REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1266 OF 2011 [Arising out of SLP (Crl.) No.628 of 2008]

Senior Intelligence Officer      … Appellant

Versus

Jugal Kishore Samra      … Respondent

J U D G M E N T

AFTAB ALAM, J.

1. Leave granted

2. This appeal is directed against the judgment and order of the Andhra  

Pradesh High Court dated March 22, 2007 in Crl. R.C. No.300 of 2007 by  

which the High Court dismissed the criminal revision filed by the appellant  

and affirmed the order of the Metropolitan Sessions Judge dated December  

15, 2006, directing that any interrogation of the respondent may be held only  

in the presence of his advocate.  

3. The facts and circumstances in which this appeal arises need to be  

noticed first. On July 20, 2006, the officers of the Directorate of Revenue  

Intelligence (for short “DRI”) Hyderabad, raided the premises of M/s Hy-

Gro Chemicals Pharmatek Private Ltd. and found a shortage of 250kgs of

Dextropropoxyphene  Hydrochloride  (DPP  HCL).  DPP  HCL  is  a  

manufactured  narcotic  drug  as  specified  in  Government  of  India’s  

notification S.O. 826(E), dated November 14, 1985, at Serial no.87.

4. C.K.  Bishnoi  (accused  no.1)  and P.V.Satyanarayana  Raju  (accused  

no.2), the Managing Director and the Production Manager, respectively, of  

M/s Hy-Gro Chemicals Pharmatek Private Ltd., admitted that the drug was  

clandestinely cleared to M/s J. K. Pharma Agencies, New Delhi, of which  

the respondent, Jugal Kishore Samra and his brother, Ramesh Kumar Samra  

(accused no.3)  happen to be the partners.  On the next  day,  i.e.,  July 21,  

2006, a search was carried out at the Cargo Complex of the Indira Gandhi  

International Airport, New Delhi, and five drums containing DPP HCL were  

discovered. On examination of the cargo it was found that the contraband  

was manufactured by M/s Hy-Gro Chemicals Pharmatek Pvt. Ltd. and was  

sent to M/s J.K. Pharma Agencies by wrongly declaring the consignment as  

5-Amino Salicylic Acid. The Directorate of Revenue Intelligence registered  

a case against C.K. Bishnoi, P.V.Satyanarayana Raju and Ramesh Kumar  

Samra for the offences punishable under sections 21 and 29 of the Narcotic  

Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”).

5. While the statements of accused no.1 and accused no.2 had already  

been  recorded  under  section  67  of  the  NDPS  Act,  the  DRI  officials  

summoned the respondent and his brother (accused no.3). According to the  

respondent, on November 5, 2006, when he, accompanied by his brother and  

2

another person arrived at the DRI office in, Hyderabad, at 10:30pm, they  

were  tortured  by  the  DRI  Officials.  Unable  to  withstand the  torture,  the  

respondent  suffered  a  heart  attack  and  was  moved  to  a  hospital.  The  

respondent was discharged on November 7, 2006 and advised complete bed  

rest for a month. But he went directly to the DRI Office to enquire about the  

whereabouts of his brother. He was kept waiting for 2 days and was also  

given threats of third degree methods. On November 9, 2006, en route to the  

DRI Office, the respondent developed chest pain and was again hospitalized  

till November 11, 2006.  

6. In this background, the respondent filed an application for anticipatory  

bail  under  section  438  of  the  Code  of  Criminal  Procedure  which  was  

allowed by the Metropolitan Sessions Judge by order dated December  1,  

2006, on the ground that the respondent was not shown as an accused in  

the case  and, therefore, the bar under section 37 of the NDPS Act did not  

apply to him and further, the medical record filed by the respondent showed  

that he had been suffering from heart  disease and had already undergone  

heart surgery on two occasions.  

7. After  the  grant  of  anticipatory  bail,  the  respondent  filed  another  

application under section 438(2)  of  the Cr .P.  C. for  modification  of  the  

order of anticipatory bail to the extent that the interrogation and examination  

of  the  respondent  be  conducted  in  the  presence  of  his  advocate  and  a  

cardiologist. The Metropolitan Sessions Judge, by order dated December 15,  

3

2006,  partly  allowed the application  of  the  respondent  after  perusing the  

medical record and holding that the presence of an advocate at the time of  

interrogation of the respondent by the DRI officials is necessary to ensure  

free and fair interrogation.  

8. Aggrieved  by  the  order  of  the  Metropolitan  Sessions  Judge  dated  

December 1, 2006, the appellant moved the Andhra Pradesh High Court in  

Crl. M.P. No.5772 of 2006 praying for cancellation of the anticipatory bail  

granted to the respondent. The High Court found no merit in the petition and  

dismissed it by order dated January 31, 2007.

9. Here it  may be noted that  on the same day,  i.e.  January 31, 2007,  

another bench of the Andhra Pradesh High Court allowed another petition  

(Crl. M.P. No.5880 of 2006) filed by the appellant and cancelled the bail  

granted  to  the  respondent’s  brother,  Ramesh  Samra  by  the  Metropolitan  

Sessions Judge on December 19, 2006. Challenging the order of the High  

Court, however, Ramesh Kumar Samra, came to this Court in SLP (Crl.)  

No.1077/07.  The  special  leave  petition  was  allowed  and  by  order  dated  

December 10, 2009 this Court set aside the order of the High Court. The bail  

of Ramesh Kumar Samra too was, thus, restored.  

10. Coming back to the case of the respondent, aggrieved by the order of  

the Metropolitan Sessions Judge dated December 15, 2006 directing for the  

respondent’s interrogation to take place only in presence of his lawyer, the  

appellant sought to challenge it in revision before the High Court in Crl. R.  

4

C. No.300 of 2007. The High Court dismissed the revision petition by order  

dated  March  22,  2007,  upholding  the  order  of  the  Sessions  Judge  and  

observing as follows:  

“9. In the present case, on account of the apprehension of the  respondent,  the  lower  court  permitted  the  Advocate  to  be  present  during the  course  of  interrogation.  But  the  Advocate  was directed not to interfere during the course of interrogation.  The purpose of the respondent requesting the presence of the  Advocate  is  only  on  account  of  the  apprehension  that  the  Investigating Officers are likely to apply third degree methods  like physical assault, etc., therefore, the learned Sessions Judge  passed the impugned order.   

10.  It  is  an  undisputed  fact  that  application  of  third  degree  method to  the  accused is  prohibited  and interrogation of  the  accused is a right provided to the Investigating Officer to elicit  certain information regarding the commission  of  the offence.  Though the Advocate was permitted to be present during the  course  of  interrogation,  he  was  prevented  from  interference  during  the  course  of  interrogation.  When  the  police  do  not  resort  to  apply  third  degree  methods,  there  cannot  be  any  problem  for  them  to  interrogate  the  respondent  to  elicit  necessary  information  relating  to  the  above  crime  in  the  presence of his Advocate.

11. After considering the above aspects, I am of the view that  the order passed by the learned Sessions Judge is  in no way  affecting the right of the Investigating Officer to interrogate the  respondent in the presence of his Advocate, therefore, I do not  find any merit in this Revision Case.”

11. Now, the matter has been brought to this Court by the appellant in  

appeal by grant of leave. At the special leave petition stage, the Court had  

made the direction that interrogation of the respondent can be carried out in  

accordance with the direction of the High Court. We are, however, informed  

5

that  the  respondent  has not  been interrogated  so  far  and the  appellant  is  

awaiting the order of the Court on his appeal.

12. Mr.  K.  T.  S.  Tulsi,  Senior  Advocate,  appearing for the respondent  

stoutly defended the order passed by the Sessions judge and affirmed by the  

High Court. He invoked the rights guaranteed under Articles 20(3), 22(1)  

and 22(2) of the Constitution of India to justify the respondent’s plea that his  

interrogation can take place only in presence of his lawyer. In support of the  

submission he placed great reliance on a decision by a bench of three judges  

of this Court in Nandini Satpathy v. P. L. Dani, (1978) 2 SCC 424.    

13. Nandini Satpathy, a former Chief Minister of the State of Orissa was  

named as one of the accused in a case registered under sections 5 (2) read  

with section 5 (1) (d) & (e) of the Prevention of Corruption Act, 1947, and  

under  sections  161,  165  and  120B  and  109  of  the  Penal  Code  on  the  

allegation of amassing assets disproportionate to her known and licit sources  

of income. For interrogation in connection with that case she was sent a long  

questionnaire along with summons to appear before the investigating officer  

on the fixed date and time and to answer those questions. She did not appear  

before the investigating officer as required by the summons where-upon the  

investigating officer filed a complaint against her under section 179 of the  

Penal Code. The Sub-Divisional Judicial Magistrate took cognizance of the  

offence  and  issued  process  against  her.  Questioning  the  order  of  the  

magistrate as violative of her right to silence she challenged it first before  

6

the High Court of Orissa and on being unsuccessful there brought the matter  

to this Court.

14. The  decision  of  the  Court  in  the  case  of  Nandini  Satpathi was  

delivered by Justice Krishna Iyer and it is a fine example of his Lordship’s  

inimitable polemical style of writing. The boldness of Miranda v. Arizona,  

(1966) 384 US 436 as an instance of judicial innovation and positivism was  

still  quite  fresh  and  taking  Miranda as  a  source  of  inspiration,  Iyer  J.,  

pondered  over  issues  of  Judicial  philosophy  and  speculated  about  the  

frontiers  to  which  he  would  have  liked  to  expand  the  constitutional  

guarantee  under  Article  20(3),  maintaining,  of  course,  the  fine  balance  

between the rights of the individual and the social obligation “to discover  

guilt, wherever hidden, and to fulfill the final tryst of the justice system with  

the society.    

15. At the beginning of the judgment in paragraph 10, the Court framed  

10  issues  that  arose  for  consideration,  three  of  which  may  have  some  

relevance for our present purpose and those are as follows:

“1.  Is  a  person likely  to  be accused of  crimes i.e.  a  suspect  accused, entitled to the sanctuary of silence as one 'accused of  any offence'? Is it sufficient that he is a potential-of course, not  distant-candidate for accusation by the police?

3. Does the constitutional shield of silence swing into action  only  in  court  or  can  it  barricade  the  'accused'  against  incriminating interrogation at the stages of police investigation?

7

7. Does 'any person' in Section 161 Criminal Procedure Code  include an accused person or only a witness?”

16. At the end of a lengthy debate,  the Court proceeded to answer the  

issues in paragraph 57, which is reproduced below:

“57. We hold that Section 161 enables the police to examine the  accused during investigation. The prohibitive sweep of Article  20(3)  goes  back  to  the  stage  of  police  interrogation-not,  as  contended,  commencing  in  court  only.  In  our  judgment,  the  provisions  of  Article  20(3)  and  Section  161(1)  substantially  cover  the  same  area,  so  far  as  police  investigations  are  concerned. The ban on self-accusation and the right to silence,  while one investigation or trial is under way, goes beyond that  case  and  protects  the  accused  in  regard  to  other  offences  pending  or  imminent,  which  may  deter  him  from  voluntary  disclosure  of  criminatory  matter.  We  are  disposed  to  read  'compelled  testimony'  as  evidence  procured  not  merely  by  physical threats or violence but by psychic torture, atmospheric  pressure, environmental coercion, tiring interrogative prolixity,  overbearing  and  intimidatory  methods  and  the  like-not  legal  penalty for violation. So, the legal perils following upon refusal  to  answer,  or  answer  truthfully,  cannot  be  regarded  as  compulsion within the meaning of Article 20(3). The prospect  of prosecution may lead to legal  tension in the exercise of a  constitutional right, but then, a stance of silence is running a  calculated  risk.  On  the  other  hand,  if  there  is  any  mode  of  pressure, subtle or crude, mental or physical, direct or indirect,  but  sufficiently  substantial,  applied  by  the  policeman  for  obtaining information from an accused strongly suggestive of  guilt,  it  becomes  'compelled  testimony',  violative  of  Article  20(3).”

17. It may be mentioned here that in holding, “the prohibitive sweep of  

Article  20(3)  goes  back  to  the  stage  of  police  interrogation-not,  as  

contended,  commencing  in  court  only”  the  decision  in  Nandini  Satpathy  

apparently  went  against  two  earlier  constitution  bench  decisions  of  this  

8

Court in Ramesh Chandra Mehta v. State of West Bengal, 1969 (2) SCR 461  

and Illias v. Collector of Customs, Madras, 1969 (2) SCR 613.  

18. In  Nandini  Satpathy,  the  Court  proceeded  further,  and  though  the  

issue neither arose in the facts of the case nor it was one of the issues framed  

in paragraph 10 of the judgment, proceeded to dwell upon the need for the  

presence  of  the  advocate  at  the  time  of  interrogation  of  a  person  in  

connection  with  a  case.  In  paragraphs  61-65  of  the  judgment,  the  Court  

made the following observations:

“61.  It  may  not  be  sufficient  merely  to  state  the  rules  of  jurisprudence in a branch like this. The man who has to work it  is the average police head constable in the Indian countryside.  The  man  who  has  to  defend  himself  with  the  constitutional  shield is  the  little  individual,  by and large.  The place where  these  principles  have  to  have  play  is  the  unpleasant  police  station, unused to constitutional nuances and habituated to other  strategies. Naturally, practical points which lend themselves to  adoption without much sophistication must be indicated if this  judgment is to have full social relevance. In this perspective we  address ourselves to the further task of concretising guidelines.  

62. Right at the beginning we must notice Article 22(1) of the  Constitution, which reads:

No  person  who  is  arrested  shall  be  detained  in  custody without being informed, as soon as may be, of  the  grounds for  such arrest  nor  shall  he be denied the  right  to  consult,  and  to  be  defended  by,  a  legal  practitioner of his choice.

The  right  to  consult  an  advocate  of  his  choice  shall  not  be  denied to any person who is arrested. This does not mean that  persons who are not under arrest or custody can be denied that  right.  The  spirit  and  sense  of  Article  22(1)  is  that  it  is  fundamental to the rule of law that the services of a lawyer shall  be  available  for  consultation  to  any  accused  person  under  

9

circumstances  of  near  custodial  interrogation.  Moreover,  the  observance  of  the  right  against  self-incrimination  is  best  promoted by conceding to the accused the right to consult a- legal practitioner of his choice.

63.  Lawyer's  presence  is  a  constitutional  claim  in  some  circumstances in our country also, and, in the context of Article  20(3), is an assurance of awareness and observance of the right  to silence. The Miranda decision has insisted that if an accused  person asks for lawyer's assistance, at the stage of interrogation,  it shall be granted before commencing or continuing with the  questioning. We think that Article 20(3) and Article 22(1) may,  in a way, be telescoped by making it prudent for the police to  permit  the  advocate  of  the  accused,  if  there  be  one,  to  be  present at the time he is examined. Overreaching Article 20(3)  and Section 161(2) will be obviated by this requirement. We do  not  lay  down  that  the  police  must  secure  the  services  of  a  lawyer.  That  will  lead  to  ‘police-station-lawyer’  system,  an  abuse which breeds other vices. But all that we mean is that if  an accused person expresses the wish to have his lawyer by his  side when his examination goes on, this  facility shall  not  be  denied,  without  being  exposed  to  the  serious  reproof  that  involuntary self-crimination secured in secrecy and by coercing  the will, was the project.

64. Not that a lawyer’s presence is a panacea for all problems of  involuntary self-crimination, for he cannot supply answers or  whisper  hints  or  otherwise  interfere  with  the  course  of  questioning except  to intercept where intimidatory tactics are  tried,  caution his client where incrimination is attempted and  insist on questions and answers being noted where objections  are  not  otherwise  fully  appreciated.  He  cannot  harangue  the  police  but  may  help  his  client  and  complain  on  his  behalf,  although his very presence will ordinarily remove the implicit  menace of a police station.

65. We realize that the presence of a lawyer is asking for the  moon in many cases until  a public defender system becomes  ubiquitous.  The  police  need  not  wait  for  more  than  for  a  reasonable  while  for  an  advocate’s  arrival.  But  they  must  invariably warn –and record that fact- about the right to silence  against self-incrimination; and where the accused is literate take  his written acknowledgment.”

10

19. It  is  on these  passages  in  Nandini  Satpathy that  Mr.  Tulsi  heavily  

relies and which practically forms the sheet-anchor of his case.  

20. The difficulty, however, is that Nandini Satpathy was not followed by  

the Court in later decisions. In Poolpandi & Ors v. Superintendent, Central   

Excise & Ors., (1992) 3 SCC 259, the question before a three judge bench of  

this Court was directly whether a person called for interrogation is entitled to  

the presence of his lawyer when he is questioned during the investigation  

under the provisions of the Customs Act, 1962 and the Foreign Exchange  

Regulation Act, 1973. On behalf of the persons summoned for interrogation,  

strong  reliance  was  placed  on  Nandini  Satpathy.  The  Court  rejected  the  

submission tersely observing in paragraph of 4 of the judgment as follows:

“4.  Both  Mr.  Salve  and  Mr.  Lalit  strongly  relied  on  the  observations in  Nandini Satpathy v.  P.L. Dani, (1978) 2 SCC  424.  We  are  afraid,  in  view  of  two  judgments  of  the  Constitution Bench of this Court in Ramesh Chandra Mehta v.  State  of  W.B.,  (1969)  2  SCR 461,  and  Illias v.  Collector  of   Customs, Madras, (1969) 2 SCR 613, the stand of the appellant  cannot  be  accepted.  The  learned  counsel  urged  that  since  Nandini  Satpathy  case was  decided  later,  the  observations  therein must be given effect to by this Court now. There is no  force in this argument.”

21. Further,  in  paragraph 6  of  the  judgment,  the  Court  referred to  the  

Constitution  Bench decision in  Ramesh Chandra Mehta and observed as  

follows:

“6. Clause (3) of Article 20 declares that no person accused of  any offence shall be compelled to be a witness against himself.  

11

It  does  not  refer  to  the  hypothetical  person who may in  the  future be discovered to have been guilty of some offence. In  Ramesh Chandra Mehta case, the appellant was searched at the  Calcutta  Airport  and diamonds and jewelleries  of  substantial  value  were  found on his  person as  also  currency  notes  in  a  suitcase with him, and in pursuance to a statement made by him  more pearls and jewellery were recovered from different places.  He  was  charged  with  offences  under  the  Sea  Customs  Act.  During  the  trial,  reliance  was  placed  on  his  confessional  statements  made  before  the  Customs  authorities,  which  was  objected to on the ground that the same were inadmissible in  evidence  inter alia in view of the provisions of Article 20(3).  While rejecting the objection, the Supreme Court held that in  order  that  the  guarantee  against  testimonial  compulsion  incorporated in Article 20(3) may be claimed by a person, it has  to be established that when he made the statement in question,  he  was  a  person  accused  of  an  offence.  Pointing  out  to  the  similar provisions of the Sea Customs Act as in the present Act  and referring to the power of a Customs Officer, in an inquiry  in  connection  with  the  smuggling  of  goods,  to  summon  any  person  whose  attendance  he  considers  necessary  to  give  evidence  or  to  produce  a  particular  document  the  Supreme  Court observed thus: (pp.469-70)

"The  expression  ‘any  person’  includes  a  person  who  is  suspected  or  believed  to  be  concerned  in  the  smuggling of goods. But a person arrested by a Customs  Officer because he is found in possession of smuggled  goods or on suspicion that he is concerned in smuggling  is not when called upon by the Customs Officer to make  a statement or to produce a document or thing, a person  accused  of  an  offence  within  the  meaning  of  Article  20(3) of the Constitution. The steps taken by the Customs  Officer are for the purpose of holding an enquiry under  the Sea Customs Act and for adjudging confiscation of  goods dutiable or prohibited and imposing penalties. The  Customs Officer does not at that stage accuse the person  suspected or infringing the provisions of the Sea Customs  Act  with  the  commission  of  any  offence.  His  primary  duty  is  to  prevent  smuggling  and to  recover  duties  of  Customs  when  collecting  evidence  in  respect  of  smuggling against  a person suspected of infringing the  provisions of the Sea Customs Act, he is not accusing the  

12

person  of  any  offence  punishable  at  a  trial  before  a  Magistrate."

The  above  conclusion  was  reached  after  consideration  of  several relevant decisions and deep deliberation on the issue,  and cannot be ignored on the strength of certain observations in  the judgment by three learned Judges in Nandini Satpathy case  which  is,  as  will  be  pointed  out  hereinafter,  clearly  distinguishable.”

22. An  argument  in  support  of  the  right  of  the  persons  called  for  

interrogation was advanced on the basis of Article 21 of the Constitution.  

The Court  rejected  that  submission also  observing in  paragraph  9 of  the  

judgment as follows:

“9. Mr. Salve has, next, contended that the appellant is within  his right to insist on the presence of his lawyer on the basis of  Article  21 of  the  Constitution.  He has  urged that  by way of  ensuring  protection  to  his  life  and  liberty  he  is  entitled  to  demand that he shall not be asked any question in the absence  of his lawyer. The argument proceeds to suggest that although  strictly  the  questioning  by  the  Revenue  authorities  does  not  amount  to  custodial  interrogation,  it  must  be  treated  as  near  custodial interrogation, and if the same is continued for a long  period it may amount to mental third degree. It was submitted  by both Mr. Salve and Mr. Lalit that the present issue should be  resolved only by applying the 'just, fair and reasonable test', and  Mr. Lalit further added that the point has to be decided in the  light  of  the facts  and circumstances  obtaining in  a  particular  case and a general rule should not be laid down one way or the  other.  Mr.  Salve  urged  that  when  a  person  is  called  by  the  Customs authorities to their office or to any place away from  his house,  and is  subjected to intensive interrogation without  the presence of somebody who can aid and advise him, he is  bound to get upset, which by itself amounts to loss of liberty.  Reference  was  made  by  the  learned  counsel  to  the  minority  view in Re Groban, 352 US 330, 1 L Ed 2d 376, declaring that  it violates the protection guaranteed by the Constitution for the  State  to  compel  a  person  to  appear  alone  before  any  law  

13

enforcement  officer  and  give  testimony  in  secret  against  his  will.”

23. Referring to the facts in Re Groban and the view taken in the minority  

judgment in the case the decision in Poolpandi observed in paragraph 10 as  

follows:

“10…..We do not share the apprehension as expressed above in  the  minority  judgment  in  connection  with  enquiry  and  investigation under the Customs Act and other similar statutes  of  our  country.  There  is  no  question  of  whisking  away  the  persons  concerned  in  these  cases  before  us  for  secret  interrogation, and there is no reason for us to impute the motive  of  preparing  the  groundwork  of  false  cases  for  securing  conviction of innocent persons, to the officers of the state duly  engaged in performing their duty of prevention and detection of  economic crimes and recovering misappropriated money justly  belonging  to  the  public.  Reference  was  also  made  to  the  observation in the judgment in Carlos Garza De Luna, Appt. v.  United States, American Law Reports 3d 969, setting out the  historical background of the right of silence of an accused in a  criminal  case.  Mr.  Salve  has  relied  upon  the  opinion  of  Wisdom, Circuit Judge, that the history of development of the  right of silence is a history of accretions, not of an avulsion and  the line of growth in the course of time discloses the expanding  conception of the right than its restricted application. The Judge  was fair enough to discuss the other point of view espoused by  the great jurists of both sides of Atlantic before expressing his  opinion. In any event we are not concerned with the right of an  accused in a criminal case and the decision is,  therefore,  not  relevant  at  all.  The  facts  as  emerging  from  the  judgment  indicate that narcotics were thrown from a car carrying the two  persons  accused  in  the  case.  One  of  the  accused  persons  testified  at  the  trial  and his  counsel  in  argument  to  the  jury  made adverse comments on the failure of the other accused to  go to the witness box. The first accused was acquitted and the  second  accused  was  convicted.  The  question  of  the  right  of  silence of the accused came up for consideration in this set up.  In the cases before us the persons concerned are not accused  and we do not find any justification for "expanding" the right  

14

reserved  by  the  Constitution  of  India  in  favour  of  accused  persons to be enjoyed by others.”

24. In  the  end,  the  Court  allowed  the  appeal  filed  by  the  Revenue  

authorities in the case in which the High Court had directed for interrogation  

to take place in presence of the advocate and dismissed all the other appeals  

in the batch on behalf of the individuals in whose cases the High Court had  

declined to give any such direction.

25. It is seen above that the respondent applied for and got anticipatory  

bail on the premise that he was not an accused in the case. There was no  

change in his position or status since the grant of bail till he was summoned  

to appear before the DRI officers. On the facts of the case, therefore, it is  

futile to contend that the respondent is entitled, as of right, to the presence of  

his  lawyer  at  the  time  of  his  interrogation  in  connection  with  the  case.  

Moreover, the respondent’s plea for the presence of his lawyer at the time of  

his interrogation clearly appears to be in teeth of the decision in Poolpandi.  

Nonetheless, Mr. Tulsi contended that the respondent’s right was recognized  

by  this  Court  and  preserved  in  Nandini  Satpathy  and  the  decision  in  

Poolpandi has no application to the present case. According to Mr. Tulsi, the  

respondent  is  summoned  for  interrogation  in  connection  with  a  case  

registered under the NDPS Act, which Mr. Tulsi called a “regular criminal”  

case, while  Poolpandi was a case under the Customs Act and so were the  

two cases before the constitution bench in  Ramesh Chandra Mehta and in  

15

Illias  that formed the basis of the decision in  Poolpandi. In our view, the  

distinction sought to be drawn by Mr. Tulsi is illusory and non-existent. The  

decision in  Poolpandi was in cases under the Customs Act, 1962 and the  

Foreign  Exchange  Regulation  Act,  1973.  Both  these  Acts  have  stringent  

provisions  regarding search,  seizure  and arrest  and some of  the  offences  

under each of these two Acts carry a punishment of imprisonment up to 7  

years. We, therefore, fail to see, how a case registered under NDPS Act can  

be said to be a “regular criminal” case and the cases under the Customs Act  

and the Foreign Exchange Regulation Act, not as criminal cases.

26. In view of the clear  and direct  decision in  Poolpandi,  we find the  

order of the High Court, affirming the direction given by the Sessions Judge  

clearly unsustainable.

27. We may, however, at this stage refer to another decision of this Court  

in  D.K. Basu v.  State of West Bengal, (1997) 1 SCC 416. In this case, the  

Court,  extensively  considered  the  issues  of  arrest  or  detention  in  the  

backdrop of Articles 21, 22 and 32 of the Constitution and made a number  

of directions to be followed as preventive measures in all cases of arrest or  

detention till legal provisions are made in that behalf. The direction at serial  

number 10 in paragraph 35 is as follows:

“(10). The arrestee may be permitted to meet his lawyer during  interrogation, though not throughout the interrogation.”

16

28. Strictly speaking the aforesaid direction does not apply to the case of  

the respondent, because he being on bail cannot be described as an arrestee.  

But, it is stated on behalf of the respondent that he suffers from heart disease  

and on going to the DRI office, in pursuance to the summons issued by the  

authorities, he had suffered a heart attack. It is also alleged that his brother  

was  subjected  to  torture  and the respondent  himself  was threatened with  

third degree methods. The medical condition of the respondent was accepted  

by the Metropolitan Sessions Judge and that forms one of the grounds for  

grant of anticipatory bail to him. Taking a cue, therefore, from the direction  

made in DK Basu and having regard to the special facts and circumstances  

of the case, we deem it  appropriate to direct  that the interrogation of the  

respondent may be held within the sight of his advocate or any other person  

duly  authorized  by  him.  The  advocate  or  the  person  authorized  by  the  

respondent 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.  

29. The order passed by the Metropolitan Sessions Judge and affirmed by  

the High Court is substituted by the aforesaid directions made by us.

30. Before closing the record of the case, we may state that arguments  

were advanced before us,  when does a person called for interrogation in  

connection with a case ceases to be a mere provider of relevant information  

17

or  a  witness  and  becomes  an  accused  entitled  to  the  Constitutional  

protections.  Arguments  were  also  addressed  on  Article  20(3),  22(1)  and  

22(2) and section 161 of the Cr.P.C. But, in the facts of the case we see no  

reason to go into those questions and we are satisfied that the present case is  

fully covered by the three judge bench decision of this Court in Poolpandi.

31. In  the  result,  the  orders  passed  by  the  High  Court  and  the  

Metropolitan Session Judge are set aside and the appeal is allowed to the  

extent indicated above.  

.........................................J  (AFTAB ALAM)

.........................................J  (R.M. LODHA)

New Delhi, July 5, 2011.   

18