Supreme Court of India
DIRECTORATE OF REVENUE & ANR.versusMOHAMMED NISAR HOLIA
- Citation
- 2007 INSC 1226
- Decided
- 5 December 2007
- Disposal
- Dismissed
Holding
Non‑compliance with the procedural requirements of Section 42 of the NDPS Act renders the search and seizure invalid, and the conviction cannot stand.
Summary
The Directorate of Revenue received a fax alleging that a guest in a Mumbai hotel possessed Mandrex tablets and cash. Officers searched the guest's hotel room, seized cash and a fax copy of a consignment note, and recorded the accused's statement under Section 67 of the NDPS Act. The trial court convicted the accused under Sections 8(c), 22 and 29 of the NDPS Act, imposing ten years' imprisonment and a fine, but the High Court set aside the conviction, holding that the statutory requirements of Section 42—particularly the reduction of information to writing by the officer receiving it—were not complied with. On appeal, the Supreme Court examined whether a search in a hotel room (a public place) falls within the exception of Section 43 and whether non‑compliance with Section 42 vitiates the seizure and the evidence. The Court held that the statutory requirements of Section 42 were indeed violated, that the search was invalid, and that the High Court's decision was correct. Consequently, the appeal was dismissed, leaving the conviction overturned.
Issues considered
- The search and seizure of a hotel room under the NDPS Act requires compliance with Section 42 even when the place is a public place under Section 43.
- Whether the fax evidence and its xerox copy satisfy the evidentiary requirements of Sections 66 and 67 of the NDPS Act.
- Whether non‑compliance with statutory procedures under Section 42 vitiates the conviction.
Legislation cited
- Code of Criminal Procedure, 1973s. 100, s. 165
- Constitution of Indias. Article 21
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 22, s. 29, s. 42, s. 43, s. 66, s. 67, s. 8(c)
Subjects
NDPS Actsearch and seizureSection 42Section 43right to privacyArticle 21evidence admissibilitysecondary evidencehotel roompublic placestatutory compliance
Judgment
A DIRECTORATE OF REVENUE & ANR.
V.
MOHAMMED NISAR HOLIA
DECEMBER 5, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]
Narcotic Drugs and Psychotropic Substances Act, J985; Ss. 8(c),
22, 29, 42, 43, 66 and 67:
c
Narcotic drugs-Possession of----Search and seizure-Requirement
of-Held: Power to make search and seizure founded upon and subject
to satisfaction ofthe authority-Jn terms ofprovision u/s. J65 Cr.P. C.,
accused must be informed about statutory requirements in regard to
D search and seizure-An authority cannot be given an untrammeled
power to infringe the right ofprivacy ofany person-Court has to see 'r·
that such right not infringed unnecessarily-Statute mandates that
prosecution must prove compliance ofthe provisions-Jn the absence
of any evidence. the Court shall presume non-compliance of the
provisions by the prosecution-In the instant case, statutory
E
requirements not complied with-Information, afax message, received
by the authority was illegible. therefore, not admissible in evidence in
terms of s.67 of the Act-Xeroxed copy of the fax, as furnished. not
proved in terms of s. 66 of the Act-Besides, no secondary evidence
could have been led lo prove another secondary evidence-Hence, the
F
impugnedjudgment ofthe High Court reversing the judgment oftrial
Court convicting accused on ground of non-compliance with the
statutory requirements ofs. 42 ofthe Act, does not suffer from any legal
infirmily--Code ofCriminal Procedure, J973-s. J65-Evidence Ac/,
J872-Evidence-Secondary evidence-Interpretation of Statutes.
G
NDPS Act-Scope of-Discussed.
Search & Seizure-Right ofprivacy----Protection of-Discussed. r
Conslitution of India. 1950; Article 21:
H 906
DIRECTORATEOFREVENUEv. MOHAMMEDNISAR 907
HO LIA
Narcotic drugs-Possession of-Search and seizure in terms of A
provisions u/s.42of1905 Act vis-a-vis doctrine ofdue process under
Article 21 of the Constitution-Held: Draconian provision under a
statute may lead to harsh sentence-Therefore, protection of citizen
from oppression and injustice is imperative-Thus, there is a need of
striking balance between the requirement of law and enforcement B
thereof-Narcotics Drugs and Psychotropic Substances Act, 1905;
s. 42-lnterpretation of Statutes.
On receipt of an information, a fax message, that a person
staying at a Hotel in Mumbai was in possession ofMandrex tablets
for being transported from Delhi to Mumbai, a team of the Officers C
of Directorate of Revenue and Intelligence proceeded to the Hotel
and searched the suspect. A sum ofRs.4,25,000/- in cash and a fax
copy of a receipt of Carriers from Delhi showing the consignment
of the drugs was found in the Hotel room. The statement of the
accused was also recorded in terms of Section 67 of the Narcotics D
Drugs & Psychotropic Substances Act. Later, the consignment
arrived as per details in the receipt. Accused-respondent was
arrested relying on and on the basis of recovery of the fax message.
The trial Court relying on the provisions under Section 66 of the Act
held the respondent guilty of commission of an offence under Sections E
8(c), 22 and 29 of the Act and sentenced him to imprisonment for 10
years and also imposed a fine ofRs.1,00,000/- on him. On appeal,
the judgment of the trial Court was reversed by the High Court
holding that the statutory requirements of Section 42 of the Act had
not been complied with. Hence the present appeal. F
Revenue contended that as a hotel is a public place within the
meaning of Section 43 of the Act, it was not necessary for the
authority to comply with the provisions of Section 42 thereof.
Dismissing the appeal, the Court G
HELD: 1.1. Narcotic Drugs and Psychotropic Substances Act
is a penal statute. It invades the rights of an accused to a large
extent. It raises a presumption of a culpable mental state. Ordinarily,
even an accused may not be released on bail having regard to Section H
908 SUPREME COURT REPORTS [2007] 12 S.C.R.
A 37 of the Act. The Court has the power to publish names, address
and business etc. of the offenders. Any document produced in
evidence becomes admissible. A vast power of calling for information
upon the authorities has been conferred by reason of Section 67 of
the Act. [Para 9) [913-C, DJ
B
1.2. Power to make search and seizure as also to arrest an
accused under the provisions of the Act is founded upon and subject
to satisfaction of the officer as the terms "reason to believe" have
been used under the Act. Such belief may be founded upon secret
information that may be orally conveyed by the informant. Draconian
C provision, which may lead to a harsh sentence, having regard to the
doctrine of 'due process' as adumbrated under Article 21 of the
Constitution oflndia, require striking of balance between the need
oflaw and enforcement thereof, on the one hand, and protection of
citizen from oppression and injustice on the other.
D [Para 11) (914-E, F, G)
1.3. This Court, while interpreting the provisions of the Act in
the case of State of Punjab v. Balbir Singh, held that not only the
provisions of Section 165 of the Code of Criminal Procedure would
E be attracted in the matter of search and seizure but the same must
comply with right of the accused to be informed about the
requirement to comply with the statutory provisions.
[Para 12) (914-G, H; 915-A)
State ofPunjab v. Balbir Singh, AIR (1994) SC 1872, relied on.
F
Miranda v. Arizona, (1966) 384 US 436, referred to.
2.1. Section 43, on plain reading of the Act, may not attract the
rigours of Section 42. That means that even subjective satisfaction
on the part of the authority, as is required under sub-section (1) of
G Section 42, need not be complied with, only because the place
whereat search is to be made is a public place. If Section 43 is to be
treated as an exception to Section 42, it is required to be strictly
complied with. An interpretation which strikes a balance between
the enforcement oflaw and protection of the valuable human right
H of an accused must be resorted to. A declaration to the effect that
I
·-+
DIRECTORATE OF REVENUE v. MOHAMMEDNISAR 909
HOLIA
the minimum requirement, namely, compliance of Section 165 of the A
Code of Criminal Procedure would sen-e the purpose may not suffice
as non-compliance of the said provision would not renderthe search
a nullity. A distinction therefor must be borne in mind between a
search conducted on the basis of a prior information and a case where
the authority comes across of commission of an offence under the B
Act accidentally or per chance. [Para 14] [915-C, D, E]
2.2; The very fact that the Act contemplated different measures
to be taken in respect of search to be conducted between sunrise
and sunset, between sunset and sunrise as also the private place and
public place is of.some significance. An authority cannot be given c
an untrammeled power to infringe the right of privacy of any person.
Even if a statute confers such power upon an authority to make
search and seizure of a person at all hours and at all places, the same
may be held to be ultra vires unless the restrictions imposed are
reasonable ones. What would be reasonable restrictions would D
-· depend upon the nature of the statute and the extent of the right
sought to be protected. Although a statutory power to make a search
and seizure by itself may not offend the right of privacy but in a case
of this nature, the least that a court can do is to see that such a right
is not unnecessarily infringed. Right of privacy deals with persons E
and not places. [Para 14) (916-B, C, D]
2.3. A person, if he does not break a law would be entitled to
enjoy his life and liberty which would include the right not to be
disturbed. A right to be let alone is recognized to be a right which
.. would fall under Article 21 of the Constitution oflndia. F
[Para 15) (916-D, E)
Sharda v. Dharampal, [2003) 4 SCC 493 and District Registrar
and Collector, Hyderabad & Anr. v. Canara Bank & Ors., (2005) 1 SCC
496, referred to.
G
2.4. This Court times without number has laid great emphasis
-1 on recording of reasons before search is conducted on the premise
that the same would the earliest version which would be available
to a court oflaw and the accused while defending his prosecution.
The provisions contained in Chapter IV of the Act are a group of
H
~
910 SUPREME COURT REPORTS [2007] 12 S.C.R.
A sections providing for certain checks on exercise of the powers of
the concerned authority which otherwise would have been arbitrarily
or indiscriminately exercised. The statute mandates that the
prosecution must prove compliance of the said provisions. If no
evidence is led by the prosecution, the Court will be entitled to draw
B the presumption thatthe procedure had not been complied with. For
the said purpose, there may not be any distinction between a person's ·-
place of ordinary residence and a room of a hotel.
[Para 17) [917-D, E, F)
2.5. Applying a sophisticated sense enhancing technology called
c thermal imaging, which when kept outside the residential house of
a person to ascertain as to whether the inmate has kept any narcotic
substance or not has been held to be infringement ofright of privacy
of the said person by the Supreme Court in the United States.
[Para 18) [917-F, G]
D Danny Lee Ky/lo v. United States [533 U.S. 27, 121S.Ct.2038, ~-
150 L.Ed.2d 9,4 referred to.
3.1. In the instant case, the statutory requirements had not been
complied with as the person who had received the first information
did not reduce the same in writing. An officer who received such
E
information was bound to reduce the same in writing and not the
person who hears thereabout. Furthermore, in this case, apart from
proving the fax and the copy of a challan nothing else has been
proved. The fax was illegible. [Para 19] [918-B, C]
3.2 In absence of the details, the fax being illegible and its
F
contents being not known, the question of the same being admissible
in evidence in terms of Section 67 of the Act would not arise. The
xeroxed copy of the said fax had not been proved in the strict sense
of the term. No secondary evidence could have been led to prove
another secondary evidence. Contents of document are required to
G be proved. The contents of a document could be held to have been
proved in terms of section 66 only when the contents are decipherable
,-
and not otherwise. [Para 19] [918-D, E, F]
R. VF Venkatachala Gounderv.Arulmigu Viswesaraswami & VP.
Temple. JT (2005) 11SC574; Narayanaswamy Ravishankarv. Asstt.
H
DIRECTORATEOFREVENUEv. MOHAMMEDNISAR 911
HO LIA [SINHA,J.]
Director, Directorate ofRevenue Intelligence, (2002] 8 SCC 7; Abdul A
Rashid Ibrahim Mansuri v. State of Gujarat, (2000] 2 SCC 513; The
State of West Bengal & Ors. v. Babu Chakraborty, JT (2004) 7 SC
216 and State ofHaryana v. Jarnail Singh & Ors., (2004] 5SCC188,
referred to.
Union of India v. Major Singh & Ors., (2006] 9 SCC 170, held B
inapplicable.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
311 of2002.
From the final Judgment and Order dated 19/20.12.2002 of the High
c
Court of Judicature at Bombay in Criminal Appeal No. 462of1999.
Ashok Bhan, Ajay Sharma and B. Krishna Prasad for the Appellants.
Harinder Mohan Singh, Kaushal Yadav, Praveen Kumar Singh and D
Ranveer Yadav for the Respondent.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Interpretation of the provisions of Sections 42
and 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 E
(NDPS Act) calls for our consideration in this appeal which has been filed
by the Directorate of Revenue against the respondent herein aggrieved
by and dissatisfied with a judgment and order dated 19 and 20 December,
2000 passed by a learned Single Judge of the High Court of Judicature
at Bombay in Criminal Appeal No. 462 of 1999 whereby and F
whereunder the judgment of conviction and sentence passed by a Special
Judge at Mumbai in NDPS Special Case No.221of1997 was reversed.
2. An information was received in the office of the appellant on
23.1.1997 that one person staying in Room No.305 or 306 at Hotel
Kalpana Palace, Grant Road, Mumbai was in possession of a fax copy G
of consignment note under which Mandrex tablets were being transported
from Delhi to Mumbai. The said information was passed on to PW-1,
Parmar. He reduced the same in writing. He in turn passed it placing same
by reducing it to writing before A.D. Patekar, Senior Intelligence Officer
H
912 SUPREME COURT REPORTS [2007] 12 S.C.R.
A (PW-10) allegedly as advised by Assistant Director, Atul Dixit, Assistant
Director. PW- I along with two other officers, namely, Dhani and Petkar
visited the said hotel. They came to know that the accused was staying
in Room No.306. Two of the employees of the said hotel were asked to
be panch witnesses. The door of the said room was knocked; Appellant
B opened it. He allegedly was given an option to get himself searched in
presence of a Gazetted Officer or a Magistrate. He opted for the former. ·-
He was searched ~y the said officers. A sum ofRs.4,25,000/- in cash
and a fax copy of a receipt of Green Carriers from Delhi showing the
consignment of medicine was found in the said room. A xeroxed copy of
C the said fax message was retained.
3. It appears that the statement of the accused was also recorded
in terms of Section 67 of the Act. The consignment arrived as per the
said receipt within a couple of days. Respondent herein was arrested on
27th January, 1997, inter alia, relying on or on the basis of recovery of
D the said fax message which was marked as Exhibit-8 and the purported
xerox copy thereof which was marked as Exhibit-8A.
4. The learned Trial Judge relying on the provisions of Section 66
of the NDPS Act held the respondent guilty of commission of an offence
E under Sections 8(c), 22 and 29 of the NDPS Act. He was not provided
any opportunity to be heard on the quantum of sentence. The minimum
sentence of 10 years and a fine ofRs.1,00,000/- was imposed on him.
5. On an appeal having been preferred against the said judgment of
conviction and sentence, the High Court, however, without going into the
F
other question, opined that as the statutory requirements of Section 42
of the Act had not been complied with, the judgment of the Trial Court
could not be sustained, holding :
"As observed earlier though the information seems to have been
G received by the office of DR!, it was not reduced to writing by
the officer who received it but by the PW- I, Parmar who was later
on conveyed the message by the office. Thus, there was no
compliance to Section 42(1) of the Act."
6. The High Court, in arriving at the said finding, principally relied
H
DIRECTORATEOFREVENUEv. MOHAMMEDNISAR 913
HOLIA[SINHA,J.]
upon the decisions of this Court in State ofPunjab v. Balbir Singh, AIR A
(1994) SC 1872; Karnail Singh v. State ofRajasthan, [2000] 7 SCC
632 and Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000)
AIR SCW 375 where the provisions of Section 42 were held to be
mandatory in nature.
B
-• 7. Mr. Ashok Bhan, learned counsel appearing on behalf of the
appellant, in support of this appeal, inter alia, would submit that as a
hotel is a public place within the meaning of Section 43 of the Act, it was
not necessary to comply with the provisions of Section 42 thereof.
8. Mr. Harinder Mohan Singh, learned amicus appearing on behalf C
of the Respondent, however, would support the judgment.
9. NDPS Act is a penal statute. It invades the rights of an accused
to a large extent. It raises a presumption of a culpable mental state.
Ordinarily, even an accused may not be released on bail having regard to D
Section 37 of the Act. The Court has the power to publish names,
address and business etc. of the offenders. Any document produced in
evidence becomes admissible. A vast power of calling for information upon
the authorities has been conferred by reason of Section 67 of the Act.
10. Interpretation and/or validity in regard to the power of search E
and seizure provided for under the said Act came up for consideration in
Balbir Singh 's case (supra), wherein it was held:
"11. tis thus clear that by a combined reading of Sections 41, 42,
43 and 51 of the NDPS Act and Section4 Cr. PC regarding arrest F
and search under Sections 41, 42 and 43, the provisions of Cr.
PC namely Sections 100 and 165 would be applicable to such
arrest and search. Consequently the Principles laid down by various
courts as discussed above regarding the irregularities and illegalities
in respect of arrest and search would equally be applicable to the G
arrest and search under the NDPS Act also depending upon the
facts and circumstances of each case.
12. But there are certain other embargos envisaged under Sections
41 and 42 of the NDPS Act. Only a magistrate so empowered
under Section 41 can issue a warrant for arrest and search where H
914 SUPREME COURT REPORTS [2007] 12 S.C.R.
A he has reason to believe that an offence under Chapter IV has been
committed so on and so forth as mentioned therein. Under Sub-
section (2) only a Gazetted Officer or other officers mentioned and
empowered therein can give an authorization to a subordinate to
arrest and search if such officer has reason to believe about the
B commission of an offence and after reducing the information, if any
into writing. Under Section 42 only officers mentioned therein and
so empowered can make the arrest or search as provided if they
have reason to believe from personal knowledge or information.
In both these provisions there are two important requirments. One
c is that the Magistrate or the Officers mentioned therein firstly be
empowered and they must have reason to believe that an offence
under Chapter IV has been committed or that such arrest or search
was necessary for other purposes mentioned in the provision. So
far as the first requirement is concerned, it can be seen that the
D Legislature intends to only certain Magistrates and certain Officers
of higher rank and empowered can act to effect the arrest or
search. This is a safeguard provided having regard to the deterrent
sentences contemplated and with a view that innocent persons are
not harassed. Therefore if an arrest or search contemplated under
E these provisions ofNDPS Act has to be carried out, the same can
be done only by competent and empowered Magistrates or
Officers mentioned thereunder."
11. Power to make search and seizure as also to arrest an accused
is founded upon and subject to satisfaction of the officer as the terms
F
"reason to believe" have been used. Such belief may be founded upon
secret information that may be orally conveyed by the informant. Draconian
provision which may lead to a harsh sentence having regard to the doctrine
of 'due process' as adumbrated under Article 21 of the Constitution of
India require striking of balance between the need oflaw and enforcement
G thereof, on the one hand, and protection of citizen from oppression and
injustice on the other.
12. This Court in Balbir Singh (supra) referring to Miranda v.
Arizona (1966) 384 US 436 while interpreting the provisions of the Act
H held that not only the provisions of Section 165 of the Code of Criminal
DIRECTORATE OF REVENUE v. MOHAMMED NI SAR 915
HOLIA[SINHA,J.]
~
Procedure would be attracted in the matter of search and seizure but the A
same must comply with right of the accused to be informed about the
requirement to comply with the statutory provisions.
13. Requirements of Section 42 was read into Section 43 of the
NDPS Act. A somewhat different view, however, was taken subsequently.
B
Decisions were rendered opining that in conducting search and seizure in
-·
public place or a moving vehicle, provisions appended to sub-section (1)
of Section 42 would not be attracted. Decisions were also rendered that
in such a case even sub-section (2) of Section 42 need not be complied
with.
c
14. Section 43, on plain reading of the Act, may not attract the
rigours of Section 42 thereof. That means that even subjective satisfaction
on the part of the authority, as is required under sub-section (1) of Section
42, need not be complied with, only because the place whereat search is
·r to be made is a public place. If Section 43 is to be treated as an exception D
to Section 42, it is required to be strictly complied with. An interpretation
which strikes a balance between the enforcement of law and protection
of the valuable human right of an accused must be resorted to. A
declaration to the effect that the minimum requirement, namely, compliance
of Section 165 of the Code of Criminal Procedure would serve the E
purpose may not suffice as non-compliance of the said provision would
not render the search a nullity. A distinction therefor must be borne in
mind that a search conducted on the basis of a prior information and a
case where the authority comes across a case of commission of an offence
under the Act accidentally or per chance. It is also possible to hold that F
rigours of the law need not be complied with in a case where the purpose
for making search and seizure would be defeated, if strict compliance
thereof is insisted upon. It is also possible to contend that where a search
is required to be made at a public place which is open to the general
public, Section 42 would have no application but it may be another thing G
to contend that search is being made on prior information and there would
be enough time for compliance of reducing the information to writing,
informing the same to the superior officer and obtain his permission as
also recording the reasons therefor coupled with the fact that the place
which is required to be searched is not open to public although situated H
916 SUPREME COURT REPORTS [2007] 12 S.C.R.
A in a public place as, for example, room of a hotel, whereas hotel is a public
place, a room occupied by a guest may not be. He is entitled to his right
of privacy. Nobody, even the staff of the hotel, can walk into his room
without his permission. Subject to the ordinary activities in regard to
maintenance and/or house keeping of the room, the guest is entitled to
B maintain his privacy. The very fact that the Act contemplated different
measures to be taken in respect of search to be conducted between sunrise
and sunset, between sunset and sunrise as also the private place and public
place is of some significance. An authority cannot be given an untrammeled
power to infiinge the right of privacy of any person. Even if a statute confers
C such power upon an authority to make search and seizure of a person at
all hours and at all places, the same may be held to be ultra vires unless
the restrictions imposed are reasonable ones. What would be reasonable
restrictions would depend upon the nature of the statute and the extent
of the right sought to be protected. Although a statutory power to make
D a search and seizure by itself may not offend the right of privacy but in a
case of this nature, the least that a court can do is to see that such a right
is not unnecessarily infringed. Right of privacy deals with persons and not
places.
15. A person, if he does not break a law would be entitled to enjoy
E his life and liberty which would include the right not to be disturbed. A
right to be let alone is recognized to be a right which would fall under
Article 21 of the Constitution of India. This Court in Sharda v.
Dharampal, [2003] 4 SCC 493 dealt with right of privacy to a certain
extent. The question came up for consideration in District Registrar and
F Collector, Hyderabad & Anr. v. Canara Bank & Ors., [2005] l SCC
496 wherein the provisions of Section 73 of the Stamp Act, as amended
by the State of Andhra Pradesh, was struck down holding :
"Once we have accepted in Gobind and in later cases that the
G right to privacy deals with "persons and not places", the documents
or copies of documents of the customer which are in a bank, must
continue to remain confidential vis-a-vis the person, even if they
are no longer at the customer's house and have been voluntarily
sent to a bank. If that be the correct view of the law, we cannot
H accept the line of Miller 30 in which the Court proceeded on the
DIRECTORATE OF REVENUE v. MOHAMMED NI SAR 917
HOLIA [SINHA, J.]
basis that the right to privacy is referable to the right of "property" A
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 B
duty, the search or taking notes or extracts therefore, cannot be
valid. The above safeguards must necessarily be read into the
provision relating to search and inspection and seizure so as to save
it from any unconstitutionality."
16. It is not in dispute that the said Act prescribes stringent
c
punishment. A balance, thus, must be struck in regard to the mode and
manner in which the statutory requirements are to be complied with vis-
a-vis the place of search and seizure.
·i 17. This Court times without number has laid great emphasis on D
recording of reasons before search is conducted on the premise that the
same would the earliest version which would be available to a court of
law and the accused while defending his prosecution. The provisions
contained in Chapter IV of the Act are a group of sections providing for
certain checks on exercise of the powers of the concerned authority which E
otherwise would have been arbitrarily or indiscriminately exercised. The
statute mandates that the prosecution must prove compliance of the said
provisions. If no evidence is led by the prosecution, the Court will be
entitled to draw the presumption that the procedure had not been complied
with. For the said purpose, we are of the opinion that there may not be F
any distinction between a person's place of ordinary residence and a room
of a hotel.
18. It may be placed on record that applying a sophisticated sense
enhancing technology called thermal imaging, which when kept outside
G
the residential house.of a person to ascertain as to whether the inmate
-1
has kept any narcotic substance or not has been held to be infringement
of right of privacy of the said person in the United States Supreme Court
decision of Danny Lee Kyllo v. United States [533 U.S. 27, 121 S.Ct.
2038, 150 L.Ed.2d 94, 01 Cal. Daily Op. Serv. 4749, 2001 Daily Journal
H
918 SUPREME COURT REPORTS (2007] 12 S.C.R.
A D.A.R. 5879, 14 Fla. L. Weekly Fed. S 329, 200 I DJCAR 2926]. The
court opined that :
"(I) use of sense-enhancing technology to gather any infonnation
regarding interior of home that could not otherwise have been
obtained without physical intrusion into constitutionally protected
B
area constitutes a Fourth amendment "search," and (2) use of
thennal imaging to measure heat emanating from home was search."
19. In the instant case, the statutory requirements had not been
complied with as the person who had rect:ived the first information did
C not reduce the same in writing. An officer who received such infonnation
was bound to reduce the same in writing and not for the person who hears
thereabout. Furthennore, in this case, apart from proving the fax and the
copy of a challan nothing else has been proved. The fax was illegible. It
allegedly was received in the PCO run by PW-17. He could not prove
D the contents of the fax. He also could not show when the same was
received and from whom. It has not been shown that the accused was
the person who obtained the said fax from PW-17. Furthennore, contents
of the said documents had not been proved. In absence of the
aforementioned details, the fax being illegible and its contents being not
E known, the question of the same being admissible in evidence in tenns of
Section 67 of the Act would not arise. The xeroxed copy of the said fax
had not been proved in the strict sense of the term. No secondary
evidence could have been led to prove another secondary evidence.
Contents of document are required to be proved. The contents of a
F document could be held to have been proved in tenns of section 66 only
when the contents are decipherable and not otherwise.
20. In R. V.F Venkatachala Gounder v. Arulmigu Viswesaraswami
& VP. Temple, JT (2005) 11 SC 574], this Court stated:
G "The learned counsel for the defendant-respondent has relied on
The Roman Catholic Mission v. The State ofMadras and Anr.
in support of his submission that a document not admissible in
evidence, though-brought on record, has to be excluded from
consideration. We do not have any dispute with the proposition
H of law so laid down in the abovesaid case. However, the present
DIRECTORATE OF REVENUE v. MOHAMMEDNISAR 919
HOLIA [SINHA, J.]
.., one is a case which calls for the correct position of law being made A
precise. Ordinarily an objection to the admissibility of evidence
should be taken when it is tendered and not subsequently. The
objections as to admissibility of documents in evidence may be
classified into two classes:- (i) an objection that the document which
is sought to be proved is itself inadmissible in evidence; and (ii) B
where the objection does not dispute the admissibility of the
document in evidence but is directed towards the mode of proof
alleging the same to be irregular or insufficient. In the first case,
merely because a document has been marked as 'an exhibit', an
objection as to its admissibility is not excluded and is available to c
be raised even at a later stage or even in appeal or revision. In the
latter case, the objection should be taken before the evidence is
tendered and once the document has been admitted in evidence
and marked as an exhibit, the objection that it should not have been
admitted in evidence or that the mode adopted for proving the D
document is irregular cannot be allowed to be raised at any stage
subsequent to the marking of the document as an exhibit. The later
proposition is a rule of fair play. The crucial test is whether an
objection, iftaken at the appropriate point of time, would have
enabled the party tendering the evidence to cure the defect and E
resort to such mode of proof as would be regular. The omission
to object becomes fatal because by his failure the party entitled to
object allows the party tendering the evidence to act on an
assumption that the opposite party is not serious about the made
of proof. On the other hand, a prompt objection does not F
-I
prejudice the party tendering the evidence, for two reasons; firstly,
it enables the Court to apply its mind and pronounce its decision
on the question of admissibility then and there; and secondly, in
the event of finding of the Court on the mode of proof sought to
be adopted going against the party tendering the evidence the G
opportunity of seeking indulgence of the Court for permitting a
-.., regular mode or method of proof and thereby removing the
objection raised by the opposite party, is available to the party
leading the evidence. Such practice and procedure is fair to both
the parties. Out of the two types of objections, referred to H
920 SUPREME COURT REPORTS [2007] 12 S.C.R.
A hereinabove in the later case, failure to raise a prompt and timely
objection amounts to waiver of the necessity for insisting on formal
proof of a document, the document itself which is sought to be
proved being admissible in evidence. In the fust case, acquiescence
would be no bar to raising the objection in superior Court."
B
21. In Narayanaswamy Ravishankar v. Asstt. Director,
Directorate of Revenue Intelligence, [2002] 8 SCC 7, while dealing
with search and seizure at a public place, this Court opined :
"In the instant case, according to the documents on record and
c the evidence of the witnesses, the search and seizure took place
at the airport which is a public place. This being so, it is the
provisions of Section 43 of the NDPS Act which would be
applicable. Further, as Section 42 of the NDPS Act was not
applicable in the present case, the seizure having been effected in
D a public place, the question of non-compliance, if any, of the
provisions of Section 42 of the NDPS Act is wholly irrelevant.
Furthermore, in the rnahazar which was prepared, it is clearly stated
that the seizure was made by PW 1. The mahaz.ar was no doubt
drawn by one S. Jayanth. But, the contention of the learned Senior
E Counsel that the prosecution version is vulnerable, because Jayanth
has not been examined, is of no consequence because it is PW 1
who has conducted the seizure. With regard to the alleged non-
compliance of Section 57 of the NDPS Act, the High Court has
rightly noted that PW 3 has stated that the arrest of the accused
F was revealed to his immediate superior officer, namely, the Deputy
Director."
22. In Abdul Rashid Ibrahim Mansuri v. State ofGujarat, [2000]
2 SCC 513, this Court stated :
G "18. When the same decision considered the impact of non-
compliance with Section 50 it was held that "it would affect the
prosecution case and vitiate the trial". But the Constitution Bench
has settled the legal position concerning that aspect in State of
Punjab v. Baldev Singh the relevant portion of which has been
H extracted by us earlier. We do not think that a different approach
~
DIRECTORATE OF REVENUE v. MOHAMMED NISAR 921
HOLIA[SINHA,J.]
' is warranted regarding non-compliance with Section 42 also. If A
that be so, the position must be the following :
If the officer has reason to believe from personal knowledge or
prior information received from any person that any narcotic drug
or psychotropic substance (in respect of which an offence has been
B
committed) is kept or concealed in any building, conveyance or
enclosed place, it is imperative that the officer should take it down
in writing and he shall forthwith send a copy thereof to his immediate
official superior. The action of the officer, who claims to have
exercised it on the strength of such unrecorded information, would
become suspect, though the trial may not vitiate on that score alone.
c
Nonetheless the resultant position would be one of causing
prejudice to'the accused."
[See also The State of West Bengal & Ors. v. Babu Chakraborty,
{ JT (2004) 7 SC 216] D
23. In State of Haryana v. Jarnail Singh & Ors., [2004] 5 SCC
188, this Court, while dealing with the provisions of Section 43 of the
NDPS Act, opined:
"8. Section 43 of the NDPS Act provides that any officer of any E
of the Departments mentioned in Section 42 may seiz.e in any public
place or in transit any narcotic drug or psychotropic substance,
etc. in respect of which he has reason to believe that an offence
punishable under the Act has been committed. He is also authorised
to detain and search any person whom he has reason to believe F
to have committed an offence punishable under the Act.
Explanation to Section 43 lays down that for the purposes of this
section, the expression "public place" includes any public
conveyance, hotel, shop, or other place intended for use by, or
accessible to, the public." G
24. This Court in Union ofIndia v. Major Singh & Ors., [2006]
-,
9 sec 170, whereupon reliance has been placed by thelearned counsel,
held:
"Turning now to Section 42(2) of the Act, in this regard, it may H
922 SUPREME COURT REPORTS [2007] 12 S.C.R.
A be stated that from the prosecution case and evidence it would be
clear that the search and seizure was made of a public carrier at a
public place and 127 bags of poppy straw (opium) were seized
from a public carrier.
The said decision has no application in the instant case.
B
25. For the foregoing reasons, we are of the opinion that the
impugned judgment does not suffer from any legal infirmity. There is no
merit in the appeal. It is dismissed accordingly.
C S.K.S. Appeal dismissed.
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