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48. As regards the part of prayer clause (h) that the statement of the Applicant be recorded in the presence of his advocate and the advocate be permitted to be present at the time of questioning at a distance, the Applicant relied upon the decision of the Supreme Court in the case of Birendra Kumar Pandey v. Union of India 17. In this decision, the Supreme Court observed thus:

"The prayer has been opposed by the learned Additional Solicitor General, Mr.P.P. Malhotra, who has brought to our notice the decision of a Three Judges Bench in the case of Poolpandi and Others v. Superintendent, Central Excise and Others (1992) 3 SCC 259. Mr. Malhotra pointed out that the very first paragraph of the said judgment mentions that the common question arising in the said case before their Lordships was the stand taken by the petitioners that they were entitled to-the presence of their lawyers when they were being questioned during the interrogation under the provisions of the Customs Act, 1962, or the Foreign Exchange Regulation Act, 1973. Their Lordships had noticed the difference of opinion of different High Courts in this connection and had rejected the submission made on behalf of the petitioners therein, that they were entitled to have their lawyers present at the time of interrogation. Such prayer, therefore, was disallowed.

17 WP (Crl.) No.28/2012 decided on 16 April 2012 skn 49 3_APL-625.2021.edited 2.doc Mr. Malhotra has also drawn our attention to the decision in Senior Intelligence Officer, Directorate of Revenue Intelligence v. Jugal Kishore Samra (2011) 12 SCC 362, wherein the decision in Poolpandi's case (supra) was also referred to and, ultimately, having regard to the facts of the of the case, a two-Judge Bench of this Court directed as follows:

In our view, the decision which was rendered in Poolpandi's case (supra) by a Bench of Three Judges, was in the context of the direct involvement of the learned counsel during the actual interrogation where the lawyer assumed an active role during the interrogation. On the other hand, the order that has been sought, as passed in various matters, does not contemplate such an eventuality. In fact, in terms of the orders which we have earlier passed, a lawyer has no role to play whatsoever during the interrogation, except to be at a distance beyond hearing range to ensure that no coercive methods were used during the interrogation.

The criminal miscellaneous petition is disposed of accordingly."

The learned ASG sought to contend that the order passed in the case of Birendra Kumar Pandey is per incuriam in the light of the decision of Poolpandi v. Superintendent, Central Excise18 which is a decision of three learned Judges in which the request for presence of the lawyer was rejected. The learned ASG submitted that the decision in the case of Poolpandi was followed in the case of Senior Intelligence Officer, Directorate of Revenue Intelligence v. Jugal Kishore Samra19. The learned ASG submitted that the decision in the case of Birendra Kumar Pandey incorrectly records that Poolpandi was a case of direct involvement during actual interrogation and, thus, the decision in the case of Poolpandi being of three learned Judges, this Court should follow the same. It is, however, needs to be noted that the decision in the case of Birendra Kumar Pandey has referred to the decision of three learned Judges in Poolpandi and the judgment in the case of Jugal Kishore Samra. After considering both the decisions, the Supreme Court, in the case of Birendra Kumar Pandey, has directed that the advocate for the petitioner therein should be 18 (1992) 3 SCC 259 19 (2011) 12 SCC 362: (2012) 1 SCC (Cri) 573 skn 51 3_APL-625.2021.edited 2.doc allowed to remain present during the questioning, but he will be made to sit at a distance beyond the hearing range but within a visible range.