01 November 2004
Supreme Court


Case number: C.A. No.-006350-006374 / 1997
Diary number: 12870 / 1997
Advocates: K. RAM KUMAR Vs



CASE NO.: Appeal (civil)  6350-6374 of 1997

PETITIONER: Distt. Registrar & Collector, Hyderabad & Anr.

RESPONDENT: Canara Bank Etc.

DATE OF JUDGMENT: 01/11/2004

BENCH: CJI R.C. Lahoti & Ashok Bhan



C.A\005\005\005\005/2004 (Arising out of SLP (C) No. 11607/2001)

R.C. Lahoti, CJI.

       Leave granted in SLP (C) No. 11607/2001.

Section 73 of the Indian Stamp Act, 1899 as incorporated by  Andhra Pradesh Act No. 17 of 1986, by amending the Central Act in its  application to the State, has been struck down by the High Court of  Andhra Pradesh as ultra vires the provisions of the Indian Stamp Act  as also of Article 14 of the Constitution.  The  District Registrar and  Collector, Registration and Stamps Department, Hyderabad and the  Assistant Registrar have come up in appeal by special leave.   Relevant Statutory Provisions under the Central Act :          Section 73 of the Indian Stamp Act (before the insertion of the  text under the impugned State Legislation in its applicability to the  State of Andhra Pradesh) reads as under:- "73.    Every public officer having in  his custody any registers, books, records,  papers, documents or proceedings, the  inspection whereof may tend to secure any  duty, or to prove or lead to the discovery of  any fraud or omission in relation to any duty,  shall at all reasonable times permit any  person authorized in writing by the Collector  to inspect for such purpose the registers,  books, papers, documents and proceedings,  and to take such notes and extracts as he  may deem necessary, without fee or  charge."

The term ’public officer’ is not defined in Section 73 nor in the  interpretation clause.  However, the term ’public office’ is found to  have been used in Section 33.  Sub-Section(3) of Section 33 provides  as under:- "33. (3)        For the purposes of this section,  in cases of doubt ___

       (a)     the State Government may determine  what offices shall be deemed to be public offices;  and

       (b)     the State Government may determine



who shall be deemed to be persons in charge of  public offices."

The term ’public officer having in his custody any registers etc.’ as  occurring in Section 73 can be defined by having regard to the  expression ’public office’ as occurring in Section 33.  The central  legislation including Section 73 took care to see that the power to  inspect was confined only to documents in the custody of public officer  which documents would necessarily be either public documents or  public record of private documents.  The purpose of inspection is  clearly defined.  It is permissible to have inspection carried out only in  these circumstances:- (i) when it may tend to secure any duty, or (ii)  when it may tend to prove any fraud or omission in relation to any  duty, and (iii) when it may tend to lead to the discovery of any fraud  or omission in relation any duty.

The State Amendments (1986)

The A.P. Act No.17 of 1986 has amended the Indian Stamp Act,  1899 in its application to the State of Andhra Pradesh.  The Act was  reserved by the Government of A.P. on 24th April, 1986 for the  consideration and assent of the President and received such assent on  17th July, 1986 which was published in the Andhra Pradesh gazette for  general information on 22nd July, 1986. Out of the several  amendments made by the A.P. Act 17 of 1986, the relevant one for  our purpose is Section 73 as substituted in place of the original Section  73 of the Indian Stamp Act by Section 6 of A.P. Act No.17 of 1986.   The same is reproduced hereunder:-                  6.      For section 73, of the principal  Act, the following section shall be  substituted, namely:-

73 (1) Every public officer or any  person having in his custody any registers,  books, records, papers, documents or  proceedings, the inspection whereof may  attend to secure any duty, or to prove or  lead to the discovery of any fraud or  omission in relation to any duty, shall at all  reasonable times permit any person  authorized in writing by the Collector to  enter upon any  premises  and to inspect for  such purposes the registers, books, records,  papers, documents and proceedings, and to   take such notes and extracts as he may  deem necessary, without fee or charge and if  necessary to seize them and impound the  same under proper acknowledgement:

               Provided that such seizure of any  registers, books, records, papers, documents  or other proceedings, in the custody of any  Bank be made only after a notice of thirty  days to make good the deficit stamp duty is  given.

               Explanation : - For the purposes of  this proviso ’bank’ means a banking  company as defined in section 5 of the  Banking Regulation Act, 1949 and includes  the State Bank of India, constituted by the  State Bank of India Act, 1955 a subsidiary  bank as defined in the State Bank of India



(Subsidiary Banks) Act, 1959, a  corresponding new bank as defined in the  Banking Companies (Acquisition and Transfer  of Undertaking) Act, 1970 and in the  Banking Companies (Acquisition and Transfer  of Undertakings) Act, 1980, a Regional Rural  Bank established under the Regional Rural  Banks Act, 1976, the Industrial Development  Bank of India established under the  Industrial Development Bank of India Act,  1964, National Bank for Agriculture and  Rural Development established under the  National Bank for Agriculture and  Rural  Development  Act, 1981, the Life Insurance  Corporation of India established under the  Life Insurance Corporation Act, 1956, The  Industrial Finance Corporation of India  established under the Industrial Finance  Corporation Act, 1948, and such other  financial or banking institution  owned,  controlled or managed by  a State  Government or the Central Government, as  may be notified in this behalf by the  Government.

               (2)     Every person having in his  custody or maintaining such registers,  books, records, papers, documents or  proceedings shall, when so required by the  officer authorized under sub-section (1),  produce them before  such officer and at all  reasonable times permit such officer to  inspect them and take such notes and  extracts as he may deem necessary.

(3)     If, upon such inspection, the  person so authorized is of opinion that any  instrument is chargeable with duty and is not  duly stamped, he shall require the payment  of the proper duty or the amount required to  make up the same from the person liable to  pay the stamp duty; and in case of default  the amount of the duty shall be recovered as  an arrear of land revenue.

The Statement of Objects and Reasons states that the  Government have been considering for quite some time the question  of plugging the loopholes in the Indian Stamp Act, 1899 in its  application to this State so as to arrest the leakage of stamp revenue  and also to augment the stamp revenue in the State.  The State of  Andhra Pradesh in doing so was inspired by the amendments made in  the State of Karnataka.  As to Section 73 the SOR states "As per  Section 73 of the said Act, the Collector or any person authorized by  him shall inspect any public office and the public officer having in his  custody any registers, books, records etc., shall permit him to take  copies of extracts of those records.  However, the inspecting officer  cannot seize the deficitly stamped documents and impound the same  during inspection.  On account of this loophole, the inspecting officers  are not able to seize and impound the deficitly stamped documents  and collect the deficit stamp revenue.  It has therefore been decided to  empower the Inspecting Officers to enter any premises and seize the  documents and impound them." [For a detailed Statement of Objects and Reasons see The Andhra  Pradesh Gazette Extraordinary Part IV-A dated March 20, 1986 pp. 9 \026




The  A.P. State Rules (1986) In exercise of the powers conferred by Section 75 of the Indian  Stamp Act, 1899 and of all other powers hereunto enabling and in  supersession of the earlier rules the Governor of Andhra Pradesh  framed rules for the collection of duties secured in the course of  inspection under Section 73 of the Indian Stamp (Andhra Pradesh  Amendment) Act, 1986 which rules came into force on the 16th day of  August, 1986.  The relevant part of the rules is extracted and  reproduced hereunder: 1.      In these rules unless the context otherwise  requires:-

(a)     ’Act’ means, the Indian Stamp (A.P.  Amendment) Act, 1986.

(b)     "Inspector-General of Registration and  Stamps" includes the person authorized in writing by  him as the Collector appointed under section 73 of  the Act to exercise the powers under that Section.

(c)     ’Head of Office’ means, the head of the  Office inspected by the Inspector General of  Registration and Stamps under section 73.

(d)     ’Section’ means a section of the Act.

(e)     ’Any premises’ includes any public office  or any place where registers, books, documents etc.,  are kept under the custody of a person the  inspection whereof may tend to secure any duty.

2.      (1)     The notes of inspection under  section 73 shall be sent to the Head of office with a  copy to the Head of the District office, if the office  inspected is subordinate to him, or with a copy to the  Head of the Department concerned, if the office  inspected is the District or Regional Office.

(2)     The first reports of compliance shall be  sent to the Inspector General of Registration and  Stamps, immediately on receipt of the notes of  inspection  by the Head of Office, with a copy to the  Head of the District Office concerned, if the office  inspected is subordinate to him or with a copy to the  Head of the Department, if the office inspected is a  District or Regional Office.

3.      When deficitly stamped documents are  detected during the course of inspection the  following procedure shall be followed:-

       (i) The Inspector General of Registration and  Stamps or the person authorized by him shall seize  and impound  such documents and after giving an  opportunity to the parties levy deficit duties if any,  without penalty and collect the same from the  persons liable to pay under sub-section (3) of the  section 73 and add the following certificate on the  original document:-

xxx                     xxx             xxx

(ii)    If the parties fail to pay the deficit duty



under sub-rule (i), it shall be collected by the head of  office.  The amounts so collected shall be remitted to  the Treasury under the following head of account by  means of a challan.

xxx                     xxx             xxx

(iii)   If the parties failed to pay such deficit  duties, the Inspector General of Registration and  Stamps shall forward the original document to the  Collector exercising powers under section 48 of the  Indian Stamp Act, 1899 over the area for effecting  recovery by coercive process.  After the amounts are  so collected, the procedure laid down in sub-rule (i)  shall be  followed.

(iv)    In the absence of original documents,  and on the basis of copies of such documents, if they  are found to be not duly stamped, the procedure for  collection of the duty as laid down in rule (iii) shall  be followed :

4.      If the parties are aggrieved by the levy  of duties they may apply to the Inspector General of  Registration and Stamps for revision before the  certificate prescribed under rule 3 is added.

5.      xxx                     xxx             xxx

6.      xxx                     xxx             xxx

[For full text of Rules see Andhra Pradesh Gazette, Rules supplement  to Part-II Extraordinary dated August 14, 1986 pp. 4-77.]

The Challenge There were 25 writ petitions filed in the High Court.  Out of  these, 11 were by different banks.  A few writ petitions were filed by  institutions, corporate or incorporate bodies and a few were filed by  sugar companies.  The grievances arose because the documents  executed between private parties and received and retained in the  custody of the bank in ordinary course of their loan advancing  transactions were inspected and then the banks were served with a  request to remit the amount of deficit duty on the documents  inspected and to recover the same from the parties concerned.  The  grievance of the sugar companies is that in the course of their  business they were entering into agreements with the sugarcane  growers selling sugarcane to the sugar companies in compliance with  the provisions of A.P. Sugarcane Control Order, 1965 in the proforma  prescribed by Control Order.  Several agreements entered into in the  prescribed proforma were treated as unstamped (though they were  not liable to be stamped, in the submission of sugar companies) and  therefore were sought to be impounded.  The grievance of private  persons is that the documents in their possession are sought to be  inspected, impounded and levied with duty though they were not  tendered in evidence nor produced before any public office.   

A perusal of the judgment of the High Court shows that in  holding the impugned Section 73 of the Act ultra vires of the  Constitution and other provisions of the Indian Stamp Act, the High  Court has arrived at four findings: firstly, that the amended Section 73  is inconsistent with the other provisions of the Act; secondly, that the  provision is violative of the principles of natural justice; thirdly, the  provision is arbitrary and unreasonable and hence violative of Article  14 of the Constitution; and fourthly, there are no guidelines provided  for the exercise of power by the authorized persons under the



amended Section 73 which is either arbitrary and unreasonable or  vitiated on account of excessive delegation of statutory powers.

       During the course of hearing Mrs. K. Amareswari, the learned  senior counsel for the appellants has vehemently attacked the  correctness of the impugned judgment submitting that the A.P.  Amendments are directed towards safeguarding the revenue of the  State and striking at the evil of stamp duty evasion, and therefore the  validity of such reasonable legislation was not liable to be questioned  as unconstitutional. On the other hand, the learned counsel appearing  for the respondents have defended the judgment of the High Court by  reiterating the same grounds of attack on the constitutional validity of  the impugned amendment as were urged in the High Court; of course  enlarging the reach of submissions by developing the dimensions  thereof.  We will deal with the submissions so made before us.  

Nature of stamp legislation         Stamp Act is a piece of fiscal legislation.  Remedial statutes and  statutes which have come to be enacted on demand of the permanent  public policy generally receive a liberal interpretation.  However, fiscal  statutes cannot be classed as such, operating as they do to impose  burdens upon the public and are, therefore, construed strictly.  A few  principles are well settled while interpreting a fiscal law.  There is no  scope for equity or judiciousness if the letter of law is clear and  unambiguous.  The benefit of any ambiguity or conflict in different  provisions of statute shall go for the subject.   In Dowlatram Harji &  Anr. Vs. Vitho Radhoti & Anr., (1881) 5 ILR (Bom) 188, the Full  Bench indicated the need for balancing the harshness which would be  inflicted on the subjects by implementation of the Stamp Law as  against the advantage which would result in the form of revenue to the  State; the latter may not be able to compensate the discontent which  would be occasioned amongst the subjects.   

       The legislative competence of the State of Andhra Pradesh to  amend and modify the Indian Stamp Act, a Central legislation, in its  applicability to the State of Andhra Pradesh, has not been questioned  and rightly so in view of the State enactment having been reserved for  the consideration of the President and having received his assent  under Article 254(2) of the Constitution.  The attack is on the ground  of unreasonableness, inconsistency and excessive delegation of powers  and also on account of drastic powers having been conferred on  executive authorities without laying down guidelines.

       The provisions of Section 29 providing for the persons by whom  duties are payable have been left untouched.  So is with Section 31  dealing with ’adjudication as to proper stamp’ which confers power on  the Collector to adjudicate upon the duty with which a document shall  be chargeable, though such document may or may not have been  executed.  The scheme of Section 31 involves an element of  voluntariness.   The person seeking adjudication must have brought  the document to Collector and also applied for such adjudication.   The  document cannot be compelled to be brought before him by the  Collector.  Section 33 confers power of impounding a document not  duly stamped subject to the document being produced before an  authority competent to receive evidence or a person incharge of a  public office.   It is necessary that the document must have been  produced or come before such authority or person incharge in  performance of its functions.  The document should have been  voluntarily produced. At the same time, Section 36 imposes an  embargo on the power to impound, vesting in the authority competent  to receive evidence, by providing that it cannot question the admission  of document in evidence once it has been admitted. None of these  provisions have been amended by the State of Andhra Pradesh.

       In Surajmull Nagoremull Vs Triton Insurance Co. Ltd., AIR



1925 PC 83, their Lordships of the Privy Council made it clear that the  provisions of the Stamp Act cannot be held to have been framed solely  for the protection of revenue and for the purpose of being enforced  solely at the instance of the revenue officials.

       Power to impound a document and to recover duty with or  without penalty thereon has to be construed strictly and would be  sustained only when falling within the four corners and letter of the  law. This has been the consistent view of the Courts.  Illustratively,  three decisions may be referred.  In Mussammat Jai Devi Vs. Gokal  Chand, 1906 (7) PLR 428, a document not duly stamped was  produced in the Court by the plaintiff alongwith the plaint but the suit  came to be dismissed for non-prosecution.  It was held by the Full  Bench that the document annexed with the plaint cannot be said to  have been produced in the Court in evidence and the court had no  jurisdiction to call for the same and impound it.  In Munshi Ram Vs.  Harnam Singh, AIR 1934 Lahore 637(1), the suit was compromised  on the date of first hearing and decree was passed based on the  compromise.  The original entry in a bahi was not put in evidence and,  therefore, the Special Bench held it was not liable to be impounded.   In L. Puran Chand, Proprietor, Dalhousie Dairy Farm Vs.  Emperor, AIR 1942 Lahore 257, the power to impound was sought to  be exercised after the decision in the suit and when the document  alleged to be not duly stamped had already been directed to be  returned as not proved though it was not physically returned.  The  Special Bench held that the document was not available for being  impounded.

       Though an instrument not duly stamped may attract criminal  prosecution under Section 62 of the Act but the Parliament and the  Legislature have both treated it to be a minor offence punishable with   fine only and not cognizable.  Here again it is well settled that such  offence is liable to be condoned by payment of duty and penalty on the  document and no prosecution can be launched except in the case of a  criminal intention to evade the Stamp Law or in case of a fraud and  that too after giving the person liable to be proceeded against, an  opportunity of being heard.

A bare reading of Section 73 as substituted by A.P. Act No.17 of  1986 indicates the infirmities with which the provision suffers. The  provision empowers any person authorized in writing by the Collector  to have access to documents in private custody or custody of a public  officer without regard to the fact whether the documents are sought to  be used before any authority competent to receive evidence and  without regard to the fact whether such document would ever be  voluntarily produced or brought before a public officer during the  performance of any of his specified functions in his capacity as such.   The power is capable of being exercised by such persons at all  reasonable times and it is not preceded by any requirement of the   reasons being recorded by the Collector or the person authorized for  his belief necessitating search.  The person authorized has been vested  with authority to impound the document. It is only in case of  documents in custody of any bank that an exception has been carved  out for giving a 30 days previous notice to the bank to make good the  deficit stamp duty before seizing and impounding the document.  Not  only there is no valid reason ? none pointed out either in the  pleadings nor at the hearing ___ for drawing the distinction between a  bank and other public office or any person having custody of  document.  Even in the case of a bank, the power to adjudicate upon  the need for impounding the document has been vested in the person  authorized.  The provision does not lay down any guidelines for  determining the person who can be authorized by the Collector to  exercise the powers conferred by Section 73.

       It is submitted on behalf of the respondents (writ petitioners in



the High Court) that impugned Section 73 (as applicable in Andhra  Pradesh) interferes with the personal liberty of citizens inasmuch as it  allows an intrusion into the privacy and property of the citizens.  The  instruments may have been kept in the residential accommodation of a  person or may have been kept at a place belonging to the person and  meant for the custody of the documents and both such places can be  entered into by any person authorized in writing by the Collector. It  was submitted that the provision is unreasonable and cannot be  sustained on the constitutional anvil.

Right of privacy qua search and seizure  -  debate in other  countries.

       The right to privacy and the power of the State to ’search and  seize’ have been the subject of debate in almost every democratic  country where fundamental freedoms are guaranteed.  History takes  us back to Semayne’s case decided in 1603 (5 Coke’s Rep. 91a) (77  Eng. Rep. 194) (KB) where it was laid down that ’Every man’s house is  his castle’.  One of the most forceful expressions of the above maxim  was that of William Pitt in the British Parliament in 1763.  He said:   "The poorest man may in his cottage bid defiance to all the force of  the Crown.  It may be frail  -  its roof may shake  -  the wind may blow  through it -  the storm may enter, the rain may enter -  but the King  of England cannot enter  -  all his force dare not cross the threshold of  the ruined tenement".

       When John Wilkes attacked not only governmental policies but  the King himself pursuant to general warrants, State officers raided  many homes and other places connected with John Wilkes to locate his  controversial pamphlets.  Entick, an associate of Wilkes, sued the  State officers because agents had forcibly broken into his house, broke  locked desks and boxes, and seized many printed charts, pamphlets  and the like.  In a landmark judgment in Entick  v. Carrington: (1765)  (19 Howells’ State Trials 1029) (95 Eng Rep 807), Lord Camden  declared the warrant and the behaviour as subversive ’of all the  comforts of society’ and the issuance of a warrant for the seizure of all   of a person’s papers and not those only alleged to be criminal in  nature was ’contrary to the genius of the law of England’.  Besides its  general character, the warrant was, according to the Court, bad  inasmuch as it was not issued on a showing of probable cause and no  record was required to be made of what had been seized.  In USA, in  Boyd  v. United States (1886) 116 US 616 (626), the US Supreme  Court said that the great Entick judgment was ’one of the landmarks of  English liberty\005.. one of the permanent monuments of the British  Constitution’.

       The Fourth Amendment in the US Constitution was drafted after  a long debate on the English experience and secured freedom from  unreasonable searches and seizures.  It said:

       "The right of the people to be secure in their  person, houses, papers, and effects, against  unreasonable searches and seizures, shall not be  violated and no Warrants shall issue, but upon  probable cause, supported by oath or affirmation,  and particularly describing  the place to be  searched, and the persons or things to be seized."

Art. 12 of the Universal Declaration of Human Rights (1948) refers to  privacy and it states:

"No one shall be subjected to arbitrary interference  with his privacy, family, home or correspondence  nor to attacks upon his honour and reputation.  



Everyone has the right to the protection of the law  against such interference or attacks."

Art. 17 of the International Covenant of Civil and Political Rights (to  which India is a party), refers to privacy and states that:

"No one shall be subjected to arbitrary or unlawful  interference with his privacy, family, home and  correspondence, nor to unlawful attacks on his  honour and reputation."

       The European Convention on Human Rights, which came into  effect on Sept. 3, 1953, also states in Art. 8:

"1.   Everyone has the right to respect for his  private and family life, his home and his  correspondence.

2.      There shall be no interference by a public  authority except such as is in accordance with law  and is necessary in a democratic society in the  interests of national security, public safety or the  economic well-being of the country, for the  protection of health or morals or for the protection  of the rights and freedoms of others."

       The Canadian Charter of Rights and Freedoms declares:   ’Everyone has the right to be secure against unreasonable  search and  seizure.’

       The New Zealand Bill of Rights declares in sec. 21 that  "everyone has the right to be secure against unreasonable search or  seizure, whether of the person, property or correspondence or  otherwise".

       Though the US Constitution contains a specific provision in the  Fourth Amendment against ’unreasonable search and seizure’, it does  not contain any express provision protecting the ’right to privacy’.   However, the US Supreme Court has culled out the ’right of privacy’  from the other rights guaranteed in the US Constitution.  In India, our  Constitution does not contain a specific provision either as to ’privacy’  or even as to ’unreasonable’ search and seizure, but the right to  privacy has, as we shall presently show, been spelt out by our  Supreme Court from the provisions of Arts. 19(1)(a) dealing with  freedom of speech and expression, Art. 19(1)(d) dealing with right to  freedom of movement and from Art. 21 which deals with right to life  and liberty.  We shall first refer to the case law in US relating to the  development of the right of privacy as these cases have been  adverted to in the decisions of this Court.

Privacy right in US initially concerned ’property’:   

       The American Courts trace the ’right to privacy’ to the English  common law which treated it as a right associated with ’right to  property’.  It was declared in Entick  v. Carrington (1765) that the  right of privacy protected trespass against property.  Lord Camden  observed:

"The great end for which men entered into society  was to secure their property.  That right is  preserved sacred and incommunicable in all  instances where it has not been taken away or  abridged by some public law for the good of the  whole\005\005. By the laws of England, every invasion



of private property, be it even so minute, is a  trespass.  No man can set foot upon my ground  without my licence but he is liable to an action  though the damage be nothing."

This  aspect of privacy as a property right was accepted by the US  Supreme Court in Boyd   v. United States (1886) 116 US 616 (627)  and other cases.

From right to property to right to person:

       After four decades, in Olmstead vs. United States (1928) 277  US 438, which was a case of wire-tapping or electronic surveillance  and where there was no actual physical invasion, the majority held  that the action was not subject to Fourth Amendment restrictions.   But, in his dissent, Justice Brandeis, stated that the Amendment  protected the right to privacy which meant ’the right to be let alone’,  and its purpose was ’to secure conditions favourable to the pursuit of  happiness’, while recognizing ’the significance of man’s spiritual  nature, of his feelings and of his intellect’; the right sought ’to protect  Americans in their beliefs, their thoughts, their emotions and their  sensations’.  The dissent came to be accepted as the law after another  four decades.         When the right to personal privacy came up for consideration in  Griswold  v. State of Connecticut:  (1965) 381 US 278), in the  absence of a specific provision in the US Constitution, the Court traced  the right to privacy as an emanation from the right to freedom of  expression and other rights.  In that case, Douglas, J. observed that  the right to freedom of speech and press included not only the right to  utter or to print, but also the right to distribute, the right to receive,  and the right to read and that without these peripheral rights,  the  specific right would be less secure and that likewise, the other specific  guarantees in the Bill of Rights have penumbras, forced by emanations  from those guarantees which help give them life and substance.  It  was held that the various guarantees created zones of privacy and that  protection against all government invasions "of the sanctity of man’s  house and the privacies of life" was fundamental.  The learned Judge  stated that ’privacy is a fundamental personal right, emanating from  the totality of the constitutional scheme, under which we (Americans)  live’.

       The shift from property to person was clearly declared in  Warden v. Heyden: (1967) 387 US 294 (304) as follows:

"\005 the premise that property interests control the  right of the Government to search and seize has  been discredited\005.. We have recognized that the  principal object of the Fourth Amendment is the  protection of privacy rather than property, and  have increasingly discarded fictional and  procedural barriers rested on property concepts."

Katz and ’reasonable expectation of privacy’:

       Thereafter, in Katz v. United States (1967) 389 US 347, there  was a clearer enunciation when the majority laid down that the Fourth  Amendment protected ’people and not places’.  Harlan, J. in his  concurring opinion said, - in a passage which has been held to be the  distillation of the majority opinion -  that the Fourth Amendment  scrutiny would be triggered whenever official investigative activity  invaded ’a reasonable expectation of privacy’.  Although the phrase  came from Justice Harlan’s separate opinion, it is treated today as the  essence of the majority opinion (Terry v. Ohio (1968) 392 US 1.   (See Constitution and Criminal Procedure, First Principles by Prof.  Akhil Amar, Yale University Press (1997), p. 183 fn.42).



       Stevens, J. in Thornburgh v. American College of O & G  (1986) 476 US 747 observed that ’the concept of privacy embodies  the moral fact that a person belongs to himself and not to others nor  to society as a whole’.  The same learned Judge had said earlier in  Whalen  v. Roe (1977) 429 US 589 that the right embraces both a  general ’individual interest in avoiding disclosure of personal matters’  and a similarly general, -  but nonetheless distinct -  ’interest in  independence in making certain kinds of important decisions’.  Fried  says in ’Privacy’ (1968) Yale Law Journal 475 (at 477) that physical  privacy is as necessary to ’relations of the most fundamental  sort\005.respect, love, friendship and trust’ as ’oxygen is for  combustion’.  A commentator in (1976) 64 Cal L Rev 1447 says that  privacy centres round values of repose, sanctuary and intimate  decision.  Repose refers to freedom from unwanted stimuli; sanctuary  to protection against intrusive observation; and intimate decision, to  autonomy with respect to the most personal of life’s choices.  (Prof.  Lawrence H. Tribe’s treatise, ’American Constitutional Law’, (1988),  2nd Ed, ch.15)

       Prof. Tribe says (ibid, p 1306) that to make sense for  constitutional law out of the smorgasbord of philosophy, sociology,  religion and history upon which our understanding of humanity  subsists, we must turn from absolute propositions and dichotomies so  as to place each allegedly protected act and each illegitimate  intrusion, in a social context related to the Constitution’s test and  structure.  He  says (p 1307) that ’exclusion of illegitimate intrusions  into privacy depends on the nature of the right being asserted and the  way in which it is brought into play; it is at this point that context  becomes crucial -  to inform substantive judgment’. If these factors  are relevant for defining the right to privacy, they are quite relevant -   whenever there is invasion of that right by way of searches and  seizures at the instance of the State.  In New Zealand, in the  watershed case of R v. Jeffries (1994) (1) NZLR 290 (CA),  Robertson, J. stated that the reasonableness of a search and seizure  would depend upon the subject \026 matter and the unique combination  of ’time, place and circumstances’.  The Court made a distinction  between illegality and reasonableness of the search or seizure, in the  context of sec. 21 of the N.Z. Bill of Rights, 1990.  It said ’a search  may be legal but unreasonable; it may be illegal but reasonable’.   Probably, what was meant was that a search under a Court warrant  may be lawful but the manner in which it is executed may be  unreasonable.  Likewise, there may be very rare exceptions where a  search and seizure operation is conducted without a warrant on  account of a sense of grave urgency for preventing danger to life or  property or where delay in procuring a warrant may indeed result in  the evidence vanishing but still the search or seizure might have been  conducted in a reasonable manner.  

       As to privacy of the home, the same has been elaborated.   Chief Justice Burger stated in United States   v. Orito: (1973) 413  US 139 that the Constitution extends special safeguards to the privacy  of the home, just as it protects other special privacy rights such as  those of marriage, procreation, motherhood, childbearing and  education.   Prof. Tribe states (p. 1412) that indeed, privacy of the  home has the longest constitutional pedigree of the lot, "for the  sanctity of the home\005 has been embedded in our traditions since the  origins of the Republic"; when we retreat across the threshold of the  home, inside, the government must provide escalating justification if it  wishes to follow, monitor or control us there.  In Stanley  v. Georgia:  (1969)394 US 557 it was declared that however free the State may be  to ban the public dissemination of constitutionally unprotected  obscene materials, the State cannot criminalize the purely private  possession of such material at home -  "The state has no business  telling a man sitting alone in his own house, what books he may read



or what films he may watch".     

       The above discussion shows that in the United States principles  regarding protection of privacy of the home have been put on strong  basis and the right is treated as a personal right distinct from a right  to property.  The right is, however, not absolute though any intrusion  into the right must be based upon probable cause as stated in the  Fourth Amendment.  

       Intrusion into privacy may be by -  (1) legislative provisions,  (2) administrative/executive orders and (3) judicial orders.  The  legislative intrusions must be tested on the touchstone of  reasonableness as guaranteed by the Constitution and for that  purpose the Court can go into the proportionality of the intrusion vis- ‘-vis the purpose sought to be achieved.  (2)  So far as administrative  or  executive action is concerned, it has again to be reasonable having  regard to the facts and circumstances of the case.  (3) As to Judicial  warrants, the Court must have sufficient reason to believe that the  search or seizure is warranted and it must keep in mind the extent of  search or seizure necessary for the protection of the particular state  interest.  In addition, as stated earlier, common law recognized rare  exceptions such as where warrantless searches could be conducted  but these must be in good faith, intended to preserve evidence or  intended to prevent sudden danger to person or property.  

Development of law in India:

       The earliest case in India to deal with ’privacy’ and ’search and  seizure’ was M.P. Sharma  v. Satish Chandra (1954 SCR 1077) in  the context of Art. 19(1)(f) and Art. 20(3) of the Constitution of India.   The contention that search and seizure violated Art. 19(1)(f) was  rejected, the Court holding that a mere search by itself did not affect  any right to property, and though seizure affected it, such effect was  only temporary and was a reasonable restriction on the right.  The  question whether search warrants for the seizure of documents from  the accused were unconstitutional was not gone into.  The Court, after  referring to American authorities, observed that in US, because of the  language in the Fourth Amendment, there was a distinction between  legal and illegal searches and seizures and that such a distinction need  not be imported into our Constitution. The Court opined that a search  warrant was addressed to an officer and not to the accused and did  not violate Art. 20(3).  In the present discussion the case is of limited  help.  In fact, the law as to privacy was developed in latter cases by  spelling it out from the right to freedom of speech and expression in  Art 19(1)(a) and the right to ’life’ in Art. 21.         Two latter cases decided by the Supreme Court of India where  the foundations for the right were laid, concerned the intrusion into  the home by the police under State regulations, by way of ’domiciliary  visits’.  Such visits could be conducted any time, night or day, to keep  a tag on persons for finding out suspicious criminal activity, if any, on  their part.  The validity of these regulations came under challenge.  In  the first one, Kharak Singh  v. State of UP,  1964(1) SCR 332, the  UP Regulations regarding domiciliary visits were in question and the  majority referred to Munn v. Illinois  (1876) 94 US 113 and held that  though our Constitution did not refer to the right to privacy expressly,  still it can be traced from the right to ’life’ in Art. 21.  According to the  majority, Clause 236 of the relevant Regulations in UP, was bad in  law; it offended Art. 21 inasmuch as there was no law permitting  interference by such visits.  The majority did not go into the question  whether these visits violated the ’right to privacy’.  But, Subba Rao J  while concurring that the fundamental right to privacy was part of the  right to liberty in Art. 21, part of the right to freedom of speech and  expression in Art. 19(1)(a), and also of the right to movement in Art.  19(1)(d), held that the Regulations permitting surveillance violated  the fundamental right of privacy.  In the discussion the learned Judge



referred to Wolf  v. Colorado: (1948) 338 US 25.  In effect, all the  seven learned Judges held that the ’right to privacy’ was part of the  right to ’life’ in Art. 21.         We now come to the second case, Govind v. State of MP   [1975] 2 SCC 148, in which Mathew, J. developed the law as to  privacy from where it was left in Kharak Singh.  The learned Judge  referred to Griswold v. Connecticut  (1965) 381 US 479 where  Douglas, J. referred to the theory of penumbras and peripheral rights  and had stated that the right to privacy was implied in the right to  free speech and could be gathered from the entirety of fundamental  rights in the constitutional scheme, for, without it, these rights could  not be enjoyed meaningfully.  Mathew, J. also referred to Jane Roe v.  Henry Wade (1973) 410 US 113 where it was pointed out that  though the right to privacy was not specifically referred to in the US  Constitution, the right did exist and "roots of that right may be found  in the First, Fourth and Fifth Amendments, in the penumbras of the  Bill of rights, in the Ninth Amendment, and in the  concept of liberty  guaranteed by the first section of the Fourteenth Amendment’.   Mathew, J. stated that, however, the ’right to privacy was not  absolute’ and that the makers of our Constitution wanted to ensure  conditions favourable to the pursuit of happiness as explained in  Olmstead v. United States (1927) 277 US 438 (471); the privacy  right can be denied only when an ’important countervailing interest is  shown to be superior’, or where a compelling State interest was  shown.  (Mathew, J. left open the issue whether moral interests could  be relied upon by the State as compelling interests).  Any right to  privacy, the learned Judge said, (see para 24) must encompass and  protect the personal intimacies of the home, the family, marriage,  motherhood, procreation and child bearing.  This list was however not  exhaustive.  He explained (see para 25) that, if there was State  intrusion there must be ’a reasonable basis for intrusion’.  The right to  privacy, in any event, (see para 28) would necessarily have to go  through a process of case-by-case development.  

       Coming to the particular UP Regulations 855 and 856, in  question in Govind, Mathew, J. examined their validity (see para 30).   These, according to him, gave large powers to the police and needed,  therefore, to be read down, so as to be in harmony with the  Constitution, if they had to be saved at all.  ’Our founding fathers  were thoroughly opposed to a Police Raj!’  he said.  Therefore, the  Court must draw boundaries upon these police powers so as to avoid  breach of constitutional freedoms. While it could not be said that all  domiciliary visits were unreasonable (see para 31), still while  interpreting them, one had to keep the character and antecedents of  the person who was under watch as also the objects and limitations  under which the surveillance could be made.  The right to privacy  could be restricted on the basis of compelling public interest.  The  learned Judge noticed that unlike non-statutory regulations in Kharak  Singh, here Regulation 856 was ’law’ (being a piece of subordinate  legislation) and hence it could not be said in this case that Art.21 was  violated for lack of legislative sanction.  The law was very much there  in the form of these Regulations.  Regulations 853(1) and 857  prescribed a procedure that was ’reasonable’.  So far as Regulation  856 was concerned, it only imposed reasonable restrictions within Art.  19(5) and there was, even otherwise, a compelling State interest.   Regulations 853(1) and 857 referred to a class of persons who were  suspected as being habitual criminals, while Regulation 857 classified  persons who could reasonably be held to have criminal tendencies.   Further Regulation 855, empowered surveillance only  of persons  against whom reasonable materials existed for the purpose of inducing  an opinion that they show a determination to lead a life of crime.  The  Court thus read down the Regulations and upheld them for the above  reasons.

       We have referred in detail to the reasons given by Mathew, J. in



Govind to show that, the right to privacy has been implied in Art.  19(1)(a) and (d) and Art. 21; that, the right is not absolute and that  any State intrusion can be a reasonable restriction only if it has  reasonable basis or reasonable materials to support it.

       A two-judges Bench in R. Rajagopal Vs. State of Tamil Nadu  (1994) 6 SCC 632 held the right of privacy to be implicit in the right to  life and liberty guaranteed to the citizens of India by Article 21.  "It is  the right to be let alone".  Every citizen has a right to safeguard the  privacy of his own.  However, in the case of a matter being part of  public records, including court records, the right of privacy cannot be  claimed.  The right to privacy has since been widely accepted as  implied in our Constitution, in other cases, namely, PUCLVs. Union of  India, (1997) 1 SCC 301; Mr. X Vs. Hospital ’Z’, (1998) 8 SCC 296;  People’s Union for Civil Liberties Vs. Union of India, (2003) 4  SCC 399; Sharda Vs. Dharmpal, (2003) 4 SCC 4931.

The impugned provision of the A.P. Amendment on anvil :         It is in the background of the above, the validity of sec. 73 of  the Stamp Act, 1899 falls to be decided.

       The text of Sec.73 Indian Stamp Act and the text as amended  in its application to State of A.P. have been set out in the earlier part  of the judgment.

       It will be seen that under sec.73, the Collector could inspect the  ’registers, books, records, papers, documents or proceedings’ in the  public office.  Obviously, this meant that the inspection must relate to  ’public documents’ in the custody of the public officer or to public  record of private documents available in his office.  The inspection  could be carried out only by a person authorized __ in writing __ by the  Collector.  The purpose of inspection has to be specific and has to be  based upon a belief that (i) such inspection may tend to secure any  (stamp) duty, or (ii) it may tend to prove any fraud or omission in  relation to any duty or (iii) it may tend to lead to the discovery of any  fraud or omission in relation to any duty.

       The above provisions have remained in sec. 73 even after the  A.P. Amendment of 1986.  The validity of the unamended provisions  of sec.73 of the Stamp Act, 1899 is not in issue before us.  It is a pre- constitutional law.  It is obvious that in its operation after the  commencement of the Constitution, even the unamended sec.73 must  conform to the provisions of Part III of our Constitution.

       When public record in the Sub-Registrar’s Office or a Bank or  for that matter any other public office is inspected for the purposes  referred to in the impugned sec.73, the public officer may indeed have  no objection for such inspection.  But, as in the case before us, in the  context of a Bank which either holds the private documents of its  customers or copies of such private documents, the question arises  whether disclosure of the contents of the documents by the Bank  would amount to a breach of confidentiality and would, therefore, be  violative of privacy rights of its customers?

Bank and its customers __ confidentiality of relationship

       It cannot be denied that there is an element of confidentiality  between a Bank and its customers in relation to the latter’s banking  transactions.  Can the State have unrestricted access to inspect and  seize or make roving inquiries into all Bank records, without any  reliable information before it prior to such inspection?  Further, can  the Collector authorize ’any person’ whatsoever to make the  inspection, and permit him to take notes or extracts?  These questions  arise even in relation to the sec.73 and have to be decided in the  context of privacy rights of customers.



         There has been a great debate in the US about privacy in  respect of Bank records and inspection thereof by the State.  In  United States Vs. Miller, (1976) 425 US 435, the majority of the  Court laid down that once a person passes on cheques etc. to a Bank,  which indeed is in a position of a third party, the right to privacy of the  document is no longer protected.  In that case, the respondent, who  had been charged with various federal offences, made a pre-trial  motion to suppress microfilms of cheques, deposit slips and other  records relating to his accounts with two Banks, which maintained  records relating to (US) Bank Secrecy Act, 1970.  He contended that  the subpoenas duces tecum pursuant to which the material had been  produced by the Banks, were defective and that the records had thus  been illegally seized in violation of the Fourth Amendment.  The  request was denied by the trial Court, the Respondent was tried and  convicted.  The Court of Appeals reversed, holding that the subpoened  documents fell within the constitutionally protected zone of privacy.   On further appeal, the US Supreme Court restored the conviction  holding that, once the documents reached the hands of a third party,  namely, the Bank, the Respondent ceased to possess any Fourth  Amendment interest in the Bank records that could be vindicated by a  challenge to the subpoenas, that the materials were business records  of the banks and not the respondents’ private papers; that, there was  no legitimate ’expectation of privacy’ (as stated in Katz) in the  contents of the original cheques and deposit slips, since the cheques  were "not confidential communications" but negotiable instruments to  be used in commercial transactions and the documents contained only  information voluntarily conveyed to the Banks which was exposed to  the employees in the ordinary course of business.  The Court laid down  a new principle of "assumption of risk".  It said the "depositor takes  the risk, in revealing his affairs to another".  The Court declared that  the Fourth Amendment did not prohibit the obtaining of information  revealed to a third party and conveyed by that party to government  authorities.  Once the person who had the privacy right "assumed the  risk" of the information being conveyed to the outside world by the  Bank, he could make no kind of complaint.

       The above decision led to a serious criticism by jurists (See ’A’  below) that the broad proposition, namely, that once a person  conveyed confidential documents to a third party, he would lose his  privacy rights, was wrong and was based on the old concept of  treating the right of privacy as one attached to property whereas the  Court had, in Katz accepted that the privacy right protected  ’individuals and not places’; Congress came forward with the Right to  Financial Privacy Act, 1978 (Pub L No.95-630) which provided several  safeguards to secure privacy, __ namely __  requiring reasonable cause  and also enabling the customer to challenge the summons or warrant  in a Court of law before it could be executed; (See (B) below)  (We do  not mean to say that any law which is not on those lines is invalid.  Indian laws such as s.132 etc. of the Indian Income Tax Act, 1961; or  secs. 91, 165 and 166 of the Criminal Procedure Code, 1973 as to  search and seizure have, as stated below, been extensively considered  by the Courts in India and have been held to be valid).

(A)     Criticism of Miller:  (i) The majority in Miller laid down that a  customer who has conveyed his affairs to another had thereby lost his  privacy rights.  (i) Prof. Tribe states in his treatise (see p.1391) that  this theory reveals ’alarming tendencies’ because the Court has gone  back to the old theory that privacy is in relation to property while it  has laid down that the right is one attached to the person rather than  to property.  If the right is to be held to be not attached to the person,  then ’we would not shield our account balances, income figures and  personal telephone and address books from the public eye, but might  instead go about with the information written on our ’foreheads or our  bumper stickers’.  He observes that the majority in Miller  confused



’privacy’ with ’secrecy’ and that "even their notion of secrecy is a  strange one, for a secret remains a secret even when shared with  those whom one selects for one’s confidence". Our cheques are not  merely negotiable instruments but yet the world can learn a vast  amount about us by knowing how and with whom we have spent our  money.  Same is the position when we use the telephone or post a  letter.  To say that one assumes great risks by opening a bank account  appeared to be a wrong conclusion.  Prof. Tribe asks a very pertinent  question (p. 1392):

"Yet one can hardly be said to have assumed a risk   of surveillance in a context where, as a practical  matter, one had no choice.  Only the most  committed -  and perhaps civilly committable \026  hermit can live without a telephone, without a bank  account, without mail.  To say that one must take a  bitter pill with the sweet when one licks a stamp is  to exact a highly constitutional price indeed for  living in contemporary society".

He concludes (p. 1400):

"In our information-dense technological era, when  living inevitably entails leaving not just  informational footprints but parts of one’s self in  myriad directories, files, records and computers, to  hold that the Fourteenth Amendment did not  reserve to individuals some power to say when  and how and by whom that information and those  confidences were to be used, would be to  denigrate the central role that informational  autonomy must play in any developed concept of  the self."

(ii)    Prof. Yale Kamisar (again quoted by Prof. Tribe) (p.1392) says: "It is beginning to look as if the only way someone  living in our society can avoid ’assuming the risk’   that various intermediate institutions will reveal  information to the police is by engaging in drastic  discipline, the kind of discipline of life under  totalitarian regimes".                  This reminds us of what Mathew, J. said in Govind,  that we are  not living in a police-Raj.        (iii)   Richard Alexander, a jurist-lawyer in an article published in  South West University Law Review (1978) Vol.10 (pp.13-33), titled,  ’Privacy, Banking Records and Supreme Court: A Before and After  Look at Miller’, says:

       "The Supreme Court (in Miller) followed the  old property interest line of analysis under the  Fourth Amendment, . . . . . .  such confidentiality is  due to the longstanding recognition that the  information contained in such records is highly  personal . . . . .  In the light of the liberty given to  the government to inspect banking records through  use of administrative summonses, it is impossible  to reconcile Miller with Katz and Griswold . . . . .   The United States Supreme Court rejected the  Katz’s ’justifiable expectation of privacy’ analysis  and opted for a mechanical ’property interest’  analysis which is unwieldy in its application to  twentieth century technology."



(iv)    Polyviou G. Polyviou in his book ’Search and Seizure’  (Duckworth, 1982) in an exhaustive discussion on Miller (pp.67 to 71)  concludes that "Miller, partly through reliance on property  considerations and partly through insensitive application of a rigid  ’misplaced confidence’ doctrine, has brought about a ’highly  questionable’ gap in Fourth Amendment coverage".

(v)     La Fave in his book ’Search and Seizure’ (1978) (quoted by  Polyviou) calls the Miller decision as ’pernicious’ and characterizes its  reasoning as ’woefully inadequate’.  

(vi)    Profs. Jackson and Tushnet in ’Comparative Constitutions Law’  (2001) say (p.404) that "in the USA the Fourth Amendment to the  Constitution bars police from conducting ’unreasonable’ searches, but  the Supreme Court has been willing to stamp nearly every  troublesome form of police activity as either not a search or not  unreasonable.  Oddly enough, the Court has made the law in this area  nearly unintelligible . . . . . "

(vii)   In this connection, two other articles, the ’Note, Government  Access to Bank Records’ (1974) 83 Yale Law Journal 1439 and ’A Bank  customer has no reasonable expectation of Privacy of Bank Records’,  United States v. Miller: 14 San Diego L. Rev (1974) are also  relevant.  (quoted by Polyvious G. Polyviou P.67)

(B)     We shall next refer to the response by Congress to Miller.  (As  stated earlier, we should not be understood as necessarily  recommending this law as a model for India).  Soon after Miller,  Congress enacted the ’Right to Financial Privacy Act, 1978 (Public Law  No.95-630) 12 USC with ss.3401 to 3422).  The statute accords  customers of Banks or similar financial institutions, certain rights to be  notified of and a right to challenge the actions of government in Court  at an anterior stage before disclosure is made.  Sec.3401 of the Act  contains ’definitions’.  Sec. 3402 is important, and it says that ’except  as provided by sec. 3403(c) or (d), 3413 or 3414, - no Government  authority may have access to or obtain copies of, or the information  contained in the financial records of any customer from a financial  institution unless the financial records are reasonably described and  that (1) such customer has authorized such disclosure in accordance  with sec. 3404; (2) such records are disclosed in response to (a)  administrative subpoenas or summons to meet requirement of sec.  3405; (b) the requirements of a search warrant which meets the  requirements of sec.3406; (c) requirements of a judicial subpoena  which meets the requirement of sec. 3407 or (d) the requirements of a  formal written requirement under sec. 3408.  If the customer decides  to challenge the Government’s access to the records, he may file a  motion in the appropriate US District Court, to prevent such access.   The Act also provides for certain specific exceptions.

       While we are on (B), it is necessary to make a brief reference to  sec. 93(1) of the Code of Criminal Procedure, 1973 which deals with  power of the Court to issue ’search warrants’ (a) where the Court has  ’reason to believe’ that a person to whom a summons or order under  sec.91 or a requisition under sec. 92(1) has been, or might be,  addressed, - will not or would not produce the document or thing as  required by summons or requisition, or (b) where such document or  thing is not known to the Court to be in the possession of any person,  or (c) where the Court considers that the purposes of any inquiry, trial  or other proceeding under the Code, will be served by a general search  or inspection, it may issue a search-warrant; and the person to whom  such warrant is directed, may search or inspect in accordance  therewith and the provisions contained in the Code.  Under sec.93(2),  the Court may, if it thinks fit, specify in the warrant, the place or part  thereof to which only the search or inspection shall extend; and the  person charged with the execution of such warrant shall then search or



inspect only the place or part so specified.  Under sec.93(2), a warrant  to search for a document, parcel or other thing in the custody of the  postal or telegraph authority, has to be issued by the District  Magistrate or Chief Judicial Magistrate.

       Sec. 165 of the Code deals with the power of a police officer to  search.  Under sec. 165(1) he must have reasonable grounds for  believing that anything necessary for the purpose of an investigation  into any offence, which he is authorized to investigate, may be found  in any place within the limits of the police station and that such thing  cannot, in his opinion, be otherwise obtained without undue delay.  He  has to record the grounds of his belief in writing and specify, so far as  possible, the thing for which search is made.  Sec.166 refers to the  question as to when an officer-in-charge of a police station may  require another to issue search warrant.

       In the Income-tax Act, 1961 elaborate provisions are made in  regard to ’search and seizure in sec.132; power to requisition books of  account etc. in sec. 132A; power to call for information as stated in  sec. 133.  Sec. 133(6) deals with power of officers to require any Bank  to furnish any information as specified there.  There are safeguards.   Sec.132 uses the words "in consequence of information in his  possession, has reason to believe".  Sec. 132(1A) uses the words "in  consequence of information in his possession, has reason to suspect".   Sec. 132(13) says that the provisions of the Code of Criminal  Procedure, relating to searches and seizure shall apply, so far as may  be, to searches and seizures under sec. 132(1) and 132(1A).  There  are also Rules made under sec.132(14).  Likewise sec. 132A(1) uses  the words "in consequence of information in his possession, has reason  to believe".  Sec. 133 which deals with the power to call for  information from Banks and others uses the words "for the purpose of  this Act" and sec. 133(6) permits a requisition to be sent to a Bank or  its officer.  There are other Central and State statutes dealing with  procedure for ’search and seizure’ for the purposes of the respective  statutes.

       Under all these enactments, there are several judgments of this  Court explaining the scope of the provisions, and the safeguards  provided by those provisions while upholding their constitutional  validity and pointing out their limitations.  It is not necessary in this  case to refer to those judgments.  Suffice it to say that, in the present  case we are concerned mainly with the validity of sec. 73 of the Stamp  Act, as amended in its application in 1986 in A.P.

       Once we have accepted in Govind and in latter cases that the  right to privacy deals with ’persons and not places’, the documents or  copies of documents of the customer which are in Bank, must continue  to remain confidential vis-‘-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  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.

       Secondly, the impugned provision in sec. 73 enabling the  Collector to authorize ’any person’ whatsoever to inspect, to take  notes or extracts from the papers in the public office suffers from the  vice of excessive delegation as there are no guidelines in the Act and



more importantly, the section allows the facts relating to the  customer’s privacy to reach non-governmental persons and would, on  that basis, be an unreasonable encroachment into the customer’s  rights.  This part of the Section 73 permitting delegation to ’any  person’ suffers from the above serious defects and for that reason is,  in our view, unenforceable.  The State must clearly define the officers  by designation or state that the power can be delegated to officers not  below a particular rank in the official hierarchy, as may be designated  by the State.

       The A.P. amendment permits inspection being carried out by the  Collector by having access to the documents which are in private  custody i.e. custody other than that of a public officer.  It is clear that  this provision empowers invasion of the home of the person in whose  possession the documents ’tending’ to or leading to the various facts  stated in sec. 73 are in existence and sec. 73 being one without any  safeguards as to probable or reasonable cause or reasonable basis or  materials violates the right to privacy both of the house and of the  person.  We have already referred to R. Rajagopal’s case wherein  the learned judges have held that the right to personal liberty also  means the life free from encroachments unsustainable in law and such  right flowing from Article 21 of the Constitution.

       In Smt. Maneka Gandhi Vs. Union of India & Anr., (1978) 1  SCC 248 ___ a 7-Judges Bench decision, P.N. Bhagwati, J. (as His  Lordship then was)  held that the expression ’personal liberty’ in  Article 21 is of the widest amplitude and it covers a variety of rights  which go to constitute the personal liberty of man and some of them  have been raised to the status distinguishing as fundamental rights  and give additional protection under Article 19 (emphasis supplied).   Any law interfering with personal liberty of a person must satisfy a  triple test: (i) it must prescribe a procedure; (ii) the procedure must  withstand the test of one or more of the fundamental rights conferred  under Article 19 which may be applicable in a given situation; and (iii)  it must also be liable to be tested with reference to Article 14.  As the  test propounded by Article 14 pervades Article 21 as well, the law and  procedure authorizing interference with personal liberty and right of  privacy must also be right and just and fair and not arbitrary, fanciful  or oppressive.  If the procedure prescribed does not satisfy the  requirement of Article 14 it would be no procedure at all within the  meaning of Article 21.

       The constitutional validity of the power conferred by law came  to be decided from yet another angle in the case of  Air India Vs.  Nergesh Meerza & Ors., (1981) 4 SCC 335, it was held that a  discretionary power may not necessarily be a discriminatory power   but where a statute confers a power on an authority to decide matters  of moment without laying down any guidelines or principles or norms,  the power has to be struck down as being violative of Article 14.

       An instrument which is not duly stamped cannot be received in  evidence by any person who has authority to receive evidence and it  cannot be acted upon by that person or by any public officer.  This is  the penalty which is imposed by law on the person who may seek to  claim any benefit under an instrument if it is not duly stamped.  Once  detected the authority competent to impound the document can  recover not only duty but also penalty, which provision, protects the  interest of revenue.  In the event of there being criminal intention or  fraud, the  persons responsible may be liable to be prosecuted.  The  availability of these provisions,  in our opinion adequately protects the  interest of revenue.  Unbridled power available to be exercised by any  person whom the Collector may think proper to authorize without  laying down any guidelines as to the persons who may be authorized  and without recording the availability of grounds which would give rise  to the belief, on the existence where of only, the power may be



exercised deprives the provision of the quality of reasonableness.   Possessing a document not duly stamped is not by itself any offence.   Under the garb of the power conferred by Section 73 the person  authorized may go on rampage searching house after house i.e.  residences of the persons or the places used for the custody of  documents.  The possibility of any wild exercise of such power may be  remote but then on the framing of Section 73, the provision impugned  herein, the possibility cannot be ruled out.  Any number of documents  may be inspected, may be seized and may be removed and at the end  the whole exercise may turn out to be an  exercise in futility.  The  exercise may prove to be absolutely  disproportionate with the purpose  sought to be achieved and, therefore,  a reasonable nexus between  stringency of the provision and the purpose sought to be achieved  ceases to exist.

       The abovesaid deficiency pointed out by the High Court and  highlighted by the learned counsel for the respondents in this Court  has not been removed even by the rules.  The learned counsel for the  respondents has pointed out that under the Rules the obligation is cast  on the bank or any other person having custody of the documents  though it may not be a party to the document, to pay the duty payable  on the documents in order to secure release of the documents.

       For the foregoing reasons we agree with the view taken by the  High Court that Section 73 of the Indian Stamp Act as amended in its  application to the State of Andhra Pradesh by Andhra Pradesh Act No.  17 of 1986 is ultra vires the Constitution.  As we do not find any  infirmity in the judgment of the High Court all the appeals are  dismissed.