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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.