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TMI Blog2007 (12) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... i to Mumbai. The said information was passed on to PW-1, Parmar. He reduced the same in writing. He in turn passed it placing same by reducing it to writing before A.D. Patekar, Senior Intelligence Officer (PW- 10) allegedly as advised by Assistant Director, Atul Dixit, Assistant Director. PW-1 along with two other officers, namely, Dhani and Petkar visited the said hotel. They came to know that the accused was staying in Room No.306. Two of the employees of the said hotel were asked to be panch witnesses. The door of the said room was knocked; Appellant opened it. He allegedly was given an option to get himself searched in presence of a Gazetted Officer or a Magistrate. He opted for the former. He was searched by the said officers. A sum of Rs.4,25,000/- in cash and a fax copy of a receipt of Green Carriers from Delhi showing the consignment of medicine was found in the said room. A xeroxed copy of the said fax message was retained. 3. It appears that the statement of the accused was also recorded in terms of Section 67 of the Act. The consignment arrived as per the said receipt within a couple of days. Respondent herein was arrested on 27th January, 1997, inter alia, relying on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the power of search and seizure provided for under the said Act came up for consideration in Balbir Singh's case (supra), wherein it was held : "11. It is thus clear that by a combined reading of Sections 41, 42, 43 and 51 of the NDPS Act and Section 4 Cr. PC regarding arrest and search under Sections 41, 42 and 43, the provisions of Cr. PC namely Sections 100 and 165 would be applicable to such arrest and search. Consequently the Principles laid down by various courts as discussed above regarding the irregularities and illegalities in respect of arrest and search would equally be applicable to the arrest and search under the NDPS Act also depending upon the facts and circumstances of each case. 12. But there are certain other embargos envisaged under Sections 41 and 42 of the NDPS Act. Only a magistrate so empowered under Section 41 can issue a warrant for arrest and search where he has reason to believe that an offence under Chapter IV has been committed so on and so forth as mentioned therein. Under Sub-section (2) only a Gazetted Officer or other officers mentioned and empowered therein can give an authorization to a subordinate to arrest and search if such officer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehicle, provisions appended to sub-section (1) of Section 42 would not be attracted. Decisions were also rendered that in such a case even sub-section (2) of Section 42 need not be complied with. 14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of Section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A distinction therefor must be borne in mind that a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia. This Court in Sharda v. Dharampal [(2003) 4 SCC 493] dealt with right of privacy to a certain extent. The question came up for consideration in District Registrar and Collector, Hyderabad & Anr. v. Canara Bank & Ors. [(2005) 1 SCC 496] wherein the provisions of Section 73 of the Stamp Act, as amended by the State of Andhra Pradesh, was struck down holding : "Once we have accepted in Gobind and in later cases that the right to privacy deals with "persons and not places", the documents or copies of documents of the customer which are in a bank, must continue to remain confidential vis-a-vis the person, even if they are no longer at the customer's house and have been voluntarily sent to a bank. If that be the correct view of the law, we cannot accept the line of Miller 30 in which the Court proceeded on the basis that the right to privacy is referable to the right of "property" theory. Once that is so, then unless there is some probable or reasonable cause or reasonable basis or material before the Collector for reaching an opinion that the documents in the possession of the bank tend to secure any duty or to prove or to lead to the discovery of any fraud or omission in relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educe the same in writing. An officer who received such information was bound to reduce the same in writing and not for the person who hears thereabout. Furthermore, in this case, apart from proving the fax and the copy of a challan nothing else has been proved. The fax was illegible. It allegedly was received in the PCO run by PW-17. He could not prove the contents of the fax. He also could not show when the same was received and from whom. It has not been shown that the accused was the person who obtained the said fax from PW-17. Furthermore, contents of the said documents had not been proved. In absence of the aforementioned details, the fax being illegible and its contents being not known, the question of the same being admissible in evidence in terms of Section 67 of the Act would not arise. The xeroxed copy of the said fax had not been proved in the strict sense of the term. No secondary evidence could have been led to prove another secondary evidence. Contents of document are required to be proved. The contents of a document could be held to have been proved in terms of section 66 only when the contents are decipherable and not otherwise. 20. In R.V.F. Venkatachala Gounder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of proof sought to be adopted going against the party tendering the evidence the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court." 21. In Narayanaswamy Ravishankar v. Asstt. Director, Directorate of Revenue Intelligence [(2002) 8 SCC 7], while dealing with search and seizure at a public place, this Court opined : "In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance, etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorised to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public." 24. This Court in Union of India v. Major Singh & Ors. [(2006) 9 SCC 170], whereupon reliance has been placed by thelearned counsel, held : "Turning now to Section 42(2) of the Act, in this regard, it may be stated that from the prosecution case and evidence it would be clear that the search and seizure was made of a public carrier at a public place and 127 bags of poppy straw (opium) were seized from a public carrier. The said decision has no application in the instant case. 25. For the foregoing reasons, we are of the opinion that the impugned judgment does not suffer from any legal infirmi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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