Officer Vs. Jugal Kishore Samra
J U D G M E N T
AFTAB ALAM, J.
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
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 2Dextropropoxyphene 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.
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").
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 3another 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.
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.
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, 42006, 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.
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.
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. 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. 5C. 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.
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."
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 6that the respondent has
not been interrogated so far and the appellant is awaiting the order of the
Court on his appeal.
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.
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 7the High Court of Orissa and on being unsuccessful there
brought the matter to this Court.
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
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. Does 'any person' in
Section 161 Criminal Procedure Code include an accused person or only a
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)."
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 9Court in Ramesh Chandra Mehta v. State of
West Bengal, 1969 (2) SCR 461 and Illias v. Collector of Customs, Madras, 1969
(2) SCR 613.
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
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 not 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 10circumstances 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
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."
is on these passages in Nandini Satpathy that Mr. Tulsi heavily relies and
which practically forms the sheet-anchor of his case.
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."
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. 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
"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 13 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
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 enforcement officer
and give testimony in secret against his will."
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 15 reserved by the Constitution of India in favour
of accused persons to be enjoyed by others."
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.
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
16Illias 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.
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
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."
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
order passed by the Metropolitan Sessions Judge and affirmed by the High Court
is substituted by the aforesaid directions made by us.
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 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.
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.