Full Judgment Text
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CASE NO.:
Appeal (crl.) 311 of 2002
PETITIONER:
Directorate of Revenue & Anr
RESPONDENT:
Mohammed Nisar Holia
DATE OF JUDGMENT: 05/12/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO.311 OF 2002
S.B. Sinha, J.
1. Interpretation of the provisions of Sections 42 and 43 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (NDPS Act) calls for our
consideration in this appeal which has been filed by the Directorate of
Revenue against the respondent herein aggrieved by and dissatisfied with a
judgment and order dated 19 and 20 December, 2000 passed by a learned
Single Judge of the High Court of Judicature at Bombay in Criminal Appeal
No.462 of 1999 whereby and whereunder the judgment of conviction and
sentence passed by a Special Judge at Mumbai in NDPS Special Case
No.221 of 1997 was reversed.
2. An information was received in the office of the appellant on
23.1.1997 that one person staying in Room No.305 or 306 at Hotel Kalpana
Palace, Grant Road, Mumbai was in possession of a fax copy of
consignment note under which Mandrex tablets were being transported from
Delhi to Mumbai. The said information was passed on to PW-1, Parmar.
He reduced the same in writing. He in turn passed it placing same by
reducing it to writing before A.D. Patekar, Senior Intelligence Officer (PW-
10) allegedly as advised by Assistant Director, Atul Dixit, Assistant
Director. PW-1 along with two other officers, namely, Dhani and Petkar
visited the said hotel. They came to know that the accused was staying in
Room No.306. Two of the employees of the said hotel were asked to be
panch witnesses. The door of the said room was knocked; Appellant
opened it. He allegedly was given an option to get himself searched in
presence of a Gazetted Officer or a Magistrate. He opted for the former. He
was searched by the said officers. A sum of Rs.4,25,000/- in cash and a fax
copy of a receipt of Green Carriers from Delhi showing the consignment of
medicine was found in the said room. A xeroxed copy of the said fax
message was retained.
3. It appears that the statement of the accused was also recorded in terms
of Section 67 of the Act. The consignment arrived as per the said receipt
within a couple of days. Respondent herein was arrested on 27th January,
1997, inter alia, relying on or on the basis of recovery of the said fax
message which was marked as Exhibit-8 and the purported xerox copy
thereof which was marked as Exhibit-8A.
4. The learned Trial Judge relying on the provisions of Section 66 of the
NDPS Act held the respondent guilty of commission of an offence under
Section 8(c), 22 and 29 of the NDPS Act. He was not provided any
opportunity to be heard on the quantum of sentence. The minimum sentence
of 10 years and a fine of Rs.1,00,000/- was imposed on him.
5. On an appeal having been preferred against the said judgment of
conviction and sentence, the High Court, however, without going into the
other question, opined that as the statutory requirements of Section 42 of the
Act had not been complied with, the judgment of the Trial Court could not
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be sustained, holding :
"As observed earlier though the information seems
to have been received by the office of DRI, it was
not reduced to writing by the officer who received
it but by the PW-1, Parmar who was later on
conveyed the message by the office. Thus, there
was no compliance to Section 42(1) of the Act."
6. The High Court, in arriving at the said finding, principally relied upon
the decisions of this Court in State of Punjab v. Balbir Singh [AIR 1994 SC
1872]; Karnail Singh v. State of Rajasthan [(2000) 7 SCC 632]; and Abdul
Rashid Ibrahim Mansuri v. State of Gujarat [2000 AIR SCW 375] where the
provisions of Section 42 were held to be mandatory in nature.
7. Mr. Ashok Bhan, learned counsel appearing on behalf of the
appellant, in support of this appeal, inter alia, would submit that as a hotel is
a public place within the meaning of Section 43 of the Act, it was not
necessary to comply with the provisions of Section 42 thereof.
8. Mr. Harinder Mohan Singh, learned amicus appearing on behalf of the
Respondent, however, would support the judgment.
9. NDPS Act is a penal statute. It invades the rights of an accused to a
large extent. It raises a presumption of a culpable mental state. Ordinarily,
even an accused may not be released on bail having regard to Section 37 of
the Act. The Court has the power to publish names, address and business
etc. of the offenders. Any document produced in evidence becomes
admissible. A vast power of calling for information upon the authorities has
been conferred by reason of Section 67 of the Act.
10. Interpretation and/or validity in regard to the power of search and
seizure provided for under the said Act came up for consideration in Balbir
Singh’s case (supra), wherein it was held :
"11. It is thus clear that by a combined reading of
Sections 41, 42, 43 and 51 of the NDPS Act and
Section 4 Cr. PC regarding arrest and search under
Sections 41, 42 and 43, the provisions of Cr. PC
namely Sections 100 and 165 would be applicable
to such arrest and search. Consequently the
Principles laid down by various courts as discussed
above regarding the irregularities and illegalities in
respect of arrest and search would equally be
applicable to the arrest and search under the NDPS
Act also depending upon the facts and
circumstances of each case.
12. But there are certain other embargos envisaged
under Sections 41 and 42 of the NDPS Act. Only a
magistrate so empowered under Section 41 can
issue a warrant for arrest and search where he has
reason to believe that an offence under Chapter IV
has been committed so on and so forth as
mentioned therein. Under Sub-section (2) only a
Gazetted Officer or other officers mentioned and
empowered therein can give an authorization to a
subordinate to arrest and search if such officer has
reason to believe about the commission of an
offence and after reducing the information, if any
into writing. Under Section 42 only officers
mentioned therein and so empowered can make the
arrest or search as provided if they have reason to
believe from personal knowledge or information.
In both these provisions there are two important
requirments. One is that the Magistrate or the
Officers mentioned therein firstly be empowered
and they must have reason to believe that an
offence under Chapter IV has been committed or
that such arrest or search was necessary for other
purposes mentioned in the provision. So far as the
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first requirement is concerned, it can be seen that
the Legislature intends to only certain Magistrates
and certain Officers of higher rank and empowered
can act to effect the arrest or search. This is a
safeguard provided having regard to the deterrent
sentences contemplated and with a view that
innocent persons are not harassed. Therefore if an
arrest or search contemplated under these
provisions of NDPS Act has to be carried out, the
same can be done only by competent and
empowered Magistrates or Officers mentioned
thereunder."
11. Power to make search and seizure as also to arrest an accused is
founded upon and subject to satisfaction of the officer as the terms "reason
to believe" have been used. Such belief may be founded upon secret
information that may be orally conveyed by the informant. Draconian
provision which may lead to a harsh sentence having regard to the doctrine
of ’due process’ as adumbrated under Article 21 of the Constitution of India
require striking of balance between the need of law and enforcement thereof,
on the one hand, and protection of citizen from oppression and injustice on
the other.
12. This Court in Balbir Singh (supra) referring to Miranda v. Arizona
[(1966) 384 US 436] while interpreting the provisions of the Act held that
not only the provisions of Section 165 of the Code of Criminal Procedure
would be attracted in the matter of search and seizure but the same must
comply with right of the accused to be informed about the requirement to
comply with the statutory provisions.
13. Requirements of Section 42 was read into Section 43 of the NDPS
Act. A somewhat different view, however, was taken subsequently.
Decisions were rendered opining that in conducting search and seizure in
public place or a moving vehicle, provisions appended to sub-section (1) of
Section 42 would not be attracted. Decisions were also rendered that in such
a case even sub-section (2) of Section 42 need not be complied with.
14. Section 43, on plain reading of the Act, may not attract the rigours of
Section 42 thereof. That means that even subjective satisfaction on the part
of the authority, as is required under sub-section (1) of Section 42, need not
be complied with, only because the place whereat search is to be made is a
public place. If Section 43 is to be treated as an exception to Section 42, it is
required to be strictly complied with. An interpretation which strikes a
balance between the enforcement of law and protection of the valuable
human right of an accused must be resorted to. A declaration to the effect
that the minimum requirement, namely, compliance of Section 165 of the
Code of Criminal Procedure would serve the purpose may not suffice as
non-compliance of the said provision would not render the search a nullity.
A distinction therefor must be borne in mind that a search conducted on the
basis of a prior information and a case where the authority comes across a
case of commission of an offence under the Act accidentally or per chance.
It is also possible to hold that rigours of the law need not be complied with
in a case where the purpose for making search and seizure would be
defeated, if strict compliance thereof is insisted upon. It is also possible to
contend that where a search is required to be made at a public place which is
open to the general public, Section 42 would have no application but it may
be another thing to contend that search is being made on prior information
and there would be enough time for compliance of reducing the information
to writing, informing the same to the superior officer and obtain his
permission as also recording the reasons therefor coupled with the fact that
the place which is required to be searched is not open to public although
situated in a public place as, for example, room of a hotel, whereas hotel is a
public place, a room occupied by a guest may not be. He is entitled to his
right of privacy. Nobody, even the staff of the hotel, can walk into his room
without his permission. Subject to the ordinary activities in regard to
maintenance and/or house keeping of the room, the guest is entitled to
maintain his privacy. The very fact that the Act contemplated different
measures to be taken in respect of search to be conducted between sunrise
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and sunset, between sunset and sunrise as also the private place and public
place is of some significance. An authority cannot be given an untrammeled
power to infringe the right of privacy of any person. Even if a statute
confers such power upon an authority to make search and seizure of a person
at all hours and at all places, the same may be held to be ultra vires unless
the restrictions imposed are reasonable ones. What would be reasonable
restrictions would depend upon the nature of the statute and the extent of the
right sought to be protected. Although a statutory power to make a search
and seizure by itself may not offend the right of privacy but in a case of this
nature, the least that a court can do is to see that such a right is not
unnecessarily infringed. Right of privacy deals with persons and not places.
15. A person, if he does not break a law would be entitled to enjoy his life
and liberty which would include the right not to be disturbed. A right to be
let alone is recognized to be a right which would fall under Article 21 of the
Constitution of India. This Court in Sharda v. Dharampal [(2003) 4 SCC
493] dealt with right of privacy to a certain extent. The question came up
for consideration in District Registrar and Collector, Hyderabad & Anr. v.
Canara Bank & Ors. [(2005) 1 SCC 496] wherein the provisions of Section
73 of the Stamp Act, as amended by the State of Andhra Pradesh, was struck
down holding :
"Once we have accepted in Gobind and in later
cases that the right to privacy deals with "persons
and not places", the documents or copies of
documents of the customer which are in a bank,
must continue to remain confidential vis-a-vis the
person, even if they are no longer at the customer’s
house and have been voluntarily sent to a bank. If
that be the correct view of the law, we cannot
accept the line of Miller 30 in which the Court
proceeded on the basis that the right to privacy is
referable to the right of "property" theory. Once
that is so, then unless there is some probable or
reasonable cause or reasonable basis or material
before the Collector for reaching an opinion that
the documents in the possession of the bank tend
to secure any duty or to prove or to lead to the
discovery of any fraud or omission in relation to
any duty, the search or taking notes or extracts
therefore, cannot be valid. The above safeguards
must necessarily be read into the provision relating
to search and inspection and seizure so as to save it
from any unconstitutionality."
16. It is not in dispute that the said Act prescribes stringent punishment.
A balance, thus, must be struck in regard to the mode and manner in which
the statutory requirements are to be complied with vis-‘-vis the place of
search and seizure.
17. This Court times without number has laid great emphasis on recording
of reasons before search is conducted on the premise that the same would the
earliest version which would be available to a court of law and the accused
while defending his prosecution. The provisions contained in Chapter IV of
the Act are a group of sections providing for certain checks on exercise of
the powers of the concerned authority which otherwise would have been
arbitrarily or indiscriminately exercised. The statute mandates that the
prosecution must prove compliance of the said provisions. If no evidence is
led by the prosecution, the Court will be entitled to draw the presumption
that the procedure had not been complied with. For the said purpose, we are
of the opinion that there may not be any distinction between a person’s place
of ordinary residence and a room of a hotel.
18. It may be placed on record that applying a sophisticated sense
enhancing technology called thermal imaging, which when kept outside the
residential house of a person to ascertain as to whether the inmate has kept
any narcotic substance or not has been held to be infringement of right of
privacy of the said person in the United States Supreme Court decision of
Danny Lee Kyllo v. United States [533 U.S. 27, 121 S.Ct. 2038, 150
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L.Ed.2d 94, 01 Cal. Daily Op. Serv. 4749, 2001 Daily Journal D.A.R. 5879,
14 Fla. L. Weekly Fed. S 329, 2001 DJCAR 2926]. The court opined that :
"(1) use of sense-enhancing technology to gather
any information regarding interior of home that
could not otherwise have been obtained without
physical intrusion into constitutionally protected
area constitutes a Fourth amendment "search,"
and (2) use of thermal imaging to measure heat
emanating from home was search."
19. In the instant case, the statutory requirements had not been complied
with as the person who had received the first information did not reduce the
same in writing. An officer who received such information was bound to
reduce the same in writing and not for the person who hears thereabout.
Furthermore, in this case, apart from proving the fax and the copy of a
challan nothing else has been proved. The fax was illegible. It allegedly
was received in the PCO run by PW-17. He could not prove the contents of
the fax. He also could not show when the same was received and from
whom. It has not been shown that the accused was the person who obtained
the said fax from PW-17. Furthermore, contents of the said documents had
not been proved. In absence of the aforementioned details, the fax being
illegible and its contents being not known, the question of the same being
admissible in evidence in terms of Section 67 of the Act would not arise.
The xeroxed copy of the said fax had not been proved in the strict sense of
the term. No secondary evidence could have been led to prove another
secondary evidence. Contents of document are required to be proved. The
contents of a document could be held to have been proved in terms of
section 66 only when the contents are decipherable and not otherwise.
20. In R.V.F. Venkatachala Gounder v. Arulmigu Viswesaraswami &
V.P. Temple [JT 2005 (11) SC 574], this Court stated :
"The learned counsel for the defendant-respondent
has relied on The Roman Catholic Mission v. The
State of Madras and Anr. in support of his
submission that a document not admissible in
evidence, though-brought on record, has to be
excluded from consideration. We do not have any
dispute with the proposition of law so laid down in
the abovesaid case. However, the present one is a
case which calls for the correct position of law
being made precise. Ordinarily an objection to the
admissibility of evidence should be taken when it
is tendered and not subsequently. The objections as
to admissibility of documents in evidence may be
classified into two classes:- (i) an objection that the
document which is sought to be proved is itself
inadmissible in evidence; and (ii) where the
objection does not dispute the admissibility of the
document in evidence but is directed towards the
mode of proof alleging the same to be irregular or
insufficient. In the first case, merely because a
document has been marked as ’an exhibit’, an
objection as to its admissibility is not excluded and
is available to be raised even at a later stage or
even in appeal or revision. In the latter case, the
objection should be taken before the evidence is
tendered and once the document has been admitted
in evidence and marked as an exhibit, the objection
that it should not have been admitted in evidence
or that the mode adopted for proving the document
is irregular cannot be allowed to be raised at any
stage subsequent to the marking of the document
as an exhibit. The later proposition is a rule of fair
play. The crucial test is whether an objection, if
taken at the appropriate point of time, would have
enabled the party tendering the evidence to cure
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the defect and resort to such mode of proof as
would be regular. The omission to object becomes
fatal because by his failure the party entitled to
object allows the party tendering the evidence to
act on an assumption that the opposite party is not
serious about the made of proof. On the other
hand, a prompt objection does not prejudice the
party tendering the evidence, for two reasons;
firstly, it enables the Court to apply its mind and
pronounce its decision on the question of
admissibility then and there; and secondly, in the
event of finding of the Court on the mode of proof
sought to be adopted going against the party
tendering the evidence the opportunity of seeking
indulgence of the Court for permitting a regular
mode or method of proof and thereby removing the
objection raised by the opposite party, is available
to the party leading the evidence. Such practice
and procedure is fair to both the parties. Out of the
two types of objections, referred to hereinabove in
the later case, failure to raise a prompt and timely
objection amounts to waiver of the necessity for
insisting on formal proof of a document, the
document itself which is sought to be proved being
admissible in evidence. In the first case,
acquiescence would be no bar to raising the
objection in superior Court."
21. In Narayanaswamy Ravishankar v. Asstt. Director, Directorate of
Revenue Intelligence [(2002) 8 SCC 7], while dealing with search and
seizure at a public place, this Court opined :
"In the instant case, according to the documents on
record and the evidence of the witnesses, the
search and seizure took place at the airport which
is a public place. This being so, it is the provisions
of Section 43 of the NDPS Act which would be
applicable. Further, as Section 42 of the NDPS Act
was not applicable in the present case, the seizure
having been effected in a public place, the question
of non-compliance, if any, of the provisions of
Section 42 of the NDPS Act is wholly irrelevant.
Furthermore, in the mahazar which was prepared,
it is clearly stated that the seizure was made by PW
1. The mahazar was no doubt drawn by one S.
Jayanth. But, the contention of the learned Senior
Counsel that the prosecution version is vulnerable,
because Jayanth has not been examined, is of no
consequence because it is PW 1 who has
conducted the seizure. With regard to the alleged
non-compliance of Section 57 of the NDPS Act,
the High Court has rightly noted that PW 3 has
stated that the arrest of the accused was revealed to
his immediate superior officer, namely, the Deputy
Director."
22. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat [(2000) 2 SCC
513], this Court stated :
"18. When the same decision considered the
impact of non-compliance with Section 50 it was
held that "it would affect the prosecution case and
vitiate the trial". But the Constitution Bench has
settled the legal position concerning that aspect in
State of Punjab v. Baldev Singh the relevant
portion of which has been extracted by us earlier.
We do not think that a different approach is
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warranted regarding non-compliance with Section
42 also. If that be so, the position must be the
following :
If the officer has reason to believe from personal
knowledge or prior information received from any
person that any narcotic drug or psychotropic
substance (in respect of which an offence has been
committed) is kept or concealed in any building,
conveyance or enclosed place, it is imperative that
the officer should take it down in writing and he
shall forthwith send a copy thereof to his
immediate official superior. The action of the
officer, who claims to have exercised it on the
strength of such unrecorded information, would
become suspect, though the trial may not vitiate on
that score alone. Nonetheless the resultant position
would be one of causing prejudice to the accused."
{See also The State of West Bengal & Ors. V. Babu Chakraborty [JT
2004 (7) SC 216]}
23. In State of Haryana v. Jarnail Singh & Ors. [(2004) 5 SCC 188], this
Court, while dealing with the provisions of Section 43 of the NDPS Act,
opined :
"8. Section 43 of the NDPS Act provides that any
officer of any of the Departments mentioned in
Section 42 may seize in any public place or in
transit any narcotic drug or psychotropic
substance, etc. in respect of which he has reason to
believe that an offence punishable under the Act
has been committed. He is also authorised to
detain and search any person whom he has reason
to believe to have committed an offence
punishable under the Act. Explanation to Section
43 lays down that for the purposes of this section,
the expression "public place" includes any public
conveyance, hotel, shop, or other place intended
for use by, or accessible to, the public."
24. This Court in Union of India v. Major Singh & Ors. [(2006) 9 SCC
170], whereupon reliance has been placed by thelearned counsel, held :
"Turning now to Section 42(2) of the Act, in this
regard, it may be stated that from the prosecution
case and evidence it would be clear that the search
and seizure was made of a public carrier at a public
place and 127 bags of poppy straw (opium) were
seized from a public carrier.
The said decision has no application in the instant case.
25. For the foregoing reasons, we are of the opinion that the impugned
judgment does not suffer from any legal infirmity. There is no merit in the
appeal. It is dismissed accordingly.