Section 14 of the Central Excise Act and Section 108 of the Customs Act empower officers to summon person, ask questions from persons summoned and record their statement. These statements are legally admissible as evidence in various judicial and quasi-judicial proceeding. Further the persons summoned are legally required to state the truth. These Sections imposes legal duties on the persons summoned, and have wide ranging legal implications, the authors are of the view that the persons summoned under these sections must have a right to consult a legal practitioners of choice at the time of recording of these statements. However the settled position of law is against the view of the authors.
The Supreme Court held that the person being interrogated under Section 14 of the Central Excise Act or under Section 108 of the Customs Act is not an accused nor can he plead that there is a possibility of being made an accused in future. Hence, he has no right to ask for his advocate presence during enquiry. This judgment of the 3 Judge Bench of the Supreme Court is holding the field since long and has been approved by the highest judiciary umpteen numbers of times. In Prakash Kumar v. Union of India, where it was pleaded before the Kerala High Court that persons summoned apprehending third degree methods from Excise Officers and prayed for presence of legal practitioner during his interrogation, the Court held that protection under Article 20(3) of the Constitution of India not available to investigation under Section 14 of the Central Excises and Salt Act, 1944 as summoned person is neither an accused nor the officer taking the statement is a police officer.
When we read these judgments, we find that these judgments need to be reviewed. These judgments are logically inconsistent, based on incorrect application of law and legally untenable. This paper is an humble attempt to bring these infirmities in light so that these infirmities can be rectified at the earliest opportunity.
Section 14 of the Central Excise Act reads as,
SECTION 14. Power to summon persons to give evidence and produce documents in inquiries under this Act. –
(1) Any Central Excise Officer duly empowered by the Central Government in this behalf, shall have power 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 which such officer is making for any of the purposes of this Act. A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
(2) All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required:
Provided that the exemptions under sections 132 and 133 of the Code of Civil Procedure, 1908 (5 of 1908) shall be applicable to requisitions for attendance under this section.
(3) Every such inquiry as aforesaid shall be deemed to be a “judicial proceeding” within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860).
Section 108 of the Customs Act, 1962 provides that,
SECTION 108. Power to summon persons to give evidence and produce documents. –
(1) Any gazetted officer of customs shall have power 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, which such officer is making in connection with the smuggling of any goods.
(2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required:
Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section.
(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860).
A cursory view of these Sections brings these propositions of law into notice:
(i). They are applicable only when an enquiry is in progress. Thus it is clear that an investigation is going on.
(ii). These sections do not impose any restrictions on the persons summoned not to consult an advocate during recording of statements.
(iii). These are Judicial Proceeding for limited purposes of section 193 and 228 of the Indian Penal Code. Even without these expressed provisions, these proceedings are quasi-judicial proceeding in toto, as held by higher judiciary.
In poolpandi (supra) the Courts have held that protection of Article 22(1) of the Constitution of India is available only to “persons who is arrested”. Article 22(1) of the Constitution of India reads as,
“No person who is arrested nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
The article is very clear- it refers to persons who are arrested. It gives a fundamental right to every arrested person to consult and to be defended by a legal practitioner of his choice.
However, does it mean that a person who is not arrested has no right to consult a legal practitioner of his choice?
Right to consult a legal practitioner is a fundamental right guaranteed under Article 21:
The right for other classes of persons, not included in Article 22(1) is in any case included in Article 21 of the Constitution. The author is of the opinion that a right to consult an advocate doesn’t emanate from the fact that a person is arrested or an accused or likely to be made one in future. Right to consult an advocate is not limited only to persons covered under Article 22 of the Constitution. Every person, whether an accused or not, whether an suspect or not has a right to consult a legal practitioner at any point to time when he feels that his right is being violated or likely to be violated. The right is as fundamental as Right to life itself. Thus, if, for example, a person is being abused by the interrogating officer, during an enquiry under Customs or Central Excise Act, he has every right to consult an advocate, then and there. And we have a chequered history of investigation- hundreds of custodial deaths every year, forced confessions, third degree tortures- read a newspaper of any day and you will agree with us. It cannot be argued that the person being interrogated listen to the abuses till the time enquiry proceeds and only after that he can consult an advocate.
A right cannot exist, without a procedure to enforce that right. Right to consult a legal practitioner is a sine qua non for existence of any right, for without such consultation every right of the persons being interrogated is in danger. Even when such danger is not actual, and merely a perceived one, then also such a right is a necessity.
Article 22(1) cannot be interpreted to mean that a person not arrested has no right to consult a legal practitioner of his choice. In fact right to consult a legal practitioner of choice is implicit in liberty clause of Article 21 of the Constitution of India. Liberty cannot be interpreted to mean only physical movement- it includes movement of thoughts, movement of ideas, exchange of ideas. Article 22(1) has been incorporated in the Constitution to protect this valuable right in a particular circumstance when there is a real danger of violation of such right. The wordings, thus is to protect a special class of people and not to exclude the other class. It is obvious that all free persons can consult a lawyer just like they can consult a doctor, a therapist or physicist. There need be no law granting them the privilege. Such protection is needed to be put in words only in cases where the protection may otherwise not be assumed.
To reiterate, to state, that Article 22(1) are inclusive clauses and not exclusive. They include the accused and a prisoner in the ambit of its immunity and does not mean to exclude a person not accused or not arrested. In fact, Article 22(1) is a declaratory law providing for the right to consult a lawyer even when a person is accused or arrested or denied his liberty. Thus even a person whose liberty has been legally curtailed (persons arrested) has a liberty to consult a legal practitioners of his choice, can it mean that a person whose liberty is guaranteed by Article 21 of the Constitution has no liberty to consult a legal practitioner? This declaration in the Constitution does not mean that person does not have the right to consult a lawyer unless he is accused but only provides that even an accused has a right to consult his lawyer.
It may be noted that free legal aid to the poor persons has been recognized as a Fundamental Right under Article 21 of the Constitution. Can it mean denial of right to consult a legal practitioner to those who can afford legal services!
It may be noted that the Supreme Court has held any number of times that Fundamental Rights of the Constitution cannot be interpreted in a restrictive manner. The Hon’ble Supreme Court observed in Maneka Ghandhi,
“The attempt of the Court should be to expand the reach and ambit of the Fundamental rights rather than to attenuate their meaning and content by a process of judicial interpretation.”
Bhagawati, Justice observed,
“It must be remembered that Fundamental Rights are constitutional guarantee given to the people of India and are not merely paper hopes or fleeting promises and so long as they find a place in the Constitution, they shouldn’t be allowed to be emasculated in their application by a narrow or constricted judicial interpretation.”
In view of these we are of the opinion that right to consult a legal practitioner is implicit in the right to life enshrined in the Article 21 of the Constitution of India.
Even when such right is not included in Article 21, then also it cannot be denied at the time of investigation:
Even if it is argued that right to consult a lawyer is not included in Article 21, then also such right cannot be denied to free persons. At the most it can be argued that it is not a “Fundamental Right”. It can never be argued that a person has no rights except for fundamental rights given in part-III of the Constitution. There are thousands of rights a person enjoys, which are not fundamental rights. A person has a right to do anything unless expressly prohibited by law to do so.
Libertas est naturalis facultas ejus quod cuique facere libet, nisi qudo de jure aut vi prohibeteur, i.e. “Liberty is that natural faculty which permits everyone to do anything he pleases except that which is restrained by law.” It is a fundamental principle of common law on which our jurisprudence is based on.
For something to be permissive, a law need not have a declaration regarding it. Just like, for a person to be able to eat, it need not be written in any Constitution or any statute. It is only when something is prohibited or something is expressly given out as a privilege does the law need to be worded so to remove any discrepancy. However, when some act is ordinarily permitted then there need not be some law expressly granting it. Thus is the case for right to consult a lawyer. No law in the country puts any prohibition on any person against his right to consult his lawyer. Nothing in any law says that a person does not have a right to consult a lawyer. There is nothing in Section 14 of the Central Excise Act, or in Section 108 of the Customs Act, which prohibits consultation with a lawyer. Hence, it follows that a person can consult a legal practitioner at any time. This thus also implies that he has a right to consult a lawyer when he is brought in for investigative enquiries.
The laws of United States, Bill of Rights of which have set the trend for Fundamental Rights in Indian Constitution, go a step further. While asserting that a person has a right to consult a lawyer, the American laws also provide that such consultation of a lawyer is confidential. Even an accused or a person imprisoned can seek private consultation with his lawyer. This thus shows that the American courts have been viewing the right to consult a lawyer with utmost sincerity. The right to consult an attorney in private has deep roots in Anglo-American law. Indeed, it was held, “the attorney-client privilege under federal law [is] the oldest of the privileges for confidential communications known to the common law.” The right is not limited to those facing criminal prosecution; it applies to all sorts of legal counseling. Here when it is provided that attorney-client privilege is the oldest privilege in common law it does not mean that the communication is privileged only when some common law provisions are violated. A person has a right to a lawyer even when he seeks consultation under circumstances too without any legal battle looming ahead.
If such a rights is not there, it ought to be there:
Let us take, for argument sake that such a right to consult a legal practitioner is not there in the Indian law. Then also the authors are of the view that it ought to be there, legally recognized and piously protected.
When the law itself declares investigations to be a legal proceeding resulting into legal duties and liabilities, having wide ranging legal remifications, denial of a right to consult a legal practitioner smacks of totalitarianism. If it is there, it is denial of Rule of Law. You make a law, you imposes legal liabilities on persons and denies those persons a right to know the law by consulting a legal practitioner. Sickening.
Interrogation in our country has a chequered history of custodial violence, extraction of so called voluntary statement, denial of various rights to the accused, suspects and prisoners, recording of false Panchnama and stock witnesses, tempering with evidence by the public authorities, thoroughally corrupt investigative machinery and above all colonial laws to protect these things. In such a situation, denial of right to consult legal practitioners at the time of investigation appears to be an attempt to perpetuate these practices. Justice should not only be done, it should menifestedly seen to have been done. Giving such right to the persons at the time of investigation will be a right step in removing these evils of investigation and at the same time it will be a giant step towards development of some faith in the citizens towards investigative machinery.
Hon’ble Supreme Court said in Nandini Sathpaty v. P L Dani,
“The right against self incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice. Reading Article 20(3) and 22(1) together, it would be prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined. If the accused person expressed the wish to have his lawyer by his side when his examination goes on, this facility should not be denied to him.”
Although, in Nandini the Court was involved in the right against self incrimination and hence the court referred to this right in the observation, it is true that all the rights of the accused, or for the matter any person not an accused or a prisoner, is best protected when he has a right to consult a legal practitioner of his choice at any time he wishes.
Although, the right against self-incrimination is beyond the scope of this paper, it is held that a person interrogated under these sections has no right against self-incrimination. Although, it is a settled position of law, the authors differ. The persons recording statements under Section 14 of the Central Excise Act and Under Section 108 of the Customs Act are legally empowered to record evidence, the protection of Section 132 of the Indian Evidence Act available to witnesses cannot be denied to the persons summoned.
When we see various judicial pronouncements concerning the issues as fundamental as definition of accused, or arrested persons or even police officers, we find plethora of judgments, which are diametrically opposite to each other. Right against self-incrimination is available to accused only, but nobody knows when a person becomes accused. When police starts investigation by recording of FIR, the person becomes an accused; but when other agency like Custom or Central Excise or Enforcement Directorate starts investigation he is not an accused. No body knows when a person is said to be under arrest. Nandini (supra) itself referred to “near custodial interrogation”. More than that, no body knows who is a police officer. Naturally we don’t know when protection of Section 25 of the Indian Evidence Act will be available.
Such inconsistency has come into law because we have tried to interpret the basic pillars of criminal jurisprudence in an artificial manner. A police officer is an officer exercising police power of the state. Law enforcement is a police power of the state. Hence Customs and Excise officers are police officers. A person is an accused when some allegation has been made against him. It is immaterial whether the allegation is in the form of a complaint before a law enforcing authority, or it has been reduced into writing in the form of an FIR or it has been placed before a magistrate. A person is under arrest if his liberty has been curtailed. It is immaterial if the arrest has been made as per the procedure laid down in the Code of Criminal Procedure. Authors plead that while interpreting such basic rights of individual, substance of the matter must be considered and not the form of the transaction. These rights are too sacred to be tinkered on the basis of superficial words used.
In view of these, the authors are of the view that necessary changes must be brought in the law, as it is implemented. Presently, off Course, a person cannot claim that he should be interrogated only in presence of a lawyer, but the presence of a lawyer can be allowed by the inquiry officer, if a request is made. However, once a request for presence of a lawyer is made to the inquiry officer, it cannot be rejected arbitrarily or without valid reasons. If any request of presence of a lawyer is arbitrarily rejected, the Courts may draw an adverse inference against the statement recorded in such proceeding.
An enquiry into the obvious:
The right we are looking into this paper is too obvious to be inquired into. No jurisprudence can claim itself to be a civilized jurisprudence, if these rights are denied to individuals.
Some serious thinking is required.
We should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. Unjust laws exist: shall we be content to obey them or shall we endeavour to amend them?
Written by:- Advocate Rajesh Kumar. The author can be contacted on The author can be contacted on [email protected] , Web: www.rajeshkumar.co.in