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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.