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PETITIONER: M. P. SHARMA AND OTHERS

       Vs.

RESPONDENT: SATISH CHANDRA, DISTRICT MAGISTRATE,DELHI, AND OTHERS.

DATE OF JUDGMENT: 15/03/1954

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. HASAN, GHULAM BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN BOSE, VIVIAN

CITATION:  1954 AIR  300            1954 SCR 1077  CITATOR INFO :  D          1960 SC 756  (9)  RF         1961 SC  29  (21,22,25)  D          1961 SC1808  (1,4,8,9,11,13,14,19,21,22,31)  RF         1965 SC1251  (27,38)  E          1970 SC 940  (12,14)  D          1972 SC 591  (22)  F          1973 SC1196  (18)  F          1974 SC 348  (9,24)  RF         1976 SC1167  (3)  R          1978 SC1025  (31,38)  RF         1980 SC 185  (4)  RF         1981 SC 379  (62,66,87)

ACT:   Constitution  of  India, arts. 19(1)(f)  and  20(3)-Search warrant  issued  under  s. 96(1) of  the  Code  of  Criminal Procedure   (Act  V  of  1898)-Whether  ultra,  vires   art. 19(1)(f)-Search and seizure of 1078 documents  under  ss.  94 and 96 of  the  Code  of  Criminal Procedure  Whether compelled production thereof--Within  the meaning of art. 20(3).

HEADNOTE:     Held,  that the provision for the search  warrant  under the  first alternative of a. 96(1) of the Code  of  Criminal Procedure does not offend art. 19(1)(f) of the Constitution.   A search and seizure is only a temporary interference with the  right  to hold the property searched and  the  articles seized.  Statutory recognition in this behalf is a necessary and  reasonable restriction and cannot per se be  considered to be unconstitutional.     A  compelled production of incriminating documents by  a person against whom a First Information Report has been made is  testimonial compulsion within the meaning of art.  20(3) of the Constitution.  But a search and seizure of a document

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under  the  provisions  of  as. 94 and 96  of  the  Code  of Criminal  Procedure  is not a compelled  production  thereof within the meaning of art. 20 (3)  and hence does not offend the said Article.   A  power  of  search  and seizure is,  in  any  system  of jurisprudence,  an  overriding power of the  State  for  the protection of social security and that power is  necessarily regulated by law.  When the Constitution makers have thought fit  not  to  subject  such  regulation  to   constitutional limitations  by  recognition  of the  fundamental  right  to privacy,  analogous to the American Fourth Amendment,  there is  no  justification  for  importing  into  it,  a  totally different  fundamental  right by some  process  of  strained construction.    Scope and connotation of art. 20(3) explained.     John  Lilburn’s  Case  (3 State Trials  1315),  Boyd  v. United  States (116 U.S. 616), Weeks v. United States,  (232 U.S.  383),  Felix Gould v. United States  (255  U.S.  298), Entick v. Carrington (19 State Trials 1030), Hale v.  Henkel (201  U.S.  43),  and Satya Kinkar  Boy  v.  Nikhil  Chandra Jyotishopadhaya (A.I.R. 1951 cal. 104) referred to.

JUDGMENT: ORIGINAL JURISDICTION PETITIONS Nos. 372 and 375 of 1953.   Original petition under article 32 of the Constitution  of India for the enforcement of fundamental right.   Veda  Vyas, and Daulat Ram Kalia (S.  K. Kapur and  Ganpat Rai, with them) for the petitioners.    C. K. Daphtary, Solicitor General for India (Porus A. Mehta and A. M. Chatterjee, with him) for the respondents.       1954  March  15.   The  Judgment  of  the  Court   was delivered by JAGANNADHADAS J. 1079    JAGANNADHADAS   J.-These two applications are for  relief under article 32 of the Constitution arising out of  similar and  connected  set of facts and are  dealt  with  together. They’arise under the following circumstances.  The Registrar of   the   Joint  Stock  Companies,  Delhi   State,   lodged information with the Inspector General, Delhi Special Police Establishment,  to  the following effect.   Messrs.   Dalmia Jain  Airways Ltd. was registered in his office on  the  9th July, 1946, with an authorised capital of Rs. 10 crores  and went   into  liquidation  on  the  13th  June,   1952.    An investigation  into the affairs of the company was  ordered, by the Government and the report of the inspector  appointed under section 138 of the Indian Companies Act indicated that an  organised  attempt was made from the  inception  of  the company  to  misappropriate and embezzle the  funds  of  the company-and  declare  it  to be  substantial  loss,  and  to conceal  from the shareholders the true state of affairs  by submitting  false  accounts  and  balance-sheets.    Various dishonest  and fraudulent transactions were  also  disclosed which  show that false accounts with fictitious entries  and false  records  were  being maintained  and  that  dishonest transfers  of  moneys  had been made.   It  was  accordingly alleged  that  offences under sections 406,  408,  409,’418, 420, 465, 467, 468, 471 and 477(a) of the Indian Penal  Code had  been  committed.  It was also stated that  Seth  R.  K. Dalmia  who  was the Director and Chairman  of  Dalmia  Jain Airways  Ltd. has been controlling certain  other  concerns, viz.,  (1)  Dalmia Cement & Paper Marketing Co.,  Ltd.,  (2) Dalmia Jain Aviation Ltd. now known as Asia Udyog Ltd.,  and (3) Allen Berry & Co., Ltd., through his nominees- and  that

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all  these  concerns were utilised in order  to  commit  the frauds.   It was further stated therein by the Registrar  of Joint  Stock Companies that to determine the extent  of  the fraud,  it  was necessary to get hold of books not  only  of Dalmia  Jain  Airways Ltd. but also of the  allied  concerns controlled  by the Dalmia group, some of which  are  outside the  Delhi State.  Lists of the offices and places in  which and  of  the  persons in whose custody the  records  may  be available were furnished.  Speedy 140 1080 investigation was asked for.  This information was  recorded by  the  Special Police on the 19th November, 1953,  as  the First   Information  Report.   On  the  basis   thereof   an application  was  made to the  District  Magistrate,  Delhi, under  section  96 of the Criminal Procedure Code,  for  the issue  of  warrants for the search of documents and  in  the places,   as   per  schedules  furnished.    Permission   to investigate  in  respect  of  some  of  the   non-cognisable offences mentioned in the First Information Report was  also asked for.  On the same day, the District Magistrate ordered investigation  of  the  offences  and  issued  warrants  for simultaneous searches at as many as 34 places.  The searches were  made on the 25th November, 1953, and  subsequent  days and  a  voluminous mass of records was seized  from  various places.   The petitioners pray that the search warrants  may be  quashed as being absolutely illegal, and ask for  return of the documents seized.  In Petition No. 372 of 1953  there are  four petitioners of whom the second is the Delhi  Glass Works  Ltd.,  and  the  first  the  Deputy-General   Manager thereof,   the  third  its  Secretary  and  the   fourth   a shareholder  therein. In Petition No. 375 of 1953 there  are five petitioners of whom the first is Messrs.  Allen Berry & Co.,  Ltd.,  second Asia Udyog Ltd., the third  Shri  R.  K. Dalmia, the fourth the Secretary and General Attorney of the third and the fifth a shareholder of petitioners Nos.  I and 2, and an officer of petitioner No. 2. It will be seen  that the  petitioners  in both the petitions belong to  the  four concerns,  namely, (1) Delhi Glass Works Ltd’ , (2)  Messrs. Allen Berry & Co., Ltd., (3) Asia Udyog Ltd., and (4) Dalmia Jain  Airways Ltd.  The last three are stated- to be  Dalmia concerns  but  it does not appear from  the  records  placed before  us what exact connection Delhi Glass Works Ltd.  has with them.  However, it is admittedly one of the places  for which  a search warrant was asked for and against which  the First  Information Report appears to have been  lodged.   In the  petitions various questions were raised.  But  such  of them which raise only irregularities and illegalities of the searches and do not involve any constitutional violation are matters which may be  more  appropriately canvassed before the High  Court  on applications  under article 226 of the Constitution  and  we have  declined  to  go into  them.   The  petitioners  have, therefore,  confined themselves before us to two grounds  on which  they  challenge the  constitutional  validity,of  the searches.   The contentions raised are that the  fundamental rights  of the petitioners under article 20(3)  and  article 19(1)(f) have been violated by the searches in question.    So  far  as the contention based on article  19(1)(f)  is concerned we are unable to see that the petitioners have any arguable  case.  Article 19(1)(f) declares the right of  all citizens to acquire, hold and dispose of property subject to the operation of any existing or future law in so far as  it imposes  reasonable restrictions, on the exercise of any  of the  rights conferred thereby, in the interests  of  general

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public.   It  is  urged that the searches  and  seizures  as effected  in  this case were unreasonable and  constitute  a serious restriction on the right of the various petitioners, inasmuch  as their buildings were invaded,  their  documents taken  away  and their business and reputation  affected  by these largescale and allegedly arbitrary searches and that a law (section 96(1), Cr.P.C.) which authorises such  searches violates the constitutional guarantee and is invalid.   But, a search by itself is not a restriction on the right to hold and enjoy property.  No doubt a seizure and carrying away is a  restriction  of  the  possession  and  enjoyment  of  the property  seized.  This, however, is only temporary and  for the limited purpose of investigation.  A search and  seizure is, therefore, only a temporary interference with the  right to  hold  the  premises searched and  the  articles  seized. Statutory  regulation  in  this  behalf  is  necessary   and reasonable  restriction  cannot per se be considered  to  be unconstitutional.   The  damage,  if  any  caused  by   such temporary  interference  if found to be in excess  of  legal authority is a matter for redress in other proceedings.   We are unable to see how any question of violation. of  article 19(1)  (f)  is  involved  in this case  in  respect  of  the warrants in question which purport to be , under the first 1082 alternative of section 96(1) of the Criminal Procedure Code.    The  only substantial question, therefore, that has  been raised  is the one relating to article 20(3) which  runs  as follows:    "No  person accused of any offence shall be compelled  to be a witness against himself."     The argument urged before us is that a search to  obtain documents, for investigation into an offence is a compulsory procuring of incriminatory evidence from the accused himself and is, therefore, hit by article 20(3) as  unconstitutional and  illegal.   It is not disputed that,  prima  facIe,  the article  in  question  has  nothing  to  indicate  that   it comprehends  within its scope, the prohibition  of  searches and  seizures of documents from the custody of  an  accused. But it is urged that this is necessarily implied therein  by certain canons of liberal construction which are  applicable to  the  interpretation of  constitutional  guarantees.   In support  of  this line of argument great reliance  has  been placed  upon American decisions in which  similar  questions were  canvassed.  The argument on behalf of the  petitioners is   presented  in  the  following  way.   The   fundamental guarantee in article 20(3) comprehends within its scope  not merely oral testimony given by an accused in a criminal case pending against him, but also evidence of whatever character compelled  out  of a person who is or is  likely  to  become incriminated thereby as an accused.  It, therefore,  extends not only to compelled production of documents by an  accused from  his possession, but also to such compelled  production of  oral or documentary evidence from any- other person  who may  become  incriminated thereby as an  accused  in  future proceedings.   If this view of the content of article  20(3) is accepted, the next step in the argument presented is that a forcible search and seizure of documents is, for  purposes of constitutional protection of this guarantee, on the  same footing  as a compelled production of the said documents  by the  person  from  whom  they are  seized.   This  chain  of reasoning,  if  accepted  in  its  entirety,  would   render searches and seizures of documents and any 1083 statutory  provisions  in that behalf illegal and  void,  as being  in violation of the fundamental right  under  ArtiCle

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20(3).    The  question  thus  raised  is   of   farreaching importance and requires careful consideration.    Article  20(3)  embodies  the  principle  of   protection against compulsion of self-incrimination which is one of the fundamental  canons  of  the  British  system  of   criminal jurisprudence  and  which has been adopted by  the  American system  and incorporated as an article of its  Constitution. It has also, to a substantial extent, been recognized in the Anglo  Indian  administration of criminal  justice  in  this country by incorporation into various statutory  provisions. In order, therefore, to arrive at a correct appraisal of the scope  and  content  of the doctrine and to  judge  to  what extent   that   was  intended  to  be  recognised   by   our Constitution-makers  in  article 20(3), it is  necessary  to have a cursory view of the origin and scope of this doctrine and  the implications thereof as understood in  English  law and in American law and as recognized in the Indian law.    In  English  law, this principle  of  protection  against self-incrimination  had  a historical origin.   It  resulted from  a  feeling  of  revulsion  against  the  inquisitorial methods adoPted and the barbarous sentences imposed, by  the Court  of  Star  Chamber, in the exercise  of  its  criminal jurisdiction.   This  came  to a head in the  case  of  John Lilburn(1)  which  brought about the abolition of  the  Star Chamber  and the firm recognition of the principle that  the accused  should  not  be put on oath and  that  no  evidence should  be  taken from him.  This principle,  in  course  of time,  developed  into  its logical extensions,  by  way  of privilege  of  witnesses  against  self-incrimination,  when called  for  giving  oral testimony  or  for  production  of documents.  A change was introduced by the Criminal Evidence Act of 1898  By making an accused a competent witNess on his own  behalf, if he applied for it.  But so far as  the  oral testimony -of witnesses and the production of documents  are concerned, the protection against (1)  3 State Trials 1315, self-incrimination  continued  as before.  (See  Phipson  on Evidence, 9th Edition, pages 215 and 474).    These  principles,  as  they were  before  the  statutory change in 1898, were carried into the American legal  system and became part of its common law. (See Wigmore on Evidence, vol.   VIII,  pages  301  to  303).   This  was   later   on incorporated into their Constitution by virtue of the  Fifth Amendment thereof.  The language of the Fifth Amendment  was considered  by the American Courts as being wide  enough  to cover all the aspects of the principle of protection against self incrimination as administered under the English  common law including oral testimony of witnesses and production  of documents. (See Willis on Constitutional Law, pages 518  and 519).   In  course  of  time  further  extensions  of   that privilege were recognised by the courts relating to searches and seizures.  It came to be held that unreasonable searches and  seizures of documents fell equally within the  mischief of  the  Fourth  and the Fifth Amendments  [Boyd  v.  United States(1)]and  that documents or other evidence so  obtained were inadmissible in evidence [ Weeks v. United States(2)].    In the Indian law the extent to which this protection  is recognised  appears  from  the  various  relevant  statutory provisions from time to time.  Section III of Act XV of 1852 recognised that an accused in a criminal proceeding was  not a  competent or compellable witness to give evidence for  or against himself This provision was repealed by the  Evidence Act I of 1872.  But meanwhile the Criminal Procedure Code of 1861  in sections 204 and 203 thereof respectively  provided that  no oath shall be administered to the accused and  that

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it  shall be in the discretion of the Magistrate to  examine him.   The  Criminal Procedure Code of 1872 by  section  250 thereof  made a general questioning, of the  accused,  after the  witnesses  for  the  prosecution  had  been   examined, compulsory and section 345 thereof provided that no oath  or affirmation shall be (1)  116 U.S. 6i6. (2)  232 U.S. .383. 1085 administered to the accused person  These features have been continued in the later Codes of Criminal Procedure and  have been  incorporated into section 342 of the present  Criminal Procedure Code of 1898.  The only later statutory change, so far,  in  this behalf, appears to be that brought  about  by section  7  of the Prevention of Corruption Act,  1947.   By virtue of that section an accused is a competent witness  on his  own application in respect of offenses under that  Act. So far as witnesses are concerned, section III of Act XV  of 1852  also  declared the protection  of,  witnesses  against compulsion  to  answer  incriminating  questions.    Shortly thereafter in 1855, this protection was modified by  section 32  of Act II of 1855 which made him compellable  to  answer even  incriminating  questions but  provided  immunity  from arrest  or prosecution on the basis of such evidence or  any other  kind  of use thereof in criminal  proceedings  except prosecution  for giving false evidence.  This  position  has been  continued under section 132 of the Evidence Act  I  of 1872  which  is  still in force.  So far  as  documents  are concerned, it does not appear that the Indian statutory  law specifically  recognised  protection against  production  of incriminating  documents  until Evidence Act I of  1872  was enacted which has a provision in this behalf in section  130 thereof.   It is not quite clear whether this section  which excludes  parties to a suit applies to an accused.  Thus  so far as the Indian law is concerned it may be taken that  the protection against self-incrimination continues more or less as  in  the English common law, so far as  the  accused  and production of documents are concerned, but that it has  been modified   as  regards  oral  testimony  of  witnesses,   by introducing   compulsion   and   providing   immunity   from prosecution on the basis of such compelled evidence.    Since  the time when the principle of protection  against self-incrimination became established in English law and  in other systems of law which have followed it, there has  been considerable  debate as to the utility thereof  and  serious doubts were held in some quarters that this principle has  a tendency to defeat justice.  In support of the principle  it is claimed that the protection’ 1086 of  accused  against  -self-incrimination  promotes   active investigation  from external sources to find out  the  truth and proof of alleged or suspected crime instead of extortion of  confessions  on unverified suspicion.  (See  Wigmore  on Evidence,  Vol.  VIII, page 309).  It is also  claimed  that that  privilege in its application to witnesses  as  regards oral  testimony and production of documents affords to  them in general a free atmosphere in which they can be  persuaded to  come  forward to furnish evidence in courts  and  be  of substantial  help  in  elucidating truth  in  a  case,  with reference  to material within their knowledge and  in  their possession. (See Wigmore on Evidence, Vol.  VIII, page 307). On  the  other hand, the opinion has been strongly  held  in some  quarters that this rule has an undesirable  effect  on social  interests  and that in the detection of  crime,  the State  is  confronted with overwhelming  difficulties  as  a

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result  of  this privilege.  It is said this  has  become  a hiding  place of crime and has outlived its  usefulness  and that  the  rights  of accused persons  are  amply  protected without  this  privilege and that no innocent person  is  in need  of it. (See Wigmore on Evidence, Vol.VIII,  pages  314 and 315)  Certain passages at pages 441 and 442 of Vol. I of Stephen’s  History of the Criminal Law of England  are  also instructive in this context and show a similar divergence of opinion.    In  view  of the above background, there is  no  inherent reason  to construe the ambit of this fundamental  right  as coprising a very wide range.  Nor would it be legitimate  to confine it to the barely literal meaning of the words  used, since  it is a recognized doctrine that when  appropriate  a constitutional  provision has to be liberally construed,  so as  to  advance the intendment thereof and  to  prevent  its circumvention.  Analysing the terms in which this right  has been declared in our Constitution, it may be said to consist of the following components. (1) It is a right pertaining to a  person  " accused of an offence (2) It  is  a  protection against  compulsion  to  be  a witness"; and  (3)  It  is  a protection  against such compulsion resulting in his  giving evidence  " against himself ". The oases with which  we  are concerned have been 1087 presented  to  us on the footing that the  persons   against whom  the  search  warrants were issued, were  all  of  them persons against whom the First Information Report was lodged and who were included in the category of accused therein and that  therefore  they are ’persons" accused of  an  offence" within  the  meaning  of article 20(3)  and  also  that  the documents  for whose search the warrants were issued,  being required  for investigation into the alleged offences,  such searches were for incriminating material.  It may be noticed that some of the accused enumerated in the First Information Report are incorporated companies.  But no question has been raised  before  us  that the protection does  not  apply  to corporations or to documents belonging to them ’-a  question about  which  there  has been  considerable  debate  in  the American Courts.  On the above footing, therefore, the  only substantial argument before us on this part of the case  was that  compelled production of incriminating  documents  from the possession of an accused is compelling an accused to  be a witness against himself.  This argument accordingly raises mainly  the issue relating to the scope and  connotation  of the second of the three components above stated   Broadly  stated the guarantee in article 20(3) is  against "testimonial  compulsion  ". It is suggested  that  this  is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand.  We can see no  reason  to  confine the content  of  the  constitutional guarantee  to  this barely literal import.  So to  limit  it would be to rob the guarantee of its substantial purpose and to  miss  the substance for the sound as stated  in  certain American  decisions.  The phrase used in article 20(3) is  " to  be a witness." A person can " be a witness " not  merely by giving oral evidence but also. by producing documents  or making  intelligible  gestures  as in the  case  of  a  dumb witness  (see section 119 of the Evidence Act) or the  like. "  To  be  a witness " is nothing more  than  "  to  furnish evidence  ", and such evidence can be furnished through  the lips  or  by production of a thing or of a  document  or  in other modes.  So far as 141 1088

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production  of documents is concerned, no doubt section  139 of the Evidence Act says that a person producing a  document on  summons is not a witness.  But that section is meant  to regulate the right of cross-examination.  It is not a  guide to  the connotation of the word " witness", which  must  ’be understood  in  its natural sense, i.e., as referring  to  a person  who  furnishes  evidence.   Indeed,  every  positive volitional  act which furnishes evidence is  testimony,  and testimonial compulsion connotes coercion which procures  the positive  volitional  evidentiary  acts of  the  person,  as opposed  to the, negative attitude of silence or  submission on  his  part.  Nor is there any reason to  think  that  the protection  in  respect  of  the  evidence  so  procured  is confined to what transpires at the trial in the court  room. The  phrase used in article 20(3) is "to be a  witness"  and not to "appear as a witness": It follows that the protection afforded  to  an accused in so far as it is related  to  the phrase  "to  be  a  witness’ is not  merely  in  respect  of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him.  It  is available  therefore  to  a person  against  whom  a  formal accusation relating to the commission of an offence has been levelled   which  in  the  normal’  course  may  result   in prosecution.   Whether it is available to other  persons  in other situations does not call for decision in this case.    Considered  in  this light the  guarantee  under  article 20(3)  would  be  available in the present  cases  to  these petitioners against whom a First Information Report has been recorded  as  accused  therein.   It  would  extend  to  any compulsory  process for production of evidentiary  documents which are reasonably likely to support a prosecution against them.  The question then that arises next is whether  search warrants for the seizure of such documents from the  custody of  these persons are unconstitutional and hence illegal  on the  ground that in effect they are tantamount to  compelled production  of evidence.  It is urged that both  search  and seizure of a document and a compelled production thereof  on notice or summons serve the same purpose of being 1089 available  as evidence in a prosecution  against the  person Concerned,  and that any other view would defeat  or  weaken the Protection afforded by the guarantee of the  fundamental right.   This  line, of argument is not  altogether  without force  and has the apparent support of the Supreme Court  of the United States of America in Boyd V. United States(1).     The  question there which came up for consideration  was in   fact  the  converse,  namely,  whether   a   compulsory production  of documents on the facts of that case  amounted to search and seizure.  There are dicta in that decision  to the  effect that a compulsory production of a man’s  private papers  is  a search and seizure since it affects  the  sole object  thereof and that by this process the  court  extorts from  the  party his private books and papers  to  make  him liable for penalty.  It is necessary, therefore, to  examine this  decision rather closely in order to determine how  far it  can  be  a safe guide for  our  purpose.   The  question therein  arose under the following circumstances. In an  Act to  amend the, Customs Revenue Laws, there was  a  provision which  enabled  the Government Attorney to  make  a  written motion  to  the  court  for the issue of  a  notice  to  the opposite-party  for production of papers in his  possession. The motion could be made if in the Attorney’s opinion  those books contain materials which will prove an alleged fact  in support  of a charge of defrauding the  revenues,  involving penalty  and  forfeiture of merchandise to which  the  fraud

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relates.   It is also provided by the said section  that  if the  court in its discretion allows the motion in  which  is set  out  the fact sought to be proved and  calls  upon  the defendant to produce the documents, and the defendant  fails or   refuses  to  produce  them  without  any   proper   and satisfactory  explanation, the allegation of fact sought  to be  proved  by such production may be deemed  to  have  been confessed.  The question that thereupon arose was whether an order  for production made by the court under  that  section did  not violate the constitutional rights declared  by  the Fourth and Fifth Amendments of the (1)  116 U.S. 616. 1090 American Constitution.  These amendments are as follows:                Amendment IV.    "The  right of the people to be secure in their  persons, houses, papers, and effects against unreason. able  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.  "                 Amendment V.    "No  person......... shall be compelled in any  criminal. case, to be a witness against himself;............ "  On the facts of the above case, there was no difficulty  in holding that the production of documents in response to  the motion  granted by the court was a compelled  production  of incriminating  evidence  and  that  it  violated  the  Fifth Amendment.   The minority judgment brought this out  clearly in the following passage:    "The order of the court under the statute is in effect  a subpoena duces tecum; and though the penalty for the witness failure  to appear in court with the criminating  papers  is not fine and imprisonment, it is one which may be made  more severe,  namely,  to  have  the charges  against  him  of  a criminal nature taken for confessed and made the  foundation of  the  judgment  of the court.  That this  is  within  the protection   which   the   Constitution   intended   against compelling  a person to be a witness against himself  is,  I think, quite clear.  "    The majority Judges, how ever, went one step further  and said as follows:    "The  compulsory production of a man’s private papers  is search and seizure. and again thus   "  We have been unable to perceive that the seizure  of  a man’s  private  books  and, papers to be  used  in  evidence against  him is substantially different from compelling  him to be a witness against himself. 1091     Thus  in  the view. that the order  for  production  was tantamount to search and seizure and that in the case it was for  a purpose prohibited by the Fifth Amendment, they  held that the Fourth Amendment prohibiting unreasonable  searches was  also violated.  The minority Judges, however,  did  not accept this view and pointed out that there was an essential difference between the seizure of a document on search I and the production of a document.  But even otherwise, it  would appear  on a careful consideration of the decision that  the majority   were   at  pains  to  make  out  that,   in   the circumstances  of  the case the order for  production  would amount to "an unreasonable search and seizure" and is  hence unconstitutional   as   violating  the  Fourth   and   Fifth Amendments.  The case, therefore, does not lend support  for any  general  doctrine  that a search and’  seizure  in  all

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circumstances  is  tantamount to a compelled  production  in violation  of  the Fifth Amendment’.  That  decision  itself expressly  recognizes  the  legality  of  various  kinds  of searches  and indeed the Fourth Amendment itself  shows  it. Thus  what  that decision really established  was  that  the obtaining  of incriminating evidence by illegal  search  and seizure  is  tantamount  to  the  violation  of  the   Fifth Amendment.  It was in this light that subsequent cases  have also  understood this decision. [See Felix Gouled v.  United States(1)].      Boyd’s  case(2)  has relied on the famous  judgment  of Lord Camden in Entick v. Carrington(3), and learned  counsel for the petitioners has also relied on it strenuously before us.   Wigmore in his Law of Evidence, Vol.  VIII, page  368, has  shown  how some of the assumptions relating  to  it  in Boyd’s  case(1), were inaccurate and misleading.   While  no doubt  Lord  Camden refers to the  principle  of  protection against   self-accusation   with   great   force,   in   his consideration  of the validity of  general  search-warrants, that  case does not treat a seizure on a search  warrant  as ipso  facto tantamount to self-incrimination.  All that  was said (1)  253 U.S. 298; 65 Law.  Edn. 647 at 651 and 653. (2)  116 U.S. 616. (3)  19 State Trials 1030. 1092 was  that the legal philosophy underlying both is the  same, as appears from the following passage   "It  is  very  certain, that the law obligeth  no  man  to accuse  himself; because the necessary means  of  compelling self-accusation,  falling upon the innocent as well  as  the guilty, would be both cruel and unjust; and it should  seem, that  search  for  evidence  is  disallowed  upon  the  same principle.  There too the innocent would be confounded  with the guilty."    It may be noted that Lord Camden’s judgment shows, by  an elaborate  dissertation,  that the  search  warrant  therein under consideration was unauthorised and illegal.  Thus even the above dictum has reference only to an illegal search.    It  is,  therefore,  impossible  to  derive  from  Boyd’s case(1)  support  for  the  proposition  that  searches  and seizures,  in  general, are violative of  the  privilege  of protection  against self-incrimination.  Nor is it  possible to  import  that doctrine with its  differentiation  between legal and illegal searches into our Constitution because  we have nothing in our Constitution corresponding to the Fourth Amendment  enabling  the  courts  to  import  the  test   of unreasbnableness    or   any   analogous    criterion    for discrimination between legal and illegal searches.    In the arguments before us strong reliance has also  been placed  on  the  provision  of sections 94  and  96  of  the Criminal Procedure Code in support of the broad  proposition that   a   seizure  of  documents  on  search  is   in   the contemplation  of law a compelled production  of  documents. The sections run as follows:    " 94(1).  Whenever any court, or in any place beyond  the limits  of the towns of Calcutta and Bombay, any officer  in charge of a’ police-station considers that the production of any  document or other thing is necessary or  desirable  for the  purposes of any investigation, inquiry, trial or  other proceeding  under  this  Code by or  before  such  court  or officer,  such court may issue a summons, or such officer  a written  order, to the person in whose possession  or  power such  document or thing is believed to be, requiring him  to attend

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(1)  116 U.S. 616. 1093 and  produce  it, or to produce it, at the  time  and  place stated in the summons or order.  ............................."     "96(1).   Where,any Court has reason to believe  that  a person  to  whom a summons or order under section  94  or  a requisition  under section 95, subsection (1), has  been  or might  be  addressed  will  not or  would  not  produce  the document   or   thing  as  required  by  such   summons   or requisition,    or where such document or thing is not known to the court to be in the possession of any person,     or  where the court considers that the purposes  of  any inquiry,  trial or other proceeding under this 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   hereinafter contained.      .........................."    It is pointed out that the procedure contemplated is that normally there should be a summons or notice for  production under  section 94 and it is only if there is  no  compliance therewith  or  if  the Magistrate  is  satisfied  about  the likelihood of non-compliance that a search warrant is to  be issued.   It  is,  therefore, urged  that  these  provisions themselves  show  that  in  law  search  and  seizure  is  a substitute  for compelled production on summons.  There  has been some debate before us whether section 94 applies to  an accused   person  and  whether  there  is  any  element   of compulsion  in  it.   For the purpose of  this  case  it  is unnecessary  to decide these points.  We may assume  without deciding  that the section is applicable to the  accused  as held by a Full Bench of the Calcutta High Court in a  recent case  in  Satya  Kinkar  Boy  v.  Nikhil  Chandra  Jyotisho- padhaya(1).  We may also assume that there is an element  of complusion  implicit in the process contemplated by  section 94  because,  in  any case, no  compliance  results  in  the unpleasant  consequence  of invasion of one’s  premises  and rummaging of one’s (1)  A.I.R. 1951 Cal 101. 1094 private papers by the minions of law under a search warrant. Notwithstanding  these  assumptions we are  unable  to  read sections  94  and 96(1) of the Criminal  Procedure  Code  as importing any statutory recognition of a theory that  search and  seizure of documents is compelled  production  thereof. It   is  to  be  noticed  that  section  96(1)   has   three alternatives and that the requirement of previous notice  or summons and the non-compliance with it or the likelihood  of such   noncompliance  is  prescribed  only  for  the   first alternative and not for the second or the third.  A "general search" and a "search for a document or a thing not known to be   in  possession  of  any  particular  person"  are   not conditioned  by  any  such  requirement.   Indeed  in  cases covered by the second alternative such a requirement  cannot even  be  contemplated as possible.  .It  would,  therefore, follow, on the theory propounded, that some at least of  the searches   within  the  scope  of  the  second   and   third alternatives  in  section  96(1)  would  fall  outside   the constitutional  protection  of  article  20(3)-an  anomalous distinction  for  which  no justification can  be  found  on principle.      A  consideration  of the history  of  Indian  statutory

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legislation relating to searches does not support the theory propounded.  The provisions for searches are to be found  in the successive Codes of Criminal Procedure.  In the earliest Code,  Act  XXV  of 1861, there  appears  no  provision  for issuing summons or notices for production of documents,  but there was only a provision for the issue of a search warrant by a Magistrate under section 114. thereof, which is in  the following terms:    "When a Magistrate shall consider that the production  of any thing is essential to the conduct of an enquiry into  an offence  known or suspected to have been committed,  he  may grant his warrant to search for such thing; and it shall  be lawful  for the officer charged with the execution  of  such warrant  to  search  for such thing in any  house  or  place within  the jurisdiction of such Magistrate.  In  such  case the  Magistrate  may  specify in his warrant  the  house  or place,  or  part  thereof, to which only  the  search  shall extend. 1095     There was also section 142 of the said Code which vested in an officer in charge of police station with the power  to make  a  search suo moto in certain circumstances..  In  the next  Criminal Procedure Code, Act I of 1872,  the  relevant provisions  were in sections 365, 368 and 379.  Section  379 was more or less a repetition of section 142 of the previous Code (Act XXV -of 1861) vesting power in a police officer to make  a  suo  moto search.  Section 365 appears  to  be  the earliest  statutory  provision for the issue of  a  summons, either by a police officer or by a court for the  production of a document required for investigation.  This was followed by  section  368 relating to the issue  of  search  warrants which was in the following terms:      "When  a  Magistrate considers that the  production  of anything  is essential to the conduct of an inquiry into  an offence known or suspected to have been committed or to  the discovery of the offender, or  when he considers that such inquiry or  discovery will  be furthered by the search or inspection of any  house or place,       he  may  grant  his search-warrant;  and  the  officer charged  with  the execution of such warrant may  search  or inspect  any house or place witiin the jurisdiction  of  the Magistrate of the District.       The  Magistrate issuing such warrant may, if  he  sees fit,  specify  in his warrant the house or  place,  or  part thereof,  to  which  only the  search  or  inspection  shall extend;  and the officer charged with the execution of  such warrant  shall then search or inspect only the house,  place or part so specified. "      It  will  be noticed that even when  the  procedure  of summons for production of documents was introduced, as above in  section  365 the provision for the issue  of  a  search- warrant in section 368 had absolutely nothing to do with the question of non-compliance by the concerned person with  the summons  for production.  It is only in the next.   Criminal Procedure Code, Act X of 1882 that the provisions,  sections 94  and 96, appear which correspond to the present  sections 94  and 96 of Act V of 1898, linking up to some  extent  the issue of 142 1096 search warrants  with non-compliance or likelihood  of  non- compliance .with a summons to produce.  It may be  mentioned in  passing  that  the provision for the  issue  of  general search warrants appears for the first time in the  Procedure

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Code  of  1882  and even there the issue,  of  such  general warrants  is  not  based on noncompliance  with  a  previous summons  for production. it is, therefore, clear that  there is  no  basis in the Indian law for the  assumption  that  a search or seizure of  a thing or document is in itself to be treated  as  compelled  production of the  same.   Indeed  a little consideration will show that the two are  essentially different  matters for the purpose relevant to  the  present discussion.  A notice to produce is addressed to the party , concerned   and  his  production  in  compliance   Therewith constitutes a testimonial act by him within the’ meaning  of article  20(3)  as above explained.  But search  warrant  is addressed  to  an  officer of the  Government,  generally  a police  officer.   Neither the search nor  the  seizure  are ’acts  of the occupier of the searched premises.   They  are acts  of another to which he is obliged to submit  and  are, therefore,  not his testimonial acts in any sense.  Even  in the American decisions there is a strong current of judicial opinion  in  support  of  this  distinction.   In  Hale   v. Henkel(1), Justice MeKenna in his dissenting judgment  makes the following observations:     "Search  implies  a quest by an officer of the  law;  a, seizure   contemplates  a  forcible  dispossession  of   the owner.............  The  quest of an officer acts  upon  the things themselves,-may be secret, intrusive, accompanied  by force.  The service of a subpoena is but the delivery of,  a paper  to  a  party,-is open and aboveboard.   There  is  no element of trespass or force in it."  A  power  of  search  and  seizure  is  in  any  system  of jurisprudence’an  overriding  power  of the  State  for  the protection of social security and that power is  necessarily regulated by law.  When -the Constitution makers have thougt fit  not  to  subject  such  regulation  to   Constitutional limitations by recognition of a (1)  201 U.S. 43; 50 Law. Edn. 652. 1097 fundamental  right  to privacy, analogous  to  the  American Fourth  Amendment,  we have no justification to  import  it, into a totally different fundamental right. by some  process of  strained construction.  Nor is it legitimate  to  assume that the constitutional protection under article 20(3) would be defeated by the statutory provisions for searches.  It is to be remembered that searches of the kind we are  concerned with are’ under the authority of a Magistrate  (excepting,in the limited class of cases falling under section 165 of  the Criminal Procedure Code).  Therefore, issue of a search war- rant  is normally the judicial function of  the  Magistrate. When  such  judicial  function is.  interposed  between  the individual  and  the  officer’s  authority  for  search,  no circumvention  thereby  of the fundamental right  is  to  be assumed.   We are not unaware that in the present set up  of the Magistracy in this country, it is not infrequently  that the exercise of this judicial function is liable to  serious error, as is alleged in the present case.  But the existence of  scope for such occasional error is no ground  to  assume circumvention of the constitutional guarantee.   We  are,  therefore,  clearly  of  the  opinion  that  the searches  with which we are concerned in the  present  cases cannot  be challenged as illegal on the ground of  violation of  any fundamental rights and.that these  applications  are liable to be dismissed.      As  stated at the outset, we have dealt only  with  the constitutional  issues  involved in this  case  leaving  the other  allegations as to the high-handedness and  illegality of the searches open to be raised and canvassed before  ’the

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High Court on appropriate applications.  But we cannot  help observing that on those allegations and on the material that has  come within our notice, there appears to be  scope  for serious  grievance  on the side of  the  petitioners,  which requires scrutiny.     We  accordingly dismiss these applications  but  without costs. 1098