Holding

The respondent is not entitled as a matter of right to have his lawyer present during interrogation, but the interrogation may be conducted within the sight of his lawyer or an authorized person, without hearing or consultation.

Summary

The case arose from a NDPS investigation where Jugal Kishore Samra (respondent) was summoned by the Directorate of Revenue Intelligence for interrogation. He alleged torture and a heart attack during the summons and obtained anticipatory bail. He then sought modification of the bail order to have his lawyer and a cardiologist present during interrogation. The Metropolitan Sessions Judge and the Andhra Pradesh High Court allowed the presence of his lawyer. The appellant, a senior intelligence officer, appealed. The Supreme Court held that, as the respondent was not yet an accused, he is not entitled as a matter of right to have his lawyer present during interrogation, but given his medical condition, the interrogation may be conducted within the sight of his lawyer or an authorized person, without hearing or consultation. The Court set aside the lower courts' orders and substituted them with these directions, partly allowing the appeal.

Issues considered

The extent of a person's right to have legal counsel present during police interrogation under the NDPS Act and CrPC.
Whether Article 20(3) and Article 22(1) of the Constitution guarantee the presence of a lawyer for a person summoned for interrogation who is not yet an accused.
The applicability of the decisions in Poolpandi and Nandini Satpathy to the present NDPS case.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 438
Narcotic Drugs and Psychotropic Substances Act, 1985s. 21, s. 29

Subjects

anticipatory bailinterrogationright to counselNDPS ActSection 161 CrPCArticle 20(3) ConstitutionArticle 22(1) Constitutionpresence of lawyerpolice interrogationtortureheart attack

Judgment

(2011] 7 S.C.R. 889

SENIOR INTELLIGENCE OFFICER A
v.
JUGAL KISHORE SAMRA
(Criminal Appeal No. 1266 of 2011)
.•Jtf:
JULY 05, 2011 ,.
B
[AFTAB ALAM AND R.M. LODHA,' JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985
- Registration of case against accused for offences
punishable under the NDPS Act - lssuan.ce of summons to C
one of the accused and his brother (respondent) - Case of
respondent that on going to the Directorate of Revenue
Intelligence Office, they were tortured by the officials; that he
suffered a heart attack and was later threatened with third
degree methods - Application for anticipatory bail by D
respondent - Allowed by the Sessions Judge - Thereafter,
respondent seeking 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 - Sessions Judge ·directing that the E
interrogation of the respondent to take place only in presence
of his lawyer - Said order upheld by the High Court - On
appeal, held: Respondent is not entitled as of right to the
presence of his lawyer at the time of his interrogation in
connection with the case - However, having regard to the facts F
and circumstances of the case, the interrogation of the
respondent may be held within the sight of his advocate or
any other person duly authorized by him who may watch the
proceedings from a distance or from beyond a glass partition
but will not be within the hearing distance and it will not be G
open to the respondent to have consultations with him in
course of the interrogation - Thus, order passed by the
Sessions Judge and upheld by the High Court is substituted
by the said directions.
889 H
890 SUPREME COURT REPORTS (2011] 7 S.C.R.

A A case was registered against A1 to A3 for the
offences punishable under the Narcotic Drugs and
Psychotropic Substances Act, 1985. The Directorate of
Revenue Intelligence Officers recorded the statement of
A1 and A2. Thereafter, they summoned respondent and
B his brother A3. It was the respondent's case that on going
to ORI offices, they were tortured and the respondent
suffered a heart attack. On discharge from the hospital
the respondent went directly to ORI office to enquire
about A 3 and he was threatened with third degree
c methods and again had to be hospitalized. The
respondent filed an application for anticipatory bail and
the same was allowed. Thereafter, the respondent filed
another application under Section 438(2) Cr .P. C. for
modification of the order of anticipatory bail to the extent
that the interrogation and examination of the respondent
0
be conducted in the presence of his advocate and a
cardiologist. The Metropolitan Sessions Judge partly
allowed the application. Aggrieved, the appellant filed an
application praying for cancellation of the anticipatory bail
granted to the respondent. The High Court dismissed the
E same. The appellant then filed another application and the
High Court cancelled the bail granted to A 3. A3 then filed
a special leave petition and this Court set aside the order
of the High Court and restored the bail granted to A3.
Meanwhile, the appellant filed a revision before the High
F Court challenging the order passed by the Metropolitan
Sessions Judge directing for the respondent's
interrogation to take place only in presence of his lawyer.
The High Court dismissed the revision. Therefore, the
appellant filed the instant Special Leave Petition.
G
Partly allowing the appeal, the Court
, HELD: 1.1. 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
H
SENIOR INTELLIGENCE OFFICER v. JUGAL 891
KISHORE SAMRA

or status since the grant of bail till he was summoned to A
appear before th-e Directorate of Revenue Intelligence
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 B
plea for the presence of his lawyer at the time of his
interrogation clearly appears to be in teeth of the decision
in *Poo/pandi. Nonetheless, the submission that the
respondent's right was recognized by this Court and
preserved in **Nandini Satpathy.and the decision in c
*Poo/pandi has no application to the instant case since
the respondent is summoned for interrogation in
connection with a case registered under the NDPS Act,
which the counsel called a "regular criminal" case, while
*Poolpandi was a case under the Customs Act and so 0
were the two cases before the constitution bench in
Ramesh Chandra Mehta and in lllias that formed the basis
of the decision in *Poo/pandi, the distinction sought to be
drawn is illusory and non-existent. The decision in
*Poolpandiwas in cases under the Customs Act, 1962 and E
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. It cannot be seen how a case registered under
NDPS Act can be said to be a "regular criminal" case and F
the cases under the Customs Act and the Foreign
Exchange Regulation Act, not as criminal cases. In view
of the clear and direct decision in *Poo/pandi, the order
of the High Court, affirming the direction given by the
Sessions Judge clearly unsustainable. [Para 26 and 51] G
[907-8-H; 908-A]
1.2. The said direction in the case of ***Dr. Basu v.
State of West Bengal that the arrestee may be permitted
to meet his lawyer during interrogation, though not H
892 SUPREME COURT REPORTS [2011] 7 S.C.R.

A throughout the interrogation, does not apply to the case
of the respondent, because -he being o-n--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 ORI office, in pursuance to the summons
B 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
c 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, it is directed
that the interrogation of the respondent may be held
0 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
E it will not be open to the respondent to have
consultations with him in course of the interrogation. The
order passed by the Metropolitan Sessions Judge and
upheld by the High Court is substituted by the said
directions. [Paras 27, 28 and 29] [908-B-H; 909-A]

F *Poolpandi and Ors. v. Superintendent, Central Excise
and Ors. (1992) 3 sec 259: 1992 (3) SCR 247 - relied on.

**Nandini Satpathy v. P.L. Dani (1978) 2 SCC 424: 1978
(3) SCR 608; Ramesh Chandra Mehta v. State of West
G Bengal 1969 (2) SCR 461; 11/ias v. Collector of Customs,
Madras 1969 (2) SCR 613; ***D.K. Basu v. State of West
Bengal (1997) 1 SCC 416: 1996 (10) Suppl. SCR 284 -
referred to.

Miranda v. Arizona (1966) 384 US 436 - referred to.
H
SENls,R INTELLIGENCE OFFICER v. JUGAL 893
KISHORE SAMRA

Case Law Reference: A

1978 (3) SCR 608 Referred .to. Paras 12,
~
14, 17,
18, 19, 25
,.
(1966) 384 us 436 Referred to. Para 14 B

1969 (2) SCR 461 Referred to. Para 17

1969 (2) SCR 613 Referred to. Para 17

1992 (3) SCR 247 Relied on. Para 25, c
26, 30
1996 (10) Suppl. SCR 284 Referred to. Para 27,
28

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal D
No. 1266 of 2011.
'
Frofn the Judgment & Order dated 22.3.2007 of the High
Court of Judicature of Andhra Pradesh at Hyderabad in
Criminal Revision Case No. 300 of 2007.
E
Mohan Jain, ASG, T.R. Andhyarujina, K.T.S. Tulsi, Soumik
Ghosal, D.K. Thakur, Deepak Jain, N. Patil, M. Chatterji, B.
Krishna Prasad, Gaurave Bhargava, Maheen Pradhan, Niraj
Gupta for the appearing parties.
F
The Judgment of the Court was delivered by

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 G
Crl. RC. 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 Judg~ dated December 15,
2006, directing that any interrogation of the respondent may be
held only in the presence of his advocate. H
894 SUPREME COURT REPORTS [2011] 7 S.C.R.

A 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 "ORI") Hyderabad,
raided the premises of M/s Hy-Gro Chemicals Pharmatek
Private Ltd. and found a shortage of 250kgs of
B Dextropropoxyphene Hydrochloride (OPP HCL). OPP 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
C 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
D 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 OPP HCL were
discovered. On examination of the cargo it was found that the
E contraband was manufactured by M/s Hy-Gro Chemicals
Pharmatek Pvt. Ltd. and was sent to Mis 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
F 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
G had already been recorded under section 67 of the NDPS Act,
the ORI 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 another person
arrived at the ORI office in, Hyderabad, at 10:30pm, they were
tortured by the ORI Officials. Unable to withstand the torture, the
H
SENIOR INTELLIGENCE OFFICER v. JUGAL 895
KISHORE SAMRA [AFTAB ALAM, J.]

respondent suffered a heart attack and was moved to a A
hospital. The respondent was discharged on November 7, 2006
and advised complete bed rest for a month. But he went directly
to the ORI 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 B
route to the ORI 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 C
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 0
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 E
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, 2006, partly allowed the application of the respondent after F
perusing the medical record and holding that the presence of
an advocate at the time of interrogation of the respondent by
the ORI officials is necessary to ensure free and fair
interrogation.

8. Aggrieved by the order of the Metropolitan Sessions G
. 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
H
896 SUPREME COURT REPORTS [2011] 7 S.C.R.

A 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
8 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.1077107. The special leave petition was allowed
and by order dated December 10, 2009 this Court set aside
C 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
D 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. C. No.300 of 2007. The High Court dismissed the revision
petition by order dated March 22, 2007, upholding the order
E 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
F
of interrogation. The purpose of the respondent requesting
the presence of the Advoeate 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
G 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
H to elicit certain information regarding the commission of
. •:.

SENIOR INTELLIGENCE OFFICER v. JUGAL 897
KISHORE SAMRA [AFTAB ALAM, J.]
.if.'::.
-~

'.~ f~.
the offence. Though the Advocate was permitted to be A ,.
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 B
relating to the above crime in the presence of his.
Advocate.

11. After considering the above aspects, 1. 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
c
interrogate the respondent in the presence of his-
Advocate, therefore, I do not find any merit in this Reyision
Case."

· 11. Now, the matter has been brought to this Court by the D
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
that the respondent has not been interrogated· so far and the E
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
F
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 NaneJini
Satpathy v. P. L. Dani, (1978) 2 SCC 424. G

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 f1} (d) & ··~ ..
··...i.·.,

(e) of the Prevention of Corruption Act, 1947, and under H
898 SUPREME COURT REPORTS [2011 I 7 S.C.R.

A sections 161, 165 and 1208 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
B date and time and to answer those questions. She did not
appear before ttie investigating officer as required by the
summons where-upon the investigating officer filed a complaint
against her under section 179 of the Pen~I Code. The Sub-
Divisional Judicial Magistrate took cognizance of the offence
c and issued process against her. Questioning the order of the
magistrate as violative of her right to silence she challenged it
first before 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
D 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.,
E 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
F 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 1O issues that arose for consideration, three of
which may have some relevance for our present purpose and
G those are as followsj

"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
H the police?
SENIOR INTELLIGENCE OFFICER v. JUGAL 899
KISHORE SAMRA [AFTAB ALAM, J.]

3. Does the constitutional shield of silence swing into A
ar.tion only in court or can it barricade the 'accused'
arainst incriminating interrogation at the stages of police
ir;..;estigation?

7. Does 'any person' in Section 161 Criminal Procedure
8
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:
c
"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 D
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, E
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 F
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 G
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, H•
900 SUPREME COURT REPORTS [2011] 7 S.C.R.

A 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
8
decision in Nandini Satpathy apparently went against two
earlier constitution bench decisions of this Court in Ramesh
Chandra Mehta v. State of West Bengal, 1969 (2) SCR 461
and 11/ias v. Collector of Customs, Madras, 1969 (2) SCR 613.

C 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
o 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
E 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
F 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.

G 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
H
SENIOR INTELLIGENCE OFFICER v. JUGAL 901
KISHORE SAMRA [AFTAB ALAM, J.]

denied the right to consult, and to be defended by, A
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
8
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 circumstances of near custodial
interrogation. Moreover, the observance of the right
against self-incrimination is best promoted by conceding C
to the accused the right to consult a-leg'!ll practitioner of
his choice.

63. Lawyer's presence is a constitutional claim in some
circumstances in our country also, and, in the context of D
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 E
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 F
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 G
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 H
902 SUPREME COURT REPORTS [2011] 7 S.C.R.

A 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
B 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
c 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
D accused is literate take his written acknowledgment."

19. It is on these passages in Nandini Satpathy that Mr.
Tulsi heavily relies and which practically forms the sheet-anchor
of his case.
E
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
F 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
G 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
H sec 424. We are afraid, in view of two judgments of the
SENIOR INTELLIGENCE OFFICER v. JUGAL 903
KISHORE SAMRA [AFTAB ALAM, J.]

Constitution Bench of this Court in Ramesh Chandra A
Mehta v. State of W.B., (1969) 2 SCR 461, and ///ias 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
de.cided later, the observations therein must be given effect B
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:
c
"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 D
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 E
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 F
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 G
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
H
904 SUPREME COURT REPORTS [2011] 7 S.C.R.

A 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
B
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
c 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
D 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
E 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 person of any
offence punishable at a trial before a Magistrate."
F
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
G
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
H observing in paragraph 9 of the judgment as follows:
SENIOR INTELLIGENCE OFFICER v. JUGAL 905
KISHORE SAMRA [AFTAB ALAM, J.]

"9. Mr. Salve has, next, contended that the appellant is A
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 B
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 c
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
0
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 itseif amounts to loss of liberty. E
Reference was made by the learned counsel to the minority
view in Re Graban, 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 F
· 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 Poo/pandi
observed in paragraph 10 as follows: G

"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 H
906 SUPREME COURT REPORTS (2011) 7 S.C.R.

A 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
8 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
c 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
D 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
E
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
F 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
G 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
H directed for interrogation to take place in presence of the
SENIOR INTELLIGENCE OFFICER v. JUGAL 907
KISHORE SAMRA [AFTAB ALAM, J.]

advocate and dismissed all the other appeals in the batch on A
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
8
in the case. There was rio 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 C
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 D
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 Poo/pandi was a case under the Customs . E
Act and so were the two cases before the constitution bench
in Ramesh Chandra Mehta and in //lias that formed the basis
of the decision in Poolpandi. lri our view, the distinction sought
to be drawn by Mr. Tulsi is illusory arid non-existent. The
decision in Pootpandi was in cases under the Customs Act, F
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 G
the Customs Act and the Foreign Exchange Regulation Act, not
as criminal cases.

26. In view of the clear and direct decision in Poolpandi,
H
908 SUPREME COURT REPORTS (2011) 7 S.C.R.

A 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,
B (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
C that behalf. The direction at serial number 1O in paragraph 35
is as follows:

"(10). The arrestee may be permitted to meet his lawyer
during interrogation, though not throughout the
interrogation."
D
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, i~ is stated on behalf of the
respondent that he suffers from heart disease and on going to
E 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
F 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
G 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.
H
SENIOR INTELLIGENCE OFFICER v. JUGAL 909
KISHORE SAMRA [AFTAB ALAM, J.]
29. The order passed by the Metropolitan Sessions Judge A
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 B
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 C
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 D
is allowed to the extent indicated above.

N.J. Appeal partly allowed.