Judgment This petition has been filed under Sec.482, Cr.P.C., by the petitioners, Paradesi and Arumugham, to set aside the order of the learned Sessions Judge, Cuddalore dated 17.1.1986 passed in Crl.M.P. No.2032 of 1985, setting aside the order dt.31.10.1985 passed by the Judicial First Class Magistrate, Chidambaram, in Crl.M.P. No.4466 of 1985, in so far as it relates to the permission granted to the petitioners to have the presence 6f their counsel on 14.11.1985 before the respondent herein) while granting bail to the petitioners. 2. The petitioners herein surrendered before the Judicial First Class Magistrate, Chidambaram on 29.10.1985 and filed Crl.M.P.No.4466 of 1985. Aggrieved by the direction given by the Judicial First Class Magistrate, Chidambaram, permitting the petitioners herein to have the presence of a lawyer while appearing before the respondent herein on 14.11.1985, the respondent herein preferred Crl.M.P.No.2032 of 1985 before the learned Sessions Judge, Cuddalore under Sec.439(1)(b), Cr.P.C. The contention of the respondent herein before the Sessions Court is, that the respondent is empowered to make an enquiry under the provisions of Sec.107 of the Customs Act, 1962 even on suspicion and during such enquiry the petitioners herein are not the accused persons and as such not entitled to have the presence of an Advocate during such enquiry and that, therefore, the order passed by the learned Judicial First Class Magistrate on 31.10.1985 giving permission to the petitioners herein to have the presence of a counsel during an enquiry, in pursuance of any summons issued under Sec.107 of the Customs Act, is not correct. Learned Sessions Judge, after examining the various decisions cited before him, accepted the contention of the respondent herein and on that ground negatived the permission granted to the petitioners to have the presence of their lawyer during the enquiry. It is to quash that portion of the order passed by the learned Sessions Judge, this petition has been filed. 3. Learned counsel for the petitioners contended that the denial of the right to the petitioners herein to have a counsel for their own during an enquiry under Sec.107 of the Customs Act is opposed to Art.22(1) of the Constitution as well as to the provisions of Secs.108 and 146-A of the Customs Act. 3. Learned counsel for the petitioners contended that the denial of the right to the petitioners herein to have a counsel for their own during an enquiry under Sec.107 of the Customs Act is opposed to Art.22(1) of the Constitution as well as to the provisions of Secs.108 and 146-A of the Customs Act. His further contention is that the denial of the petitioners to have an assistance of a counsel during an enquiry conducted under Sec.107 of the Customs act is contrary to the judgment of the Delhi High Court reported in K.T. Advani, New Delhi v. State, New Delhi, 1985 Crl.L.J. 1325 I find no force in the contention of the learned counsel for the petitioners. Provision of Sec.146 of the Customs Act which empowers a person who is entitled or required to appear before an Officer of Customs or the Appellate Tribunal in connection with any proceedings under the said Act, to have an authorised representative, including that of a legal practitioner, will not apply to a person who is summoned to appear before any Gazetted Officer of Customs under the provisions of Sec.108 of the Customs Act. 5. Learned counsel for the petitioner and the respondent have agreed that the petitioner herein was called upon for an enquiry under Sec.108 of the Customs Act, hereinafter referred to as the Act and not for an enquiry under Sec.107 of the Act. If that is so, the question that arises for consideration in this petition is whether the petitioner is entitled to have the assistance of an authorised representative during the enquiry under Sec.108 of the Act as contemplated under Sec.146-A (1) of the Act. Sec.146-A of the Act runs as follows: "Any person who is entitled or requited to appear before an officer of Customs or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under Sec.108 to attend personally for examination on oath or affirmation may, subject to the other provisions of this section, appear by an authorised representatives“. It may be seen that under the aforesaid section, an authorised representative includes any legal practitioner who is entitled to practice in any Civil Court in India arid as such the contention of the learned counsel for the petitioner is that the petitioner is entitled to have the assistance of a legal practitioner during an enquiry under Sec.108 of the Act. I find there is no force in the contention, because Sec.146-A gives such an assistance to a person who is called in connection with any proceedings under the Act, otherwise than when required under Sec.108 of the Act. A bare reading of Sec.146-A shows that a person is entitled to appear before an officer of Customs or the Appellate Tribunal in connection with any proceedings under the Act either personally or can appear by an authorised representative otherwise than when required under Sec. 108 of the Act to attend personally for examination on oath or affirmation. Sec. 146-A is subject to Sec.108(3) of the Act, wherein, a discretionary power is given to a Gazetted Officer of Customs, to summon any person whose attendance, he considers necessary either to give evidence or to produce a document or any other thing in any enquiry and such a person so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct. Hence, it cannot be stated that a person summoned to appear for an enquiry under Sec.108 of the Act is entitled to have the assistance of an authorised representative in that enquiry as a matter of right. Sec.30 of the Advocates Act also will not apply as it has not been brought into force. The authority referred to above even though refers to Sec.40 of the Foreign Exchange Regulation Act (Act 46 of 1973). Sec.108 of the Act is in pari materia with the said provisions of the Foreign Exchange Regulation Act. With reference to that, the Delhi High Court in K.T. Advani, New Delhi v. State, New Delhi, 1985 Crl.L.J. 1325, has observed in paragraph 6 as follows: ”The question as to the presence of counsel in an enquiry or investigation under the Foreign Exchange Regulation Act has three distinct facets. One facet is the right of the suspect to the presence of counsel of his choice either as of right, privilege or part of a procedural safeguard flowing from or based on any constitutional or statutory mandate. One facet is the right of the suspect to the presence of counsel of his choice either as of right, privilege or part of a procedural safeguard flowing from or based on any constitutional or statutory mandate. The other aspect of the presence of counsel at such a stage, which would be independent of any constitutional or statutory right either of the suspect or of the counsel, but is based on an extension of the requisite of a “just and fair” procedure in the conduct of any such enquiry or investigation and may partake the nature of a judicial concession, as it were, to a suspect in the anxiety to ensure that while the suspect must assist in the process of enquiry or investigation, appropriate safeguards must be built into any such obligation which may at the same time ensure that the suspect is dealt with in a human manner, strictly in accordance with the letter and spirit of the law and Is not subjected to physical or mental, torture, harassment, Inconvenience, pressure or to any other adverse circumstances which may create an adverse environment for the enquiry or investigation and enable the State to take undue and unfair advantage of the legal constraint in which the law places the suspect. The third facet has relation to the right or prerogative of a legal practitioner, as distinct from the fight of a person whom he may represent to appear in any Court or in any judicial proceedings or before any officer charged with the duty to hold an enquiry or investigation.“ Having observed like this, the same Court observed as follows in paragraph 22 of its judgment at page 1340: ”There can therefore, be no doubt that in the existing dispensation, such a person is not entitled to invoke the rule against self-incrimination and there is no option but to hold that the legislature in its wisdom, apparently having regard to the peculiar characteristics and problems of smuggling and preservation of Foreign Exchange, thought that such cases constitute a peculiar class by themselves which would justify a differential treatment and, therefore, made a deliberate departure in providing more stringent and unfavourable procedure to arrive at satisfaction if the person suspected of the commission of offences under these statutes had in fact been involved in their violation or not. There can, therefore, be no escape from the conclusion that the privileges, rights and safeguards which have specifically or by necessary implication been denied by the legislature to such persons, would not be available to them, whatever may be the other consequences of providing a completely divergent procedure. A faint attempt was made on behalf of the counsel for the petitioners to urge that inasmuch as the safeguards, privileges and rights of an "accused person" in the course of investigation under the Code of Criminal Procedure were extended by the Supreme Court in the case of Nandhi Satpathy v. P.L.Dani, (1978)2 S.C.C. 424 : 1978 S.C.C.(Crl.) 236: A.I.R. 1978 S.C. 1025: 1978 Crl.L.J. 968, even to a "suspect" or what they described as a "candidate for such accusation" with reference to allegations which did not then form part of the first information report but in respect of which a case may eventually be registered, such a protection should be extended to a suspect under these statutes even before a formal accusation. It is no doubt true that in relation to these allegations, the petitioner in that case stood in the same position as a person against whom no formal accusation had been made but the protection against self-incrimination was not conceded in "that case in relation to these allegations on the basis of the constitutional guarantee against self-incrimination but on the basis of clear provision of Sub-sec.(2) of Sec.161, and this section makes no distinction if a person is a mere witness, a suspect or an accused or a person though then a mere witness or a suspect who may eventually be accused. The protection of Sub-sec.(2) of Sec.161 would, however, obviously not be available to the petitioners in the present case because at the present stage of investigation under the Foreign Exchange Regulations Act, the Code is inapplicable, except to the limited extent It has been made applicable by that Act for the purpose of remand and/or ball, a question with which I am not concerned in the present case and which has otherwise presented considerable difficulty and led to ah anamalous position." Again at paragraph 24, it is observed as follows: "In the constitutional scheme obtaining in India, and as an essential ingredient of the concept of rule of law embodied in it. State action is by and large subject to judicial review and legislative action is no exception. It is also well recognised, as an essential attribute of rule of law, that all state action must not only conform to the constitutional and statutory constraints but it must also be "just, fair and reasonable". In this sense, judicial control of legislative action is not confined to the traditional limit of legislative competence but extends to a judicial examination of the reasonableness of legislative action. In the context of Arts.14 and 21 of the Constitution, any procedure prescribed for deprivation of personal liberty must satisfy the constitutional requirement of being just, fair and reasonable. Whether a procedure prescribed by law is just, fair and reasonable in the context of the over all circumstances, is in the ultimate analysis, to be judicially ruled, even though the legislative view with regard to the criteria would not be substituted by the Court for its own if it is based on a possible view of the matter. It is no doubt true that some of the basis safeguards, rights and privileges of an accused person should not be dispensed with, however grave may be the charge forming subject-matter of any enquiry, investigation or trial and Courts have since the days of the Courts of star-chamber zealously guarded and preserved these safeguards, rights and privileges, even at the worst of times. At the same time, Courts have not lagged behind in realising the deleterious effect of smuggling and violations of foreign exchange on the national economy and the peculiar difficulties and problems in tracking down smugglers and those involved in the violation of foreign exchange laws. Time and again, Courts, including the highest Court, have given expression to the peculiar problems of this class of offences and have justified departure from the normal law in dealing with this class of people. Time and again, Courts, including the highest Court, have given expression to the peculiar problems of this class of offences and have justified departure from the normal law in dealing with this class of people. Courts have thus found valid and justified some of the unusual provisions in one or the other of these statutes, whether with regard to onus of proof or with regard to departure from the normal law with regard to admissibility of confessional statements, constitutional protection against self-incrimination, and certain other matters, when the legislature in its wisdom introduced divergent procedures making a complete departure from the then established norms in the ordinary criminal laws, it would be presumed that in the totality of the circumstances, the legislature though such procedure to be just, fair and reasonable in the peculiar circumstances, even though not necessarily so in the context of the known criteria. While there is no doubt that the provisions in question put a suspect in a disadvantageous position, as compared to a person accused of any other offence, the legislative inference that the procedure is nevertheless just, fair and reasonable would be a possible view to take and if that be so, the Court would be reluctant to interfere whatever may be the Court’s own inclinations. Where the question is a procedure embodied in a statute is just, fair or reasonable or not in the totality of a given situation, it is neither possible nor proper for the Court to weigh the possible view in a fine scale and to substitute Court’s own view for that of the legislature. For all these reasons, it would not be possible to either void the provisions or to read into it the safeguards, rights and privileges, which have been impliedly denied to a suspect. For all these reasons, it would not be possible to either void the provisions or to read into it the safeguards, rights and privileges, which have been impliedly denied to a suspect. It would however, be reasonable to read into the provision an implied duty to warn the suspect who is sought to be examined, that if he made a statement it would be used against him." From the aforesaid, it is made clear that Sec.146-A of the Act is subject, to Sec.108(3) of the said Act, wherein a discretionary power is given to a Gazetted Officer of Customs, to summon any person whose attendance, he considers necessary either to give evidence or to produce a document or any other thing in any enquiry and such a person so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct. The words, "as such officer may direct" gives a discretionary power to the Gazetted Officer. As such, I find that the petitioner is not entitled to have the assistance of an authorised representative in that enquiry as a matter of right. 6. The need to have a counsel in an enquiry under the Act has arisen as a result of an apprehension, that the officers functioning under the Act may coerce the persons so summoned or adopt third degree methods to extract statements from them and that their statements eventually will be used against them. But it is that pious hope of this Court that the officers concerned would exercise their discretion in favour of a person who has been so summoned to appear before such an Officer, in case the person summoned, wants to have the presence of a lawyer by his side, so that the statements recorded from such persons may not be questioned on the ground that it was not recorded voluntarily, that they were obtained under duress by adopting third degree methods and that, therefore, such statements should not be given any credence in any proceedings. It may be noticed that this is hot the first occasion that persons summoned under Sec.108 of the Act have approached not only this Court but also other High Courts seeking assistance to have a lawyer with them during the enquiry, on the ground that the officers functioning under the Act after summoning a person resort to use third degree methods and obtain statements to suit the convenience of the officers. To ensure that the person so summoned is dealt with in a human manner strictly in accordance with the letter and spirit of the law and is not subjected to physical or mental torture, harassment, inconvenience, pressure or to any other adverse circumstances which may create an adverse environment for the enquiry or investigation and enable the State to take undue and unfair advantage of the legal constraint in which the law places the suspect, it would be safe for the Department to permit the presence of lawyers during such examination or interrogation so as to counter-act any allegation that may be made by such persons in a competent Court of law to the effect that their statements have been obtained by coercion as well as by adopting third degree methods. Further, science has advanced to such an extent to detect any type of crimes now-a-days. In case the officer feels that the presence of an Advocate is not conducive, he could atleast use a tape-recorder for recording the statement of a person summoned, so as to avoid any criticism from the persons summoned, that their statements have been obtained under duress or by coercion. For the aforesaid reasons, I find no merit in the petition and the petition is dismissed.