TMI Blog2007 (12) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... eing illegible and its contents being not known, the question of the same being admissible in evidence in terms of Section 67 of the Act would not arise. The xeroxed copy of the said fax had not been proved in the strict sense of the term. No secondary evidence could have been led to prove another secondary evidence. Contents of document are required to be proved. The contents of a document could be held to have been proved in terms of section 66 only when the contents are decipherable and not otherwise. Appeal dismissed. - CRL.A. 311 OF 2002 - - - Dated:- 5-12-2007 - S.B. Sinha and Harjit Singh Bedi, JJ. JUDGMENT 1. Interpretation of the provisions of Sections 42 and 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) calls for our consideration in this appeal which has been filed by the Directorate of Revenue against the respondent herein aggrieved by and dissatisfied with a judgment and order dated 19 and 20 December, 2000 passed by a learned Single Judge of the High Court of Judicature at Bombay in Criminal Appeal No.462 of 1999 whereby and whereunder the judgment of conviction and sentence passed by a Special Judge at Mumbai in NDPS Special Cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the office of DRI, it was not reduced to writing by the officer who received it but by the PW-1, Parmar who was later on conveyed the message by the office. Thus, there was no compliance to Section 42(1) of the Act." 6. The High Court, in arriving at the said finding, principally relied upon the decisions of this Court in State of Punjab v. Balbir Singh [AIR 1994 SC 1872]; Karnail Singh v. State of Rajasthan [(2000) 7 SCC 632]; and Abdul Rashid Ibrahim Mansuri v. State of Gujarat [2000 AIR SCW 375] where the provisions of Section 42 were held to be mandatory in nature. 7. Mr. Ashok Bhan, learned counsel appearing on behalf of the appellant, in support of this appeal, inter alia, would submit that as a hotel is a public place within the meaning of Section 43 of the Act, it was not necessary to comply with the provisions of Section 42 thereof. 8. Mr. Harinder Mohan Singh, learned amicus appearing on behalf of the Respondent, however, would support the judgment. 9. NDPS Act is a penal statute. It invades the rights of an accused to a large extent. It raises a presumption of a culpable mental state. Ordinarily, even an accused may not be released on bail having regard to Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt sentences contemplated and with a view that innocent persons are not harassed. Therefore if an arrest or search contemplated under these provisions of NDPS Act has to be carried out, the same can be done only by competent and empowered Magistrates or Officers mentioned thereunder." 11. Power to make search and seizure as also to arrest an accused is founded upon and subject to satisfaction of the officer as the terms "reason to believe" have been used. Such belief may be founded upon secret information that may be orally conveyed by the informant. Draconian provision which may lead to a harsh sentence having regard to the doctrine of 'due process' as adumbrated under Article 21 of the Constitution of India require striking of balance between the need of law and enforcement thereof, on the one hand, and protection of citizen from oppression and injustice on the other. 12. This Court in Balbir Singh (supra) referring to Miranda v. Arizona [(1966) 384 US 436] while interpreting the provisions of the Act held that not only the provisions of Section 165 of the Code of Criminal Procedure would be attracted in the matter of search and seizure but the same must comply with right of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public place, a room occupied by a guest may not be. He is entitled to his right of privacy. Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in regard to maintenance and/or house keeping of the room, the guest is entitled to maintain his privacy. The very fact that the Act contemplated different measures to be taken in respect of search to be conducted between sunrise and sunset, between sunset and sunrise as also the private place and public place is of some significance. An authority cannot be given an untrammeled power to infringe the right of privacy of any person. Even if a statute confers such power upon an authority to make search and seizure of a person at all hours and at all places, the same may be held to be ultra vires unless the restrictions imposed are reasonable ones. What would be reasonable restrictions would depend upon the nature of the statute and the extent of the right sought to be protected. Although a statutory power to make a search and seizure by itself may not offend the right of privacy but in a case of this nature, the least that a court can do is to see that such a right is not unn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the concerned authority which otherwise would have been arbitrarily or indiscriminately exercised. The statute mandates that the prosecution must prove compliance of the said provisions. If no evidence is led by the prosecution, the Court will be entitled to draw the presumption that the procedure had not been complied with. For the said purpose, we are of the opinion that there may not be any distinction between a person's place of ordinary residence and a room of a hotel. 18. It may be placed on record that applying a sophisticated sense enhancing technology called thermal imaging, which when kept outside the residential house of a person to ascertain as to whether the inmate has kept any narcotic substance or not has been held to be infringement of right of privacy of the said person in the United States Supreme Court decision of Danny Lee Kyllo v. United States [533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94, 01 Cal. Daily Op. Serv. 4749, 2001 Daily Journal D.A.R. 5879, 14 Fla. L. Weekly Fed. S 329, 2001 DJCAR 2926]. The court opined that : "(1) use of sense-enhancing technology to gather any information regarding interior of home that could not otherwise have been obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [(2000) 2 SCC 513], this Court stated : "18. When the same decision considered the impact of non-compliance with Section 50 it was held that "it would affect the prosecution case and vitiate the trial". But the Constitution Bench has settled the legal position concerning that aspect in State of Punjab v. Baldev Singh the relevant portion of which has been extracted by us earlier. We do not think that a different approach is warranted regarding non-compliance with Section 42 also. If that be so, the position must be the following : If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised it on the strength of such unrecorded information, would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of caus ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
