarified that Section 132 of the BSA protects communications and advice, and not the mere production of pre-existing documents in the possession of the Advocate or the client; such production is governed by Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023 read with Section 165 of the BSA, with the objection as to privilege and admissibility being decided by the Court and not by the officer. The Hon’ble Apex Court further held that in-house counsel, not being Advocates entitled to practise within the meaning of the Advocates Act, 1961, do not enjoy the protection of Section 132, although Section 134 may apply to communications made to the employer’s external legal adviser. Similarly, in the pre-BSA regime, courts have consistently held that the privilege is displaced where the Advocate steps out of his professional role and becomes a participant in the transaction under investigation, or where the communication is itself in furtherance of an illegal purpose – a position expressly preserved by the proviso to Section 132 of the BSA and reiterated in Puneet Batra (supra) through the requirement of prima facie material of personal involvement.
The takeaway for the trade and the profession is therefore two-fold. First, a summons issued to an Advocate – whether under Section 108 of the Customs Act, Section 70 of the CGST Act or Section 14 of the Central Excise Act, 1944 – merely to extract the contents of a legal opinion or the substance of professional advice is, on the face of it, unsustainable and can be assailed in writ jurisdiction, and departments would be well advised to withdraw such summons rather than defend them. Second, where the Department genuinely believes that the exceptions under Section 132 of the BSA are attracted, the summons must say so on its face, must record the facts constituting the exception, and must be backed by the approval of a superior officer – an empty recital will not survive judicial scrutiny. Given the increasing frequency with which classification and valuation opinions are being called for in Customs and GST investigations, it would be salutary for CBIC to issue a dedicated instruction crystallising the procedure, level of approval and safeguards for issuance of summons to Advocates, on the lines already put in place by other investigating agencies.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
By way of the present Writ Petition, the Petitioner seeks, inter alia, the following reliefs:-
a. Issue an appropriate writ, order or direction in nature of Certiorari or any other writ, order or direction of like nature, quashing the Impugned Summons dated July 20, 2026, bearing file no. DRI/BZU/S-IV/ENQ-33/INTNIL/ 2025 as the same as being violative of provision of the Bharatiya Sakshya Adhiniyam, 2023 as well as the Constitution of India;
b. Issue an appropriate writ, order or direction in the nature of Prohibition, or any other writ, order or direction of a like nature, restraining Respondent No. 2 and his subordinate officers from taking any further steps or coercive action pursuant to, or in furtherance of, the Impugned Summons dated July 20, 2026 bearing File No. DRI/BZU/S-IV/ENQ-33/INT-NIL/2025, and from compelling the Petitioner, in his professional capacity as an Advocate, to appear before Respondent No. 2 or any other officer of the Directorate of Revenue Intelligence, or to disclose any privileged communication;
c. Issue an appropriate writ, order or direction in the nature of mandamus, or any other writ, order or direction of a like nature, restraining the Respondents, their officers, agents and subordinates, from taking any coercive action, or any further action whatsoever, pursuant to or in furtherance of the Impugned Summons dated July 20, 2026;
d. Issue an appropriate writ, order or direction in the nature of Mandamus, or any other writ, order or direction of a like nature, directing Respondent No. 1 to frame appropriate guidelines/circular prescribing the procedure, level of approval and safeguards to be followed prior to issuance of summons to an Advocate for disclosure of legal opinions or professional communications rendered to a client, consistent with the law declared by the Hon’ble Supreme Court in Suo Motu Writ Petition (Criminal) No. 2 of 2025;
2. At the outset, learned counsel representing the Respondent submits that the Impugned Summons dated 20.07.2026 has already been withdrawn and, therefore, the present Writ Petition has been rendered infructuous.
3. The present case concerns the issuance of summons under Section 108 of the Customs Act, 1962 to an Advocate who had rendered a legal opinion. Ordinarily, an Advocate ought to be summoned only in rare and exceptional circumstances. Since the Impugned Summons has already been withdrawn, no further orders are called for. However, the authorities are expected to exercise due care and caution while issuing summons to Advocates in such matters.
4. In view of the above, the present Writ Petition, along with the pending applications, stands disposed of.
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