questioning the validity of the appointments of Assistant 2 Public Prosecutor (Class-II) made from the select list prepared on the basis of the written examination and viva voce and personality test held by the Gujarat Public Service Commission. The challenge was based on the ground that the minimum qualifying mark, separately fixed for the viva voce, was introduced just two or three days before the commencement of the oral tests though it was not stipulated in the advertisement issued by the Commission for filling up the posts. According to the writ petitioners (respondents before this Court), the introduction of the minimum qualifying mark for the viva voce, after the commencement of the selection process was, illegal and actuated by bias on the part of the Commission. It led to a number of highly anomalous results and completely vitiated the selections and the appointments made on that basis.

                                                                          REPORTABL
                                                                                             E

                     IN THE SUPREME COURT OF INDIA

                       CIVIL APPELLATE JURISDICTION


                   CIVIL APPEAL NOS. 4959-4962 OF 2011

                [Arising out of SLP (C) Nos. 5177-5180 of 2010]




Barot Vijaykumar Balakrishna & Ors.                                        ... Appellants


                                           Versus


Modh Vinaykumar Dasrathlal & Ors.                                         ... Respondents





                                          WITH




                        CIVIL APPEAL NO. 4963 OF 2011

                   [Arising out of SLP (C) Nos. 3584 OF 2010]


Gujarat Public Service Commission & Anr.                                   ... Appellants


                                           Versus

Modh Vinaykumar Dasarathlal & Ors.                                           ... Respondents

       

                                    J U D G M E N T


AFTAB ALAM, J.





1.     Leave granted.


2.     These   appeals   arise   from   a   batch   of   writ   petitions   filed   before   the


Gujarat High Court questioning the validity of the appointments of Assistant


                                               2



Public Prosecutor (Class-II) made from the select list prepared on the basis


of   the   written   examination   and   viva   voce   and   personality   test   held   by   the


Gujarat Public Service Commission. The challenge was based on the ground


that the minimum qualifying mark, separately fixed for the viva voce, was


introduced just two or three days before the commencement of the oral tests


though it was not stipulated in the advertisement issued by the Commission


for filling up the posts. According to the writ petitioners (respondents before


this  Court),  the  introduction   of  the minimum  qualifying  mark   for the  viva


voce,   after   the   commencement   of   the   selection   process   was,   illegal   and


actuated by bias on the part of the Commission. It led to a number of highly


anomalous   results   and   completely   vitiated   the   selections   and   the


appointments made on that basis.  


3.        A   learned   single   judge   of   the   High   Court   did   not   accept   the   writ


petitioners' contention and dismissed all the writ petitions by judgment and


order dated August 17, 2009, passed in Special Civil Application No.7699 of


2009 (and other analogous cases).


4.      Against   the   judgment   of   the   single   judge,   the   writ   petitioners   filed


intra-court   appeals   and   a   division   bench   of   the   High   Court   allowed   the


appeals and set aside the judgment of the single judge. It held that the action


of the Commission in introducing the minimum qualifying mark for the viva


                                                 3



voce, in the middle of the selection process, was bad and "the Commission


appears to have guided by legal malafide (sic)". It, accordingly, quashed the


select list and the appointments made on its basis and directed that a fresh


list   be   drawn   up   on   the   basis   of   the   aggregate   of   marks   obtained   by   the


candidates in the written test and the viva voce regardless of the minimum


qualifying mark prescribed by the Commission for the viva voce. It directed


the concerned authorities to complete the process within 2 months from the


date   of  the   judgment  and   till   then   permitted   the   appointees   to   continue   to


serve in their respective positions.


5.      Against the judgment of the division bench, the appeals are filed (i) by


the   candidates   (102   in   number)   who   were   appointed   as   Assistant   Public


Prosecutors on the basis of the impugned selection made by the Commission


(and   who   were   not   parties   in   the   writ   petitions,   or   the   intra   court   appeals


before the court) and (ii) by the Gujarat Public Service Commission.


6.      Before   proceeding   to   examine   the   facts   of   the   case   and   the   rival


contentions of the parties, it may be stated that on behalf of the respondents,


it was accepted that the direction by the division bench of the High Court to


draw   up   the   merit   list   ignoring   the   minimum   qualifying   mark   separately


fixed for the viva voce may not be sustainable as that would be contrary to


the statutory rules governing the selection and appointment. The only course


                                                4



left open, therefore, was to scrap the entire selection process and start from


the beginning all over again.


7.      Coming   to   the   facts   of   the   case,   it   is   interesting   to   note   how   the


process of filling up the posts of Assistant Public Prosecutor in such large


numbers was put into motion. From a limitation petition, for condoning the


inordinate  delay  of 1695 days  in filing  a State  criminal appeal,  it came  to


light that there was acute shortage of Assistant Public Prosecutors and as a


result, the functioning of the subordinate criminal courts in the State badly


suffered. The High Court took up the matter and on its initiative, the State


Government sanctioned 180 new posts of Assistant Public Prosecutors. After


due   consultation   with   the   Gujarat   Public   Service   Commission   and   the


concerned authorities of the State Government, the Advocate General of the


State,   assured   the   High   Court   that   all   the   newly   sanctioned   posts   and   the


vacancies   existing  in  the  already   sanctioned   cadre  (242  in  total)   would  be


filled up in a time bound manner on the basis of rules especially framed for


the purpose as a one time measure. The statements  made by the Advocate


General before the High Court are recorded in the order dated October 08,


2008,   passed   by   a   division   bench   of   the   High   Court   in   Criminal


Miscellaneous Application No.13937 of 2007 in Criminal Appeal No.487 of


2006. From the order of the High Court it appears that the Advocate General


                                                5



stated before the court that selection would be made on the basis of a written


test   followed  by  oral  interviews  and   minimum  qualifying   marks  would  be


fixed   for   the   tests.   The   relevant   passage   in   the   High   Court   order   is   as


follows:


        "....   Shri   Trivedi,   learned   Advocate   General,   in   consultation

        with   the   Secretary,   GPSC,   has   further   submitted   that

        approximately   three   times   of   number   of   posts   to   be   filled   in,

        starting   from   top   to   bottom,   the   applicants   will   be   called   for

        Oral  Interviews. However, minimum  qualifying  marks  will  be

        prescribed   and   the   aforesaid   will   also   be   reflected   and/or

        notified in the Advertisement....."

       

8.      The  High  Court passed  the  order   incorporating  the  statements   made


by   the   Advocate   General   and   directed   the   concerned   authorities   to   make


appointments   on   all   the   available   posts   of   Assistant   Public   Prosecutor


following the time schedule given in the order.


9.      In furtherance of the Advocate General's assurance given to the court


and   in   compliance   with   the   court's   direction   on   that   basis,   a   set   of   rules


called the Assistant Public Prosecutor, Gujarat General State Service Class II


Recruitment (Examination) Rules, 2008 (for short "the Recruitment Rules")


were framed by the State Government under the proviso to Article 309 of the


Constitution   of   India   and   published   in   the   Gujarat   Government   Gazette,


Extraordinary,   dated,   August   6,   2008.   Rule   12   of   the   Recruitment   Rules


dealing with the nature of examination provided as under:


                                              6



        "Nature of Examination

        12 (1) The   examination   shall   be   in   two   parts   as   shown   in

        Appendix. Part I shall be written examination and Part II shall

        be viva-voce and Personality Test.

        (2)     The   Commission   shall   fix   the   qualifying   marks   to   be

        obtained   by   a   candidate   in   Part-I   of   the   examination   in

        Appendix   and   shall   call   only   those   candidates   who   fulfil

        qualifying standard for Viva-voce and Personality Test.

        Provided   that   candidates   belongs   to   the   Scheduled   Castes,

        Scheduled   Tribes   or   Socially   and   Educationally   Backward

        Classes including Nomadic Tribes and Denotified Tribes, may

        be  summoned   for  viva-voce  and  Personality  Test  by  applying

        relaxed standard in Part-I of the examination if the Commission

        is   of   the   opinion   that   sufficient   number   of   candidates   from

        those communities are not likely to be called for viva-voce and

        personality   test   on   the   basis   of   the   qualifying   standard   for

        general   category  in  order   to  fill  up the  vacancies   reserved  for

        such categories.

        (3)  The   commission   shall   fix   the   qualifying   marks   to   be

        obtained   by   a   candidate   in   the   viva-voce   and   personality

        test.

        (4) The candidate shall be required to attend the written part of

        the examination  and viva-voce and personality test at his own

        expense;

        (5)   If   the   candidate,   who   is   qualified   for   the   viva-voce   and

        personality   test,   fails   to   attend   the   viva-voce   and   personality

        test, shall not be eligible for selection."

                                                                   (emphasis added)


10.     Rule  14 dealt with the result of the examination  and in sub-rule  (1)


provided as follows:


        "Result of Examination

        14(1)   After   two   stage   of   the   examination   are   over,   the

        commission shall prepare the result arranging the marks of the

        candidates seriatim according to merit taking into consideration

        the   total   marks   obtained   by   the   candidates  as   per   the

        qualifying standards fixed for the written examination and


                                                     7



         viva-voce   and   personality   test  and   shall   declare   a   list   of

         qualified candidates accordingly."

                                                                                     (emphasis added)


At  the end  of the  Recruitment  Rules   there  was an  Appendix  in two  parts.


Part I contained the details concerning the written examination which would


consist of five papers with an aggregate of 600 marks; part II provided that


there would be a viva voce and personality test of 75 marks.


11.      After   the   Recruitment   Rules   were   framed   and   notified,   the


Commission   on   October   17,   2008   issued   an   advertisement   inviting


applications for filling up 242 posts of Assistant Public Prosecutor (Class II).


Of the 242 posts available, 122 were to be filled up on open merits and the


remaining   was   reserved   for   the   different   reserved   categories.   Under   the


marginal   heading,   "Particulars   of   Examination",   it   was   stated   that   the


examination would consist of two parts, i.e., written (objective test) and oral


interview.  The  question paper of written  examination (Part  I) would be of


300 marks. In connection with the second part of the examination relating to


the oral interview it was stated as follows:


                        "PART- II     Oral Interview- 30 Marks


                  The candidate obtains minimum 105 marks in the written

         examination   i.e.   as   decided   by   the   Commission,   and   the

         candidate   who   fulfils   the   educations   qualifications,   age,

         experience,   etc.,   as   mentioned   in   the   advertisement   shall   be

         called for the oral interview in exact numbers and there shall be


                                               8



        30   marks   for   the   oral   interview.   The   final   result   of   this

        examination shall be published as per the recruitment rules.

                The   examination   is   of   objective   aptitude   type,   the

        provision of re-checking is not adopted. The final result of the

        examination shall be furnished on the basis of the total marks

        obtained in written as well as oral examination/interview....




12.     Two things are to be seen from the advertisement. One, though in the


Recruitment Rules, 600 marks were allotted for the written examination and


75 for the viva voce, in the advertisement the written examination was given


300 and viva voce 30 marks. The second, though the minimum qualifying


mark of 105 out of 300 was fixed for the written examination, no qualifying


mark was fixed separately for the viva voce as required by rule 12 (3) of the


Recruitment Rules. Nevertheless, there was a broad and general stipulation


that,   "the   final   result   of   this   examination   shall   be   published   as   per   the


recruitment rules".


13.     The first discrepancy in regard to the allotment of marks to the written


and   oral   tests   respectively,   though   not   quite   vital,   was   rectified   by   the


notification dated October 24, 2008, issued by the State Government, under


the proviso to Article 309 of the Constitution. By this notification, rule 19


was added at the end of the Recruitment Rules which reads as under:


        "19.   Notwithstanding   anything   contained   in   these   rules,   the

        competitive examination,  held by the Commission pursuant to

        the   advertisement   issued   during   the   year   2008   for   the

        recruitment to the post specified in rule 3, shall be the multiple


                                                     9



         choice objective type written examination for 300 marks from

         the subjects mentioned in Papers I, II, III, IV and V in Part I of

         the Appendix,

         Provided that

         (i)      For papers I and II of the Gujarati and English in Part I of

                  the   Appendix   respectively   except   grammar,   all   other

                  topics be deemed as excluded.

         (ii)     In Part II Viva-voce and Personality Test, the maximum

                  of 75 marks, shall be read as 30 marks and

         (iii)    The   provisions   of   rules   12,13,14   and   16   shall   apply

                  mutatis mutandis to such competitive examination"  

                                                                                   (emphasis added)


14.      The written test was held by the Commission on January 11, 2009 and


its result was published on March 20, 2009 by giving out the roll numbers


(and   not   the   names)   of   the   qualifying   candidates.   Approximately   5,550


candidates sat for the written examination out of which 790 candidates were


short-listed for being called for the oral interview. After the publication of


the result of the written test the marks obtained by the short-listed candidates


were kept in a sealed cover.


15.      At this stage, while preparations were underway for holding the viva


voce of the short-listed candidates, in the meeting held on April 22, 2009, it


was   decided   that   in   terms   of   rule   12(3)   of   the   Recruitment   Rules,   the


Commission was required to decide the minimum qualifying marks for the


viva voce. Accordingly, on April 23, 2009, the Secretary to the Commission


submitted   the   proposal   together   with   a   copy   of  the   Rules   for   order   of   the


Commission and on the same day the Commission took the decision fixing


                                                      10



10   out   of   30   as   the   minimum   qualifying   mark   for   the   viva   voce.   The


proceedings of the Commission dated April 23, 2009 read as follows:


                "The   Commission   has   taken   following   decision   after

       discussion.


                The   Commission   shall   decide   qualifying   marks   to   be

       obtained   by   the   candidate   in   interview   under   rule   12(3)   of

       Recruitment (Examination)  Rules  (Page  No.5/C) for this post.

       Accordingly, the Commission is supposed to decide minimum

       qualifying   marks   for   considering   the   candidate   successful,   in

       interview.   Hence,   after   careful   consideration   the   Commission

       decides   that   to   get   out   of   the   maximum   30   marks   of   the

       interview, 10 marks as minimum qualifying marks.


                The intimation of this decision may be given in time, to

       every   candidate   before   they   appear   in   interview.     For   this

       purpose the Commission gives its approval for procedure to be

       followed   as   per   suggestion   made   in   paragraph   No.3   shown

       against-   on   previous   page.     Further,   this   decision   may   be

       displayed   on   notice   board   in   such   a   proper   way   that   all   the

       concerned   persons   may   get   intimated.  It   may   please   be   noted

       that it may get published tomorrow.


                Sd/- Member                                      Sd/- Chairman

                [Shree Variya]                                   (Shree Bhavsar]

                     23.4.09                                             23.4.09


                                                                                      Sd/- Secretary

                                                                                           23.4.09




                                                                                      J.S./D.S.

                                                                           Sd/- (Jt.Secretary)

                                                                                      24.4.09


                The   details   to   be   displayed   on   Notice   board   as   well   as

       taken   in   to   register   in   consonance   with   the   above   decision   is

       submitted for approval.


                                               11



          1.    Following details may be displayed on notice board.


                               As per rule 12(3), the Commission has decided the

        minimum   qualifying   10   marks   out   of   30,   for   the   candidate

        appearing   in   interview   (Viva-Voce)   of   Assistant   Public

        Prosecutor Class-II.   The candidate getting less marks than the

        this   may   not   be   eligible   for   selection.     Which   may   be   please

        noted.


                  Make a note in the register as below, in which signatures

        of the candidates are being taken at the time of interview."


16.      Here it needs to be clarified that normally the Gujarat Public Service


Commission consists of a Chairperson and four members but at that time the


positions of three members were vacant and only a Chairman and a member


comprised the Commission. Hence, the proceedings are shown to have been


signed by the Chairman and one member.


17.     In accordance with the Commission's direction, the decision fixing 10


out of 30 marks as the minimum qualifying mark for the viva voce was put


up on the notice board. Further, each candidate was individually intimated


and was made to sign a declaration/consent form before going for the oral


test.   The   consent   form   bore   the   following   declaration   under   which   the


candidates were required to put their signatures:


                  "Under   recruitment   rules   12(3)   the   commission   has

        prescribed 10 qualifying marks to be obtained by candidates out

        of 30 in viva-voce test for appointment to the post of Assistant

        Public   Prosecutor   (Class   -II)   and  it   is   to   be   noted   that   the

        candidates   who   will   secure   less   than   10   marks   will   not   be


                                                    12



          eligible   for   recruitment   to   the   post   of   Assistant   Public

          Prosecutor."

                                                                                 (emphasis added)


18.       The forms signed by each of the candidates are on record.


19.       The   viva   voce   of   all   the   790   short   listed   candidates   was   held   from


April 27, 2009 to July 9, 2009. On July 15, 2009, marks of the written test of


the candidates  who were called for interview were taken out of the sealed


cover and on July 16, the Commission declared the final result as per Rule


14(1).


20.       In   the   facts   as   stated   above,   we   are   completely   unable   to   see   any


illegality in the selection process much less any bias or malice of any kind.


But on behalf of the writ petitioners-respondents, it is contended that it is a


clear   case   of   bias.   It   is   alleged   that   in   order   to   bring   in   its   favoured


candidates   the   Commission   found   it   necessary   to   exclude   a   sufficient


number of meritorious candidates by any ruse and the minimum qualifying


mark for viva voce was introduced at the last minute only for that intent and


purpose. The respondents  pointed out that the application  of the minimum


qualifying mark separately for the viva voce excluded some candidates who


would have been selected only on the strength of their marks in the written


test even though they were given nil mark in the viva voce. The respondents


cited   several   kinds   of   figures   before   the   High   Court   to   high   light   the


                                                13



"anomalies"   resulting   from   the   introduction   of   the   minimum   qualifying


mark for the viva voce. It was pointed out that 81 out of the 203 selected


candidates had got the minimum qualifying mark in the viva voce, i.e., 10


out of the total of 30; 190 candidates out of 790 called for interview got just


8 or 9 marks in the viva voce and were, thus, excluded from the final select


list;   503   candidates   out   of   the   790   called   for   interview   got   less   than   the


qualifying  mark in the viva  voce. One or two more examples  of a similar


nature were also cited by the respondents. The Division Bench of the High


Court  appears   to  have  attached   considerable  importance   to  these   so  called


anomalies and its judgment seems to have been influenced by these results.


21.     We are unable to accept or even to follow the allegation based on the


figures as cited above. It is necessary to bear in mind that no objection can


be taken to the fixing of the cut off mark separately for the viva voce as that


is the mandate of the statutory rules governing the recruitment. What alone


can be objected to is the omission to specify the cut off mark for viva voce


in the advertisement and fixing it later on. But we fail to see any connection


between the "anomalies" and the fact that the cut off mark for viva voce was


fixed at a later stage, though before the commencement of the interviews and


with due intimation to all the candidates.


                                                  14



22.     Further,   as   noted   above   the   marks   obtained   by   the   short   listed


candidates   in   the   written   test   were   kept   in   a   sealed   cover   and   those   were


taken out only after the oral interview of all the candidates was over. At the


time  a  candidate   appeared   for   the  interview   the  members   of  the   interview


board had no means  to know the mark  obtained by  him/her in the written


test.   In   such   a   situation   we   don't   see   how   it   could   be   possible   for   the


interview board to purposefully exclude a candidate by giving less than the


minimum qualifying mark for the viva voce even though he/she might have


been selected on the basis of the mark obtained in the written test alone.


23.     When   playing   around   with   numbers   one   is   quite   likely   to   come   up


with some figures that might appear unusual and unexpected but that alone


will   not   make   out   a   case   of   bias   or   legal   malafide   (See   the   decision   by   a


bench   of   four   judges   of   this   Court   in  Ashok   Kumar   Yadav  v.   State   of


Haryana, (1985) 4 SCC 417, paragraph 21). In the facts of the case as noted


above   we   are   satisfied   that   the   examples   cited   by   the   respondents   do   not


show that there was any arbitrariness or play of bias in giving marks to the


candidates   in   the   viva   voce   or   that   there   was   any   flaw   in   the   selection


process making it liable to be struck down.


24.     Mr.   Viswanathan,   senior   advocate,   appearing   for   the   respondents


submitted that the Advocate General had undertaken before the High Court


                                                 15



that the qualifying marks for both the written test and the viva voce would


be published in the advertisement. He further submitted that sub-rule (2) of


rule 12 provided for fixing the minimum qualifying mark for the written test


in the same way as sub-rule (3) provided for fixing the minimum qualifying


mark for the viva voce. He argued that the provisions of sub-rules (2) and (3)


of   rule   12   could   not   be   read   and   given   effect   to   differently   and   when   the


minimum   qualifying   mark   for   the   written   test   was   specified   in   the


advertisement   there   was   no   reason   for   not   indicating   the   minimum


qualifying mark for the viva voce in the advertisement itself.


25.     The   grievance   of   Mr.   Viswanathan   cannot   be   said   to   be   wholly


without substance.  It is true that the better and the more proper way to give


effect to the provision of rule 12 (3) of the Recruitment Rules was to specify


the   minimum   qualifying   mark   for   the   viva   voce   also   in   the   advertisement


itself.     But   that   was   not   done.     The   question   is   what   would   be   the


consequence of the omission and was it open to the Commission to rectify


the error by fixing the minimum qualifying mark for the viva voce later on


and giving intimation of its decision to each of the candidates appearing for


the oral interview before the beginning of the test.


26.     The Division Bench of the High Court has held that the introduction


of the minimum qualifying mark for the viva voce at the later stage in the


                                            16



selection process was not permissible and it completely vitiated the selection


process.     Mr.   Viswanathan   strongly   supports   the   view   taken   by   the   High


Court.   In support  of  its  view, the  Division  Bench  of the  High Court,  has


placed reliance on two decisions of this Court, one in K. Manjusree v. State


of Andhra Pradesh and another, (2008) 3 SCC 512 and the other  Hemani


Malhotra  v. High Court of Delhi, (2008) 7 SCC 11.   Mr. Viswanathan also


cited   before   us   the   decision   in  K.   Manjusree  and   invited   our   attention


particularly to the following passage in paragraph 33 of the judgment:


        "33.....   Where   the   rules   do   not   prescribe   any   procedure,   the

        Selection   Committee   may  also   prescribe   the   minimum   marks,

        as   stated   above.   But   if   the   Selection   Committee   wants   to

        prescribe minimum marks for interview, it should do so before

        the   commencement   of   selection   process.     If   the   Selection

        Committee   prescribed   minimum   marks   only   for   the   written

        examination, before the commencement of selection process, it

        cannot either during the selection process or after the selection

        process,   add   an   additional   requirement   that   the   candidates

        should also secure minimum marks in the interview. What we

        have found to be illegal is changing the criteria after completion

        of the selection process, when the entire selection proceeded on

        the   basis   that   there   will   be   no   minimum   marks   for   the

        interview."


27.     In   our   view,   both   the   decisions   relied   upon   in   support   of   the


respondents' case are completely distinguishable and have no application to


the facts of this case. K. Manjusree was a case of selection and appointment


to the posts of District & Sessions Judge (Grade II) in the Andhra Pradesh


Higher   Judicial   Service.     The   selection   and   appointment   to   the   post   of


                                               17



District & Sessions Judge was governed by the resolutions of the High Court


and the resolution dated November 30, 2004 decided the method and manner


of   selection.     It   resolved   to   conduct   the   written   examination   for   the


candidates for 75 marks and oral examination for 25 marks.  It also resolved


that   the   minimum   qualifying   marks   for   the   O.C.,   B.C.,   S.C.   and   S.T.


candidates   would   be   as   prescribed   earlier.   Following   the   written


examination,   the   qualified   candidates   were   called   for   interview   before   a


committee of five judges. After the interview, the select committee of five


judges prepared a merit list on the basis of the aggregate of marks obtained


by each of the candidates in the written test and the oral interview.  At that


stage, the select committee did not apply any cut off mark for the viva voce.


The   list   prepared   by   the   select   committee   was   approved   by   the


administrative   committee   and   it   finally   came   before   the   Full   Court   of   the


High   Court.     The   Full   Court   decided   to   have   the   matter   reviewed   by   a


committee of two judges constituted by the Chief Justice of the High Court.


It   was   at   that   stage   that   the   committee   of   two   judges   decided   that   there


should have been a minimum qualifying mark for the oral interview as well,


in the same ratio as prescribed for the written test.  It, accordingly, decided


that only those candidates who secured the minimum of 12.5 out of 25 (for


the open category), 10 marks (for B.C. candidates), and 8.75 marks (for SC


                                              18



and   ST   candidates)   would   be   considered   as   having   succeeded   in   the


interview. The decision of the committee of two judges was approved by the


Full Court and consequently, the earlier list prepared by the select committee


and   approved   by   the   administrative   committee   was   revised   and   the   final


recommendation for appointment was made by the High Court on the basis


of the revised merit list.   It was in those facts that this Court held that the


introduction of the cut off mark for the viva voce after the oral interviews


were over amounted to changing the rules of the game in mid-play and was


not   permissible   in   law.     The   passage   from   paragraph   33   of   the   judgment


relied upon by the respondents must be understood in the facts of the case.


28.     The decision in  Hemani Malhotra  is equally inapplicable to the facts


of the case. Hemani Malhotra was a case of selection and appointment to the


vacant posts in the Delhi Higher Judicial Service and those appointments too


were   governed   by   the   administrative   resolutions   of   the   High   Court.     For


filling   up   the   posts,   the   Registrar   General   of   the   High   Court   issued   an


advertisement   that   laid   down   that   the   minimum   qualifying   mark   in   the


written   examination   would   be   55%   for   general   candidates   and   50%   for


scheduled castes and scheduled tribes candidates.  In the advertisement there


was no indication at all about any cut off mark for the oral interview.  After


the written examination, no result was published giving out the names or roll


                                                 19



numbers   of   the   qualified   candidates   but   the   successful   candidates   were


called to appear for the oral interview individually through letters. After the


date fixed for oral interview was postponed three or four times the selection


committee   of   the   High   Court   resolved   that   it   was   desirable   to   prescribe   a


minimum mark for the viva voce and referred the matter to the Full Court.


The Full Court accepted the suggestion  made  by the select committee  and


resolved that for recruitment to the Delhi Higher Judicial Service from the


Bar the minimum qualifying mark in the viva voce will be 55% for general


candidates   and   50%   for   scheduled   castes   and   scheduled   tribes   candidates.


After   the   decision,   interviews   were   held   but   significantly   the   candidates


were   kept   in   dark   about   the   decision   fixing   the   cut   off   mark   for   the   viva


voce.     The   High   Court   prepared   the   select   list   applying   the   cut   off   mark


fixed for viva voce but the candidates who appeared for the oral interviews


still did not know why they were not selected despite getting higher marks.


It was only through applications made under the Right to Information Act


that   some   of  the   unselected   candidates   were   able   to  gather   that   their   non-


selection   was  on account  of their  failure  to  secure  the cut  off  mark  in the


viva   voce   and   then   the   selection   was   challenged   before   the   Court.     It   is


evident   that   the   facts   of   the   case   in   hand   are   entirely   different   and   the


decision in Hemani Malhotra has no application to this case.


                                               20



29.     Mr.   Viswanathan   also   relied   upon   the   decision   of   this   Court   in


Ramesh   Kumar  v.  High   Court   of   Delhi   and   another,   (2010)   3   SCC   104.


This   decision   also   has   no   relevance   to   the   facts   of   the   present   case.   In


Ramesh Kumar, what this Court said is that for appointment to the judicial


services,  in the absence of any contrary provision in the relevant rules


Delhi High Court should not have fixed any minimum qualifying marks for


the viva voce because this Court had accepted Justice Shetty Commission's


report   which   had   prescribed   not   to   have   any   cut   off   mark   for   interview.


Actually   what   is   said   in   paragraph   15   of   the   judgment   in  Ramesh   Kumar


demolishes the case of the respondents:


        "15.    Thus,   the   law   on   the   issue   can   be   summarised   to   the

        effect that  in case the statutory rules prescribe a particular

        mode   of   selection,   it   has   to   be   given   strict   adherence

        accordingly.   In   case,   no   procedure   is   prescribed   by   the   rules

        and   there   is   no   other   impediment   in   law,   the   competent

        authority   while   laying   down   the   norms   for   selection   may

        prescribe   for   the   tests   and   further   specify   the   minimum

        benchmarks for written test as well as for viva voce.



30.     Having, thus, made the legal position clear, the judgment in paragraph


16 went on to say:



        "16.    In   the   instant   case,   the   Rules   do   not   provide   for   any

        particular   procedure/criteria   for   holding   the   tests   rather   it

        enables the High Court to prescribe the criteria.   This Court in

        All India Judges' Assn. (3)  v.  Union of India,  [(2002) 4 SCC

        247],  accepted   Justice   Shetty   Commission's   Report   in   this

        regard which had prescribed for not having minimum marks for


                                              21



        interview.  The Court further explained that to give effect to the

        said   judgment,   the   existing   statutory   rules   may   be   amended.

        However, till the amendment is carried out, the vacancies shall

        be filled as per the existing statutory rules. A similar view has

        been   reiterated   by   this   Court   while   dealing   with   the

        appointment   of   Judicial   Officers   in  Syed   T.A.   Naqshbandi  v.

        State of J&K  [(2003) 9 SCC 592]  and  Malik Mazhar Sultan

        (3)  v.  U.P. Public Service Commission  [(2008) 17 SCC 703].

        We have also accepted the said settled legal proposition while

        deciding the connected cases i.e.  Rakhi Ray  v.  High Court of

        Delhi [(2010) 2 SCC 637] vide judgment and order of this date.

        It has been clarified in  Rakhi Ray that where statutory rules do

        not   deal   with   a   particular   subject/issue,   so   far   as   the

        appointment   of   the   Judicial   Officers   is   concerned,   directions

        issued by this Court would have binding effect."


31.     Now coming back to the facts of the case in hand, though the rules


framed under Article 309 of the Constitution governing the selection process


mandated   that   there   would   be   minimum   qualifying   marks   each   for   the


written test and the oral interview, the cut off mark for viva voce was not


specified in the advertisement.  In view of the omission, there were only two


courses open. One, to carry on with the selection process and to complete it


without fixing any cut off mark for the viva voce and to prepare the select


list on the basis of the aggregate of marks obtained by the candidates in the


written test and the viva voce. That would have been clearly wrong and in


violation of the statutory rule governing the selection. The other course was


to fix the cut off mark for the viva voce and to notify the candidates called


for   interview   about   it.     This   is   the   course   that   the   Commission   followed.


                                               22



This was in compliance with the rules and it did not cause any prejudice to


any   candidate   either.   We,   thus,   see   no   illegality   at   all   in   the   selection


process.


32.     In   light   of   the   discussions   made   above   we   find   that   the   Division


Bench of the High Court took a wrong view of the matter and its judgment


and order are quite unsustainable. We, accordingly, set aside the impugned


judgment and dismiss all the writ petitions filed by the respondents before


the Gujarat High Court.


33.     In the result, the appeals are allowed but with no order as to costs.





                                                               .........................................J

                                                                (AFTAB ALAM)





                                                               .........................................J

                                                                (R.M. LODHA)


New Delhi,

July 5, 2011.

police custody - 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

                                                                       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


                                                2




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


                                               3




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,


                                                4




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.


                                               5




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


                                               6




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


                                                 7




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?


                                                8




        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


                                               9




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


                                       10




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."


                                              11





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.


                                       12




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


                                               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

        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


                                                14




        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


                                              15




        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


                                               16




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."


                                                 17




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


                                               18




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.