CHAPTER 2 – FACTS THAT MUST BE PROVED

SECTION 1 – ADMISSIBILITY AND RELEVANCY

The legal rule that governs the admissibility of evidence in a civil or criminal trial in India is laid
down in section 5 of the Indian Evidence Act, 1872 (IEA). Section 5 of the IEA, which must
necessarily be read with section 3, lay down the following rules –

Section 5. Evidence may be given of facts in issue and relevant facts.

– Evidence may be given in any suit or proceeding of the existence or non-
existence of every fact in issue and of such other facts as are hereinafter
declared to be relevant, and of no others

Explanation. – This section shall not enable any person to given evidence of a
fact which he is disentitled to prove by any provision of the law for the time
being in force relating to Civil Procedure.

Section 3. Interpretation Clause. – “Facts in Issue”. – The expression

“facts in issue” means and includes –
any fact from which, either by itself or in connection with other facts, the
existence, non-existence, nature or extent of any right, liability, or disability,
asserted or denied in any suit or proceeding, necessarily follows.

Explanation. – Whenever, under the provisions on the law for the time being
in force relating to Civil Procedure, any Court records an issue of fact, the fact
to be asserted or denied in the answer to such issue is a fact in issue.

To better understand the fundamental rule of admissibility in India, it would be useful to see the
place at which section 5 appears in the IEA. Section 5 is the first section in Chapter II of the IEA.
The heading of Chapter II say – “Of the Relevancy of Facts”. There are a total of 55 sections in
Chapter II (including section 5) and all of them are declaratory in nature i.e. they declare certain
facts to be relevant thus enabling the admissibility of evidence proving the existence or non-
existence of those facts. But not all provisions in Chapter II are positive-declarations. Some, most
famously section 25, are negative declarations that make otherwise relevant facts inadmissible.
Some of these provisions that are most routinely used in courts are section 6 (Relevancy of facts
forming part of same transaction, also known as Doctrine of Res Gestae), section 7 (Facts which
are the occasion, cause or effect of facts in issue), section 8 (Motive, preparation and previous or
subsequent conduct), section 9 (Facts necessary to explain or introduce relevant facts, but in
practice most commonly used in criminal litigation to admit the evidence of Test Identification
Parade), section 10 (Conspirator’s evidence), section 17 (Admissions), sections 24-30
(Confessions), section 32 (Dying Declarations), sections 45-47 (Expert Evidence), sections 52-55
(Character Evidence). Some of the more important provisions are dealt with in greater detail in
later chapters of this book.

It is a generally accepted proposition in India that the IEA, “… is largely a codification, with certain
variations, of the English law of evidence, as it stood when Sir James Fits-James Stephens drafted
it. Therefore, in order to fully grasp the significance of its provisions we have to sometimes turn
to its sources in English law which attained something resembling clarity only by stages.” (See
Gavate v. State of Maharashtra, (1977) 1 SCC 133). Cross and Tapper (11th Edn., p. 4) have cited the
Indian Evidence Act, 1872 as the model, “… which still forms the basis of a number of Evidence
Ordinances in the Commonwealth.” It will be therefore beneficial to briefly consult the common
law position on this point. A ‘fact-in-issue’ and ‘facts relevant to the issue’, at common law, are
defined in the following terms (Phipson, ¶ 7-02, internal citations omitted) –

Facts in issue, which are sometimes called “principal” facts, are those necessary by law to establish the
claim, liability or defence, forming the subject-matter of the proceedings; and which are in dispute between
the parties.

Facts relevant to the issue, which are sometimes called “evidentiary” facts, are facts which tend, either
directly or indirectly, to prove or disprove a fact in issue.

Cross and Tapper (11th Edn.) put forth the legal position in slightly different words, creating a
distinction between substantive facts in issue and subordinate or collateral facts in issue (p. 30,
internal citations omitted). As one reads through the distinction drawn by Cross and Tapper one
cannot help but notice that their distinction is based on burden of proving those facts –

There are two principal types of facts in issue: those that are in issue as a matter of substantive law; and
those that are in issue as a matter of law of evidence itself. The main facts in issue are all those facts that
the claimant in a civil action, or the prosecutor in criminal proceedings, must prove in order to succeed,
together with any further facts that the defendant or accused must prove in order to establish a defence.

Subordinate or collateral facts that may be in issue are those affecting the competence or credibility of a
witness and those affecting the admissibility or cogency of certain items of evidence; they may be in issue
in a particular case on account of the law of evidence itself, and not on account of the substantive law or
statements of case.

The technical rule of admissibility is based on relevancy. Facts-in-issue are relevant facts. But
section 5 of the IEA does not limit it to facts in issue alone as it says that evidence may be given
of the facts in issue and of other relevant facts. Therefore, in simplest terms, all relevant evidence
is admissible. This proposition is discussed in detail in the cases and the discussion that follows.
But before beginning that discussion it is important to note that a very big body of the common
law of evidence is based on the Best Evidence Rule. Phipson calls it (¶ 7-40) ‘the great fundamental
principle upon which the law of evidence depends’. Therefore the rule, at common law, all the
best relevant evidence is admissible. In simpler words, a litigant was expected to lead the best
evidence that he could in his case. Phipson (¶7-41) traces the history of this rule back to a very old
British legal precedent Ford v. Hopkins, (1700) 1 Salk. 283. Later developments at common law
took place as exceptions were made to the Best Evidence Rule. Therefore, notes Phipson (¶¶ 7-42,
43) –

… what were once objections to admissibility now went merely to sufficiency or weight; or what was
insufficient came to suffice. … it began to be recognized that a prudent relaxation of strict rules tended not
to encourage fraud or concealment, but to effect economy, convenience and dispatch, while the risk of
losing their cases was found to supply the parties with an ample inducement still to procure the best
evidence available. … In the present day, then, it is not true that the best evidence must, or even may,
always be given, though its non-production may be a matter for comment, or affect the weight of that
which is produced.
Let us begin by examining a few leading Supreme Court opinions in which the question of
admissibility of evidence have been raised. In these cases the law on the point has been
authoritatively laid down by the Supreme Court. We will closely examine three leading Supreme
Court opinions on the point, two of which are 5 judge constitution bench opinions. In the
comments and discussion that follows the case certain other Supreme Court as well as British and
American appellate court opinions (generally supreme court but not always limited to those) have
been discussed. The comparative discussion is profitable especially when we have to deal with a
question on which despite the law being settled is still sometimes contested – the admissibility of
illegally obtained evidence?

R. M. MALKANI V. STATE OF MAHARASHTRA

(1973) 1 SCC 471
Bench – Justices A. N. Ray & I. D. Dua

Justice Ray (for the Court)

This is an appeal by certificate from the
judgment dated October 8 and 9, 1969 of the
High Court at Bombay convicting the
appellant Under Sections 161 and 385 of the
Indian Penal Code. The High Court
confirmed the substantive sentence to simple
imprisonment for six months Under Section
161 of the Indian Penal Code and simple
imprisonment for three months under
Section 385 of the Indian Penal Code. In
addition, the High Court imposed on the
appellant a fine of Rs. 10,000 and in default
of payment of fine, further simple
imprisonment for six months.
The appellant was at the crucial time the
Coroner of Bombay. The prosecution case was
as follows. Jagdishprasad Ramnarayan
Khandelwal was admitted to the nursing
home of a Gynaecologist Dr. Adatia on 3 May,
1964. Dr. Adatia, diagnosed the case as acute
appendicitis. Dr. Adatia kept the patient
under observation. After 24 hours the
condition of the patient became serious. Dr.
Shantilal J. Mehta was called. His diagnosis
was acute appendicitis with “generalised
peritonitis” and he advised immediate
operation. Dr. Adatia performed the
operation. The appendix, according to Dr.
Adatia had become gangrenous. The patient
developed paralysis of the ileum. He was
removed to Bombay Hospital on May 10, 1964
to be under the treatment of Dr. Motwani.
The patient died on May 13, 1964. The
Hospital issued a Death Intimation Card as
“paralytic ileus and peritonitis following an
operation for acute appendicitis”.
The appellant allowed the disposal of the
dead body without ordering post-mortem.
There was however a request for an inquest
from the Police Station. The cause for the
inquest was that his was a case of post
operation death in a hospital. The Coroner’s
Court registered the inquest on May 13,
1964. The dates for inquest were in the
months of June, July, September and
October, 1964. The appellant was on leave for
some time in the months of June and July,
1964. This is said to delay the inquest.
It was the practice of the Coroner’s Court to
send letters to professional people concerned
in inquest to get the explanation of the Doctor
who treated or operated upon the patient.
The appellant on October 3, 1964 made an
order that Mr. Adatia be called. It is alleged
that the appellant had told Dr. Adatia a few
days earlier that though he might have
operated satisfactorily the cause of death
given by the hospital would give rise to a
presumption of negligence on his part. Dr.
Adatia was asked by the appellant to meet
Dr. Motwani, so that the latter could get in
touch with the appellant to resolve the
technical difficulties. Dr. Motwani met the
appellant on October 3, 1964. The appellant
told Dr. Motwani that Dr. Adatia was at fault
but he might be cleared of the charge in the
inquest. The appellant asked for a sum of Rs.
20,000. Dr. Motwani said that he would
consult Dr. Adatia. Dr. Motwani conveyed the
proposal to Dr. Adatia. The latter refused to
pay any illegal gratification. Dr. Motwani
intimated the same to the appellant. The
appellant then reduced the demand to Rs.
10,000. Dr. Adatia also refused to pay the
same.
On October 4, the appellant got in touch with
Dr. Jadhav, Superintendent of the Bombay
Hospital to find out if the cause of death given
in the Hospital Card could be substantiated.
Dr. Motwani told Dr. Jadhav on the same day
that incorrect cause of death was shown and
great injustice was done to Dr. Adatia. Dr.
Jadhav said that he would send an amended
deposition to the Coroner, the appellant.
On October 5, 1964 Dr. Motwani and Dr
Adatia decided to lodge a complaint with the
Anti-Corruption Bureau. Dr. Adatia’s
Nursing Home got messages on the telephone
to get in touch with the appellant. Dr. Adatia
complained to Dr. Motwani of the
harassment on the telephone. Dr. Motwani
rang up the appellant. The appellant asked
Dr. Motwani to intimate by 10 a.m. on
October 7, whether Dr. Adatia was willing to
pay Rs. 10,000. Dr. Motwani rang up Mugwe,
Director of the Anti Corruption Branch and
complained that a higher Government official
was demanding a heavy bribe from a Doctor.
Mugwe then arranged for his staff to be
present near Dr. Motwani’s residence on the
morning of October 7, with the tape recording
equipment to record on the tape the
telephonic conversation.
On October 7, 1964, Mugwe and the
Assistant Commissioner of Police Sawant
went to Dr. Motwani’s residence. They met
Dr. Motwani and Dr. Adatia. When they
commenced recording the First Information
Report of Dr. Motwani, Dr. Adatia left for his
Nursing Home. Mugwe then arranged for the
tape recording equipment to be attached to
the telephone of Dr. Motwani. Dr. Motwani
was asked by Mugwe to ring up the appellant
in the presence of Mugwe and other Police
Officers about the appellant’s demand for the
money. Dr. Motwani rang up the appellant
and spoke with him. Dr. Motwani reported
the gist of the talk to Mugwe. Mugwe then
asked Dr. Motwani to ring up Dr. Adatia to
speak on certain special points. After the talk
with Dr. Adatia Dr. Motwani was asked by
Mugwe to ring up the appellant and ask for
an appointment to discuss the matter
further. Dr. Motwani rang up the appellant
and an appointment was made to meet the
appellant at 12 noon the same day. The
conversation between Dr. Motwani and the
appellant and the conversation between Dr.
Motwani and Dr. Adatia are all recorded on
the tape.
The two Doctors Motwani and Adatia met the
appellant in the Coroner’s Chamber at 12
noon. The appellant raised the demand to Rs.
15,000 and said that Rs. 5,000 was to be paid
to Coroner’s Surgeon for giving an opinion in
favour of Dr. Adatia. The appellant said that
if the amount was not paid the police
Surgeon’s opinion would be incorporated in
the case. The two Doctors went out of the
Chamber for a while. Dr. Adatia then told the
appellant that he would pay the appellant Rs.
15.000 on October 9, 1964.
Dr. Adatia paid Rs. 15,000 to Dr. Motwani.
Dr. Motwani took the amount to his house.
Dr. Motwani informed the appellant on the
telephone that he had received the money
from Dr. Adatia. The appellant asked Dr.
Motwani to keep it. The appellant also told
Dr. Motwani to bring the money to the
appellant’s house on October 10, 1964. On
October 10, the Assistant Commissioner
Sawant came to Dr. Motwani’s residence and
asked him to go to the appellant’s residence
to fix up an appointment for payment of
money. Dr. Motwani went to the appellant’s
house on October 10, 1964 at 10 a.m. The
appellant was not in the house. The
appellant’s wife was there. Dr. Motwani told
her that he had come to pay the money. The
appellant’s wife said that he could pay her.
Dr. Motwani said that he had no instructions
to pay. As Dr. Motwani was leaving the
building Sawant, the Assistant
Commissioner met him: Sawant asked Dr.
Motwani to come to Dr. Adatia to ring up the
appellant from there.

The Police Officers and Dr. Motwani met at
the residence of Dr. Adatia at about 4 p.m.
The raiding party connected the tape
recorder to the telephone mechanism of Dr.
Motwani. Dr. Motwani dialed the appellant’s
residence and spoke with the appellant in the
presence of the Police Officers. The
conversation was also recorded on the tape. It
was arranged at the talk that Dr. Motwani
would pay the amount to the appellant’s wife
on October 12, 1964. Dr. Motwani was asked
to take a letter addressed to the appellant
stating that he was returning a loan of Rs.
15,000 which he had taken at the time of
buying a flat.
On October 11, 1964, Dr. Motwani received a
telephone call from the appellant asking Dr.
Motwani to come to his residence to meet the
person to whom the money was to be paid. Dr.
Motwani declined to go then. On October 12,
1964 the appellant told Dr. Motwani that the
appointment was cancelled because he had
not come to the appellant’s residence on
October 11. Dr. Motwani conveyed the news
to the Assistant Commissioner. Mugwe then
ordered an open investigation into the case.
The appellant was charged under Sections
161, 385 and 420 read with Section 511 of the
Indian Penal Code. Broadly stated, the
charges against the appellant were these. He
attempted to obtain from Dr. Adatia through
Dr. Motwani a sum of Rs. 20,000 which was
later reduced to Rs. 10,000 and which was
then raised to Rs. 15,000 as gratification for
doing or forbearing to do official acts. He put
Dr. Adatia in fear of injury in body, mind,
reputation and attempted dishonestly to
induce Dr. Adatia and Dr. Motwani to pay the
sum of money. The appellant was also
charged with cheating for having falsely
represented to Dr. Adatia and Dr. Motwani
that Rs. 5,000 out of the amount of Rs. 10,000
was required to be paid to the Police Surgeon
for obtaining his favourable opinion.
The appellant denied that he demanded any
amount through Dr. Motwani. He also denied
that he threatened Dr. Adatia of the
consequence of an inquest.
Four questions were canvassed in this
appeal. The first contention was that the trial
Court and the High Court erred in admitting
the evidence of the telephonic conversation
between Dr. Motwani and the appellant
which was recorded on the tape. The evidence
was illegally obtained in contravention of
Section 25 of the Indian Telegraph Act and
therefore the evidence was inadmissible. …
The trial Court as well as the High Court
found that the evidence of Dr. Motwani and
Dr. Adatia needed corroboration. The High
Court found that the conversation recorded
on the tape corroborated their evidence. The
evidence of Dr. Motwani is that on October 7,
1964, Mugwe accompanied by Sawant and
members of the Police staff went to the
residence of Dr. Motwani. Mugwe directed
Sawant to record Dr. Motwani's statement.
Mugwe had instructed his staff to bring a
tape recording machine. After the statement
of Dr. Motwani Mugwe connected the tape
recording machine to Dr. Motwani's phone
and asked Dr. Motwani to talk to any one he
liked in order to test whether the tape
recording machine was in order. Motwani
was then asked to talk to the appellant.
Motwani talked with the appellant. That
conversation was recorded on the tape. This
tape recorded conversation is challenged by
counsel for the appellant to be inadmissible
because it infringes Articles 20(3) and 21 of
the Constitution and is an offence under
Section 25 of the Indian Telegraph Act.
Section 25 of the Indian Telegraph Act 1885
states that if any person intending (b) to
intercept or to acquaint himself with the
contents of any message damages, removes,
tampers with or touches any battery,
machinery, telegraph line, post or other thin
whatever, being part of or used in or about
any telegraph or in the working thereof he
shall be punished with imprisonment for a
term which may extend to three years, or
with fine, or with both. “Telegraph” is defined
in the Indian Telegraph Act in Section 3 to
mean any appliance, instrument, material or
apparatus used or capable of use for
transmission or reception of signs, signals,
writing, images and sounds or intelligence of
any nature by wire, visual or other electro-
magnetic emissions, radio waves or Hertzian
waves, galvanie, electric or magnetic means.
Counsel for the appellant submitted that
attaching the tape recording instrument to
the telephone instrument, of Dr. Motwani
was an offence under Section 25 of the Indian
Telegraph Act. It was also said that if a Police
Officer intending to acquaint himself with
the contents of any message touched
machinery or other thing whatever used in or
about or telegraph or in the working thereof
he was guilty of an offence under the
Telegraph Act. Reliance was placed on rule
149 of the Telegraph Rules which states that
it shall be lawful for the Telegraph Authority
to monitor or intercept a message or
messages transmitted through telephone, for
the purpose of verification of any violation of
these rules or for the maintenance of the
equipment. This Rule was referred to for
establishing that only the Telegraph
Authorities could intercept message under
the Act and Rules and a Police Officer could
not.
In the present case the High Court held that
the telephone call put by Dr. Motwani to the
appellant was tapped by the Police Officers,
and, therefore, there was violation of Section
25 of the Indian Telegraph Act. But the High
Court held that the tape recorded
conversation was admissible in evidence in
spite of the violation of the Telegraph Act.
The Police Officer in the present case fixed
the tape recording instrument to the
telephone instrument with the authority of
Dr. Motwani. The Police Officer could not be
said to intercept any message or damage or
tamper or remove or touch any machinery
within the meaning of Section 25 of the
Indian Telegraph Act. The reason is that the
Police Officer instead of hearing directly the
oral conversation between Dr. Motwani and
the appellant recorded the conversation with
the device of the tape recorder. The substance
of the offence under Section 25 of the Indian
Telegraph Act is damaging, removing,
tampering, touching machinery battery line
or post for interception or acquainting oneself
with the contents of any message. Where a
person talking on the telephone allows
another person to record it or to hear it it can-
not be said that the other person who is
allowed to do so is damaging, removing,
tampering, touching machinery battery line
or post for intercepting or acquainting
himself with the contents of any message.
There was no element of coercion or
compulsion in attaching the tape recorder to
the telephone. There was no violation of the
Indian Telegraph Act. The High Court is in
error on that point.
This Court in N. Sri Rama Reddy v. V. V.
Giri, (1970) 2 SCC 340, Y. E. Nagree v. State
of Maharashtra, AIR 1968 SC 147 and S.
Pratap Singh v. State of Punjab, AIR 1964 SC
72 accepted conversation or dialogue
recorded on a tape recording machine as
admissible evidence. In Nagree’s case the
conversation was between Nagree and
Sheikh. Nagree was accused of offering bribe
to Sheikh.
In the Presidential Election case questions
were put to a witness Jagat Narain that he
had tried to dissuade the petitioner from
filing an election petition. The witness denied
those suggestions. The election petitioner
had recorded on tape the conversation that
had taken place between the witness and the
petitioner. Objection was taken to
admissibility of tape recorded conversation.
The Court admitted the tape recorded
conversation. In the Presidential Election
case the denial of the witness was being
controverted, challenged and confronted with
his earlier statement. Under Section 146 of
the Evidence Act questions might be put to
the witness to test the veracity of the witness.
Again under Section 153 of the Evidence Act
a witness might be contradicted when he
denied any question tending to impeach his
impartiality. This is because the previous
statement is furnished by the tape recorded
conversation. The tape itself becomes the
primary and direct evidence of what has been
said and recorded.
Tape recorded conversation is admissible
provided first the conversation is relevant to
the matters in issue; secondly, there is
identification of the voice: and, thirdly, the
accuracy of the tape recorded conversation is
proved by eliminating the possibility of
erasing the tape record. A contemporaneous
tape record of a relevant conversation is a
relevant fact and is admissible Under Section
8 of the Evidence Act. It is res gestate. It is
also comparable to a photograph of a relevant
incident. The tape recorded conversation is
therefore a relevant fact and is admissible
under Section 7 of the Evidence Act. The
conversation between Dr. Motwani and the
appellant in the present case is relevant to
the matter in issue. There is no dispute about
the identification of the voices. There is no
controversy about any portion of the
conversation being erased or mutilated. The
appellant was given full opportunity to test
the genuineness of the tape recorded
conversation. The tape recorded conversation
is admissible in evidence.
It was said by counsel for the appellant that
the tape recorded conversation was obtained
by illegal means. The illegality was said to be
contravention of Section 25 of the Indian
Telegraph Act. There is no violation of
Section 25 of the Telegraph Act in the facts
and circumstances of the present case. There
is warrant for proposition that even if
evidence is illegally obtained it is admissible.
Over a century ago it was said in an English
case where a constable searched the
appellant illegally and found a quantity of
offending article in his pocket that it would
be a dangerous obstacle to the administration
of justice if it were held, because evidence
was obtained by illegal means, it could not be
used against a party charged with an offence.
See Jones v. Owen, [1870] 34 JP 759. The
Judicial Committee in Kuruma, Son of Kanju
v. R., 1955 AC 197 dealt with the conviction
of an accused of being in unlawful possession
of ammunition which had been discovered in
consequence of a search of his person by a
police officer below the rank of those who
were permitted to make such searches. The
Judicial Committee held that the evidence
was rightly admitted. The reason given was
that if evidence was admissible it matters not
how it was obtained. There is of course
always a word of caution. It is that the Judge
has a discretion to disallow evidence in a
criminal case if the strict rules of
admissibility would operate unfairly against
the accused. That caution is the golden rule
in criminal jurisprudence.
This Court in Magraj Patodia v. R. K. Birla,
AIR 1971 SC 1295 dealt with the
admissibility in evidence of two files
containing numerous documents produced on
behalf of the election petitioner. Those files
contained correspondence relating to the
election of respondent No. 1. The
correspondence was between respondent No.
1 the elected candidate and various other
persons. The witness who produced the file
said that respondent No. 1 handed over the
file to him for safe custody. The candidate
had apprehended raid at his residence in
connection with the evasion of taxes or
duties. The version of the witness as to how
he came to know about the file was not
believed by this Court. This Court said that a
document which was procured by improper or
even by illegal means could not bar its
admissibility provided its relevance and
genuineness were proved.
In Nagree's case the appellant offered bribe to
Sheikh a Municipal Clerk. Sheikh informed
the Police. The Police laid a trap. Sheikh
called Nagree at the residence. The Police
kept a tape recorder concealed in another
room. The tape was kept in the custody of the
police inspector. Sheikh gave evidence of the
talk. The tape record corroborated his
testimony. Just as a photograph taken
without the knowledge of the person
photographed can become relevant and
admissible so does a tape record of a
conversation unnoticed by the talkers. The
Court will take care in two directions in
admitting such evidence. First, the Court will
find out that it is genuine and free from
tampering or mutilation. Secondly, the Court
may also secures scrupulous conduct and
behavior on behalf of the Police. The reason
is that the Police Officer is more likely to
behave properly if improperly obtained
evidence is liable to be viewed with care and
caution by the Judge. In every case the
position of the accused, the nature of the
investigation and the gravity of the offence
must be judged in the light of the material
facts and the surrounding circumstances.
The admissibility of evidence procured in
consequence of illegal searches and other
unlawful acts was applied in a recent English
decision in R. v. Maqsud Ali, (1965) 2 AII.
E.R. 464. In that case two persons suspected
of murder went voluntarily with the Police
Officers to a room in which, unknown to
them, there was a microphone connected with
a tape-recorder in another room. They were
left alone in the room. They proceeded to have
a conversation in which incriminating
remarks were made. The conversation was
recorded on the tape. The Court of Criminal
Appeal held that the trial Judge had correctly
admitted the tape-recording of the
incriminating conversation in evidence. It
was said “that the method of the informer
and of the eavesdropper is commonly used in
the detection of crime. The only difference
here was that a mechanical device was the
eavesdropper”. The Courts often say that
detection by deception is a form of police
procedure to be directed and used sparingly
and with circumspection.
When a Court permits a tape recording to be
played over it is acting on real evidence if it
treats the intonation of the words to be
relevant and genuine. The fact that tape
recorded conversation can be altered is also
borne in mind by the Court while admitting
it in evidence.
In the present-case the recording of the
conversation between Dr. Motwani and the
appellant cannot be said to be illegal because
Dr. Motwani allowed the tape recording
instrument to be attached to his instrument.
In fact, Dr. Motwani permitted the Police
Officers to hear the conversation. If the
conversation were relayed on a microphone or
an amplifier from the telephone and the
police officers heard the same they would be
able to give direct evidence of what they
heard. Here the police officers gave direct
evidence of what they saw and what they did
and what they recorded as a result of
voluntary permission granted by Dr.
Motwani. The tape recorded conversation is
contemporaneous relevant evidence and
therefore it is admissible. It is not tainted by
coercion or unfairness. There is no reason to
exclude this evidence.
It was said that the admissibility of the tape
recorded evidence offended Articles 20(3) and
21 of the Constitution. The submission was
that the manner of acquiring the tape
recorded conversation was not procedure
established by law and the appellant was
incriminated. The appellant’s conversation
was voluntary. There was no compulsion. The
attaching of the tape recording instrument
was unknown to the appellant. That fact does
not render the evidence of conversation
inadmissible. The appellant’s conversation
was not extracted under duress or
compulsion. If the conversation was recorded
on the tape it was a mechanical contrivance
to play the role of an eavesdropper. In R. v.
Leatham, (1961) 8 Cox CC 498 it was said “it
matters not how you get it if you steal it even,
it would be admissible in evidence”. As long
as it is not tainted by an inadmissible
confession of guilt evidence even if it is
illegally obtained is admissible.
There is no scope for holding that the
appellant was made to incriminate himself.
At the time of the conversation there was no
case against the appellant. He was not
compelled to speak or confess. Article 21 was
invoked by submitting that the privacy of the
appellant’s conversation was invaded. Article
21 contemplates procedure established by
law with regard to deprivation of life or
personal liberty. The telephonic conversation
of an innocent citizen will be protected by
Courts against wrongful or high handed
interference by tapping the conversation. The
protection is not for the guilty citizen against
the efforts of the police to vindicate the law
and prevent corruption of public servants. It
must not be understood that the Courts will
tolerate safeguards for the protection of the
citizen to be imperiled by permitting the
police to proceed by unlawful or irregular
methods. In the present case there is no
unlawful or irregular method in obtaining the
tape recording of the conversation. …
For these reasons, the appeal is dismissed.
The appellant will surrender to his bail and
serve out the sentence.
NOTES, COMMENTS & DISCUSSION

1. This appeal had four issues that were contested before the Supreme Court. The three that
have been left out were as follows. It was argued before the Court that the conversation between
Dr. Motwani and the appellant was hit by section 162 of the Code of Criminal Procedure (CrPC)
and was therefore not admissible. This objection was summarily rejected by the Court. The
interplay between section 162 of CrPC and the provisions of the Indian Evidence Act is discussed
elsewhere in this book. It was also argued that the appellant never attempted to obtain any illegal
gratification – this was also summarily rejected. And lastly there was an appeal for regarding
sentencing which is not relevant for our discussion.

2. It is extremely worthwhile to closely study the two primary arguments made in this case in
order attack the admissibility of the tape recorded conversation between Dr. Motwani and the
appellant. To better understand this, we can break down the argument in the following way –

i. The Illegality Argument. This argument was based on the Indian Telegraph Act and the Indian
Telegraph Rules. There were two parts to this argument. Firstly, it was argued that the police had,
by attaching the recording devices to Dr. Motwani’s telephone had violated section 25 of the
Indian Telegraph Act and had obtained the evidence (i.e. the telephonic conversation) by illegal
means. An illegally obtained evidence cannot be held admissible. Secondly, as per the Indian
Telegraph Rules, only the Telegraph Autorities had the legal authority to intercept telephone
messages and not the police officers. Thus the evidence was obtained by the police by going
beyond what the law authorized them to do and therefore the evidence was inadmissible.

ii. The Constitutional Argument. This argument, expectedly, was based on articles 20(3) and 21
of the Constitution. Considering the importance of these constitutional arguments, it is surprising
to see that there were disposed off in a couple of paragraphs. But that is probably because the
illegality objection was overruled which mean that the evidence was legally obtained, there was
nothing much a constitutional argument could have done to prevent the admissibility of the tape-
recorded telephone conversation.

3. Relevancy, Admissibility and Weightage assigned to evidence. The fundamental

principle of admissibility of evidence in India can be simply described as follows – subject to any
legal or constitutional prohibitions, all relevant evidence is admissible. This is not a statutory
principle, but is a principle derived from the reported cases on the point. Admissibility of evidence
can be questioned on the grounds that the evidence is not relevant. ‘Relevant’ is defined in section
3 of the Indian Evidence Act (IEA) as follows – ‘One fact is said to be relevant to another when
the one is connected with the other in any of the way referred to in the provisions of this Act
relating to the relevancy of facts’. Chapter II of the IEA, titled ‘Of the Relevancy of Facts’ codifies
all those ways that this definition is referring to. Thus if irrelevancy of a fact can be demonstrated
using any of the provisions mentioned in Chapter II the same will be inadmissible. We will visit
important provisions of Chapter II later in this book.

At common law, the rule of admissibility of evidence is the same. In Cross and Tapper on Evidence
(11th Edn.), the rule of admissibility at common law is noted in the following words (p. 69, internal
footnotes omitted) –
The main general rule governing the entire subject is that all evidence that is sufficiently relevant to an issue
before the court is admissible and all that is irrelevant, or insufficiently relevant, should be excluded. …
The first and most important rule of the law of evidence, though one that is not always perceived or
observed, is that evidence is only admissible if it is indeed relevant to an issue between the parties.

The position at common law is even more succinctly stated in Phipson (11th Edn., ¶ 7-05, internal
citations omitted) –

Relevancy must be distinguished from admissibility, of which, thought the primary, it is by no means the sole
condition. Evidence may be relevant and yet, on grounds of convenience or policy, inadmissible. Indeed,
this exclusion of matter otherwise relevant has been called the distinguishing feature of the English law of
evidence. It is correct the, in deciding whether evidence is admissible, to ask first whether the
evidence is relevant and, thereafter, whether there are any rules or discretions, based on
convenience or policy, which nonetheless make this relevant evidence inadmissible.
(Emphasis Added)

It is hard to find or better the exposition of law on this point than the emphasised portion from
the above note extract from Phipson. As to the definition of ‘relevance’, Cross and Tapper approve
of the definition by another authority Stephen, which is as follows –

any two facts to which it is applied are so related to each other that according to the common course of
events one either taken by itself or in connection with other facts proves or renders probable the past,
present, or future existence or non-existence of the other.

Most of the law of evidence that deals with admissibility of evidence has evolved as exceptions to
the rule of relevancy. While admitting evidence in a judicial proceeding, many times evidence that
might be admitted elsewhere as relevant will be rejected as inadmissible. Phipson (¶ 7-07) notes
that, “This evidence is often rejected on grounds of convenience or policy, e.g. as being too
remotely connected, or too slight in probative force, to form the basis of judicial decisions; or as
tending to confuse to jury by raising too many side-issues; or as creating unfair prejudice, but the
conclusion is often expressed as turning on relevance.” For example evidence establishing the
motive, preparation and previous or subsequent conduct of any party to a litigation is relevant
evidence as per section 8 of the IEA. In a prosecution where the fact in issue is whether the
accused murdered the victim by gun-shot, it is relevant evidence that two days before the act was
committed the accused purchased a gun. But is also equally relevant that the accused’s life was
threatened by the victim so he purchased the gun fearing for his life and not as a plan to commit
murder. It is extremely useful, therefore, not to confuse principles whereby admissibility of
evidence is determined (primarily guided by the rule of relevancy) and principles whereby weight
is assigned to admitted evidence. A similar caution appears in Phipson (¶ 7-07), “Thus, it is
suggested that concerns about convenience and policy are better thought of as factors to be
considered in deciding admissibility and not relevance.” In other words, to continue the hypothetical
taken above, just because the mother of the accused being related to the accused is probably going
to give evidence in favour of her son, cannot be a ground to disqualify the mother from giving
evidence at the trial provided her evidence is relevant to the case. The judge may later chose to
disbelieve her evidence or assign very little weight to it, but that is a function of reading all the
admitted evidence together and not a function of rules of admissibility of evidence. This crucial
distinction, though certainly not (to use an American expression) cut-and-dried, has been noted
by Cross and Tapper (11th Edn.) as well in the following words (p. 79, internal footnotes omitted) –
Questions concerning the admissibility of evidence must be distinguished from those relating to its weight.
The former is a matter of law for the judge (although it may sometimes depend upon a preliminary finding
of fact by him); the weight of the evidence, on the other hand, is a question of fact … The weight of
evidence may affect its admissibility, as this is to some extent dependent on the degree of relevancy of the
matter under consideration. … As a practical test it has been proposed, somewhat circularly, that evidence
should be inadmissible for the defence in a criminal case on account of lack of weight only if ‘no reasonable
jury, properly directed as to its defects, could place any weight on it.

Phipson records the common law position in the following words (¶ 7– 17) –

Questions of the admissibility of evidence of evidence belong, as we have seen, to the judge; those of its
weight, credibility and sufficiency, to the jury (or, if there is no jury, to the judge). Unlike admissibility, the
weight of evidence cannot be determined by fixed rules, since it depends mainly on common sense, logic
and experience.

Admissibility of hearsay evidence by invocation of the Doctrine of Res Gestae (section 6 of the
IEA) and that of expert opinion (section 45 of the IEA) could also be explained by similar logic.
This evidence, strictly not relevant, is admissible. The idea behind this is neatly explained in a case
from New Zealand, R v. Wilson, [1991] 2 NZLR 707 in the following words –

[Lack] of relevance can be used to exclude evidence not because it has absolutely no bearing upon the
likelihood or unlikelihood of a fact in issue but because the connection is considered to be too remote.

Lastly, it would be useful to note that relevancy and admissibility should never be confused with
each other. The rule, simply speaking, is that all relevant evidence is admissible (subject to legal
and constitutional prohibitions). This rule should never be exposited as ‘all admissible evidence is
relevant’ for this would amount to an incorrect statement of the rule. The distinction as well as
the importance to keep this distinction in mind is explained in Cross and Tapper (11th Edn.) and
requires no further elucidation (p. 77, internal footnotes omitted) –

Although there are no real exceptions to this rule, the existence of important exceptions to the rule that all
sufficiently relevant evidence is admissible renders it essential to draw a sharp distinction between the
relevancy and admissibility of evidence. The former is a concept arrived at inductively from experience,
and its applicability can be tested deductively by the construction of a syllogism. It is not primarily
dependent on rules of law. The admissibility of evidence, on the other hand, depends first on the concept
of relevancy of a sufficiently high degree, and second, on the fact that the evidence tendered does not
infringe any of the exclusionary rules that may be applicable to it.

4. There are two more ways in which evidence can be regarded as inadmissible – those are legal
prohibitions falling outside Chapter II. In other words, evidence that is relevant but still
inadmissible because a principle of law, either judge made or statutory, provides so. And if there
is a constitutional prohibition on the admissibility of certain types of evidences. An example of
the first sort could be section 122 of the IEA that talks about ‘communications during marriage’
or spousal priviliege. Section 122 says – “No person who is or has been married, shall be
compelled to disclose any communication made to him during marriage by any person to whom
he is or has been married; nor shall he be permitted to disclose any such communication, unless
the person who made it, or his representative in interest, consents, except in suits between married
persons, or proceedings in which one married person is prosecuted for any crime committed
against the other.’ Another good example is section 123 that talks about ‘affairs of the State’ and
provides that no person is allowed to give evidence derived from an unpublished official record,
except with the permission of the head of the department concerned. We will revisit both these
provisions in detail later in the book.

5. The only category that remains now is this – what about evidence that has been illegally
obtained but is nevertheless relevant to a ‘fact-in-issue’ in a trial? Section 5 of the IEA says that
evidence can be given, of the existence or non-existence or every ‘fact-in-issue’ and of all other
facts declared relevant in the IEA. For example in the case under discussion, the contents of the
telephonic conversation between Dr. Motwani and the appellant are facts-in-issue. Dr. Motwani
gave evidence of what appellant said to him, appellant in turn denied those facts. Thus it becomes
important to prove what actually transpired in that conversation. For that the tape recorded
conversation was offered as evidence. And it is to the admissibility of this tape record that the
arguments noted in Note 2 above were addressed.

6. Note the rule of admissibility that we defined in Note 3. It is silent about illegally obtained
evidence. There is also no statutory prohibition against admissibility of the illegally obtained
evidence as well. And the weight of judicial opinion, as is clear from authorities citied in this case,
points its hand in only direction – there is no legal prohibition against admissibility of illegally
obtained evidence. So long as the evidence is relevant, the evidence is admissible. Is there
something peculiar about this judicially crafted rule? Examine the nature of the cases being cited
in this opinion. Is it okay for the Supreme Court, in 1973, to cling to a rule that originated in
Britain? What is the rationale that is given by the Court to hold that the tape recorded conversation
in this case was admissible?

7. The High Court had held that the evidence was obtained in violation of section 25 of the
Indian Telegraph Act but it held that the evidence was still admissible. The Supreme Court
reversed the High Court on this point by holding that the police was not ‘intercepting’ anything.
That the police had obtained the consent of Dr. Motwani to attach recording device to his
telephone. Since section 25 was therefore not violated, the evidence was not illegally obtained.
What is wrong with holding? Section 25 nowhere makes the consent of the owner of the telephone
a part of the offence it describes. Then why is Dr. Motwani’s consent so important for the Court?
What about the consent on the part of the appellant? Can the appellant not argue that he has a
reasonable expectation of privacy when he is talking to another person on his telephone? The
Supreme Court also held that since the police were not ‘intercepting’ anything, rule 149 of the
Indian Telegraph Rules is also not applicable. Is this holding correct? Did the Court discuss the
meaning of the word ‘intercept’ in the opinion?

8. The Court held that illegally obtained evidence is not admissible in all situations. The judge
may, at his discretion, and in a criminal case, disallow such evidence if admitting such evidence
would operate unfairly against the accused. What is this ‘unfair operation’ exception? Did the
Court describe this rule in anyway? Are you aware of any cases on the point where this ‘unfair
operation’ rule has been invoked to disallow admission of illegally obtained evidence?

9. Has the Court dealt with the Constitutional objections in this case satisfactorily? The primary
objection on admissibility of the tape-recorded telephone conversation was based on section 25
of the Indian Telegraph Act. The Trial Court and the High Court had found the evidence
admissible. In absence of any authority cited that would make an illegally ‘intercepted’ or recorded
telephone call inadmissible, was there any need for the Supreme Court to even go into the question
of examining the legality of act on the part of the police? It may be said that article 20(3) is not
directly applicable here because there was indeed no duress on the appellant when he was speaking
on the telephone, though unaware that his conversation is being recorded without his knowledge
or consent, there was a privacy argument that was made by invoking article 21 of the Constitution.
How has the Court dealt with this privacy argument? Do you think the Court is right in the way
it held what it held?

POORAN MAL V. DIRECTOR OF INSPECTION

AIR 1974 SC 348, (1974) 1 SCC 345
Bench – Chief Justice A. N. Ray, Justices D. G. Palekar, Y. V. Chandrachud, A. Alagiriswami and
P. N. Bhagwati

Justice Palekar (for the Court)

In these proceedings-two of them Writ
Petitions under Article 32 of the Constitution
and two others which are appeals from orders
passed by the Delhi High Court under
Article 226 relief is claimed in respect of
action taken under Section 132 of the Income-
tax, Act, 1961 (hereinafter called the Act) by
way of search and seizure of certain premises
on the ground that the authorisation for the
search as also the search and seizure were
illegal. The challenge was based on
Constitutional and non-Constitutional
grounds. For the appreciation of the
Constitutional grounds it is not necessary to
give here the detailed facts of the four cases.
It is sufficient to state that in all these cases
articles consisting of account books and
documents and in the Writ Petitions, also
cash, jewellery and other valuables, were
seized by the Income-tax authorities
purporting to act under the authorisation for
search and seizure issued under
Section 132 of the Act. Broadly speaking the
Constitutional challenge is directed against
Sub-sections (1) and (5) of Section 132 of the
Act and incidentally also against Rule 112A
on the ground that these provisions are
violative of the fundamental rights
guaranteed by
Articles 14, 19(1)(f)(g) and 31 of the
Constitution. The non-Constitutional
grounds of challenge are based up on
allegations to the effect that the search and
seizure were not in accordance with
Section 132 read with Rule 112. This
challenge will have to be considered in the
background of the facts of the individual
cases.
Chapter XIII of the Act deals with Income-tax
authorities, their powers and jurisdictions. …
Section 131 says that the authorities from the
Commissioner down to the Income-tax
Officer shall have the same powers as are
vested in a court under the CPC in respect of
several matters including the enforcing of
attendance of any person or compelling the
production of books of account and other
documents. Section 132 provides for search
and seizure. It appears that under Section
37(2) of the Income-tax Act, 1922 a limited
power of search and seizure had been first
given to the Income-tax authorities in 1966.
The present Income-tax Act initially gave
that power under Section 132 on the same
lines as the old Section 37(2). But there were
further amendments in Section 132 in 1964
and 1965. Under the amendment of 1965, two
sections namely Sections 132 and 132A were
substituted for the original Section 132. …
… [T]here was another relief claimed in the
petitions and that was for a Writ of
Prohibition restraining the Income-tax
Department from using as evidence any
information gathered from the search of the
articles seized. It would appear from the
record that the High Court was prepared to
assume for the purposes of those cases that
the search and seizure was illegal. Even so
the question remained whether these victims
of illegal search were entitled to a Writ of
Prohibition that the Income-tax authorities
shall not use any information gathered from
the documents which had been seized. The
High Court held that they were not …
Dr. Singhvi who appeared on behalf of the
appellants in the two appeals frankly
conceded that there was no specific Article of
the Constitution prohibiting the admission of
evidence obtained in an illegal search and
seizure. But he submitted that to admit such
evidence is against the spirit of the
Constitution which has made our liberties
inviolable. In this connection he referred to
some American cases which seem to
recognize the validity of his submission. As to
the argument based on “the spirit of our
Constitution”, we can do no better than quote
from the judgment of Kania, C.J. in A. K.
Gopalan v. State of Madras AIR 1950 SC 27
– privacy of a citizen’s home was specifically
There is considerable authority for the statement
that the Courts are not at liberty to declare an Act
void because in their opinion it is opposed to a
spirit supposed to pervade the Constitution but
not expressed in words. Where the fundamental
law has not limited, either in terms or by
necessary implication, the general powers
conferred upon the Legislature we cannot declare
a limitation under the notion of having discovered
something in the spirit of the Constitution which
is not even mentioned in the instrument. It is
difficult upon any general principles to limit the
omnipotence of the sovereign legislative power by
judicial interposition, except so far as the express
words of a written Constitution give that
authority.
Now, if the Evidence Act 1871 which is a law
consolidating, defining and amending the law
of evidence, no provision of which is
challenged as violating the Constitution,
permits relevancy as the only test of
admissibility of evidence (See Section 5 of the
Act) and, secondly, that Act or any other
similar law in force does not exclude relevant
evidence on the ground that it was obtained
under an illegal search or seizure, it will be
wrong to invoke the supposed spirit of our
Constitution for excluding such evidence. Nor
is it open to us to strain the language of the
Constitution, because some American Judges
of the American Supreme Court have spelt
out certain Constitutional protections from
the provisions of the American Constitution.
In M.P. Sharma v. Satish Chander, already
referred to, a search and seizure made under
the Criminal Procedure Code was challenged
as illegal on the ground of violation of the
fundamental right under Article 20(3), the
argument being that the evidence was no
better than illegally compelled evidence. In
support of that contention reference was
made to the Fourth and Fifth amendments of
the American Constitution and also to some
American cases which seemed to hold that
the obtaining of incriminating evidence by
illegal seizure and search tantamounts to the
violation of the Fifth Amendment. The
Fourth amendment does not place any
embargo on reasonable searches and
seizures. It provides that the right of the
people to be secure in their persons, papers
and effects against unreasonable searches
and seizures shall not be violated. Thus the
safeguarded under the Constitution,
although reasonable searches and seizures
were not taboo. Repelling the submission,
this Court observed [that], “A power of search
and seizure is in any system of jurisprudence
is 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 a 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,
therefore, follows that neither by invoking
the spirit of our Constitution nor by a
strained construction of any of the
fundamental rights can we spell out the
exclusion of evidence obtained on an illegal
search.
So far as India is concerned its law of
evidence is modelled on the rules of evidence
which prevailed in English law, and courts in
India and in England have consistently
refused to exclude relevant evidence merely
on the ground that it is obtained by illegal
search or seizure. In Barindra Kumar Ghose
v. Emperor I.L.R. 37 Cal 467 the learned
Chief Justice Sir Lawrence Jenkins says
[that]:
Mr. Das has attacked the searches and has urged
that, even if there was jurisdiction to direct the
issue of search warrants, as I hold there was, still
the provisions of the Criminal Procedure Code
have been completely disregarded. On this
assumption he has contended that the evidence
discovered by the searches is not admissible, but
to this view I cannot accede. For without in any
way countenancing disregard of the provisions
prescribed by the Code, I hold that what would
otherwise be relevant does not become irrelevant
because it was discovered in the course of a search
in which those provisions were disregarded. As
Jimutayahana with his shrewd commonsense
observes – “a tact cannot be altered by 100 texts,”
and as his commentator quaintly remarks: “If a
Brahmana be slain, the precept ‘slay not a
Brahmana’ does not annul the murder.” But the
absence of the precautions designed by the
legislature lends support to the argument that the
alleged discovery should be carefully scrutinized.
In Emperor v. Allahbad Khan 35 Allahabad,
358 the Superintendent of Police and a Sub-
Inspector searched the house of a person
suspected of being in illicit possession of
excisable articles and such articles were
found in the house searched. It was held that
the conviction of the owner of the house under
Section 63 of the United Provinces Excise
Act, 1910 was not rendered invalid by the fact
that no warrant had been issued for the
search, although it was presumably the
intention of the legislature that in a case
under Section 63, where it was necessary to
search a house, a search warrant should be
obtained beforehand. In Kuruma v. The
Queen [1955] A.C. 197 where the Privy
Council had to consider the English Law of
Evidence in its application to Eastern Africa,
their Lordships propounded the rule thus:
The test to be applied, both in civil and in criminal
cases, in considering whether evidence is
admissible is whether it is relevant to the matters
in issue. If it is, it is admissible and the court is
not concerned with how it was obtained.
Some American cases were also cited before
the Privy Council. Their Lordships observed
at p. 204 thus:
Certain decisions of the Supreme Court of the
United States of America were also cited in
argument. Their Lordships do not think it
necessary to examine them in detail. Suffice it to
say that there appears to be considerable
difference of opinion among the judges both in the
State and Federal courts as to whether or not the
rejection of evidence obtained by illegal means
depends on certain articles in the American
Constitution. At any rate, in Olmstead v. United
State (1828) 277 U.S. 438, the majority of the
Supreme Court were clearly of opinion that the
common law did not reject relevant evidence on
that ground.
In Kuruma, Kuruma was searched by two
Police Officers who were not authorised
under the law to carry out a search and, in
the search, some ammunition was found in
the unlawful possession of Kuruma. The
question was whether the evidence with
regard to the finding of the ammunition on
the person of Kuruma could be shut out on
the ground that the evidence had been
obtained by an unlawful search. It was held
it could not be so shut out because the finding
of ammunition was a relevant piece of
evidence on a charge for unlawful possession.
In a later case before the Privy Council in
Herman King v. The Queen [1969] (1) A.C.
304 which came on appeal from a Court of
Appeal of Jamaica, the law as laid down in
Kuruma’s case was applied although the
Jamaican Constitution guaranteed the
Constitutional right against search and
seizure in the following provision of the
Jamaica (Constitution) Order in Council
1962, Schedule 2, Section 19 “(1) Except with
his own consent, no person shall be subjected
to the search of his person or his property or
the entry by others on his premises. (2)
Nothing contained in or done under the
authority of any law shall be held to be
inconsistent with or in contravention of this
section to the extent that the law in question
makes provision which is reasonably
required … for the purpose of preventing or
detecting crime …”
In other words, search and seizure for the
purposes of preventing or detecting crime
reasonably enforced was not inconsistent
with the Constitutional guarantee against
search and seizure. It was held in that case
that the search of the appellant by a Police
Officer was not justified by the warrant nor
was it open to the Officer to search the person
of the appellant without taking him before a
Justice of the Peace. Nevertheless it was held
that the Court had a discretion to admit the
evidence obtained as a result of the illegal
search and the Constitutional protection
against search of person or property without
consent did not take away the discretion of
the court. Following Kuruma the court held
that it was open to the court not to admit the
evidence against the accused if the court was
of the view that the evidence had been
obtained by conduct of which the prosecution
ought not to take advantage. But that was
not a rule of evidence but a rule of prudence
and fair play. It would thus be seen that in
India, as in England, where the test of
admissibility of evidence lies in relevancy,
unless there is an express or necessarily
implied prohibition in the Constitution or
other law evidence obtained as a result of
illegal search or seizure is not liable to be
shut out.
In that view, even assuming, as was done by
the High Court, that the search and seizure
were in contravention of the provisions of
Section 132 of the Income Tax Act, still the
material seized was liable to be used subject
to law before the Income-tax authorities
against the person from whose custody it was
seized and, therefore, no Writ of Prohibition
in restraint of such use could be granted. It
must be therefore, held that the High Court
was right in dismissing the two Writ
Petitions. The appeals must also fail and are
dismissed with costs.

NOTES, COMMENTS & DISCUSSION

1. This cases raises the same question as the previous case, except this one is a unanimous 5 judge
Constitution Bench opinion, which gives this case a very strong doctrinal weight. Notwithstanding
the fact that a provision of the Income Tax Act was under question, the essential question remains
the same – can illegally obtained relevant evidence be admitted into evidence? And the unanimous
5 judge bench held on the same lines as was held in Malkani thus giving additional weight to this
doctrine of law. The constitutional arguments in this case were made attacking virtually everything
– that the legal provision providing for authorization of a search as well as the search itself is
unconstitutional. Articles 14, 19(1)(f), 19(1)(g) and 31 were invoked and the constitutional
challenges on all these grounds failed. Those parts of the opinion have been omitted.

2. A strong plea was made in this case to read into the relevant constitutional provisions the US
Supreme Court jurisprudence on 4th and 5th Amendment and the plea was rejected. Why this plea
was rejected makes for a good study in comparative constitutional law but such an exercise is
beyond our purpose in this book. But there is an element of law of evidence involved in all these
please to which will be directing our attention.

3. As far as holding of the case is concerned the point is very clear. In Note 2 for Malkani we
have put the principle succinctly – subject to legal and constitutional prohibitions, all relevant
evidence is admissible. In this case the five judge bench grants our principle its stamp of approval
when it held – “…where the test of admissibility of evidence lies in relevancy, unless there is an
express or necessarily implied prohibition in the Constitution or other law evidence obtained as a
result of illegal search or seizure is not liable to be shut out.” This is nothing but a clear restatement
of a principle that we deduced from the previous case. But there are a few things to be noted.
First the Court uses the phrase ‘express or necessarily implied prohibition’ and second the phrase
‘in the Constitution or other law’. On the basis of this, it stands to reason, that if a necessarily
implied limitation can be found in a law or in the Constitution itself, the admission of illegally
obtained relevant evidence can be successfully resisted.

4. Another important point to note in this case is that the rule of admissibility based on relevancy
alone was not challenged by the petitioner. This point has not received much attention in
subsequent cases as well as academic literature on the point. Do you think that the rule of
‘relevancy as the only test of admissibility’ can be challenged as unconstitutional? Is there any
support from judicial authority that might make such a challenge viable?

5. Also note the Court’s summary rejection of US jurisprudence on the point but it is very
comfortable accepting the British position. The Court reasons that the US cases have been decided
in light of the text of the US Constitution but cannot be followed in the India because textual
differences between the test of both Constitutions. But since the Indian Evidence Act is modelled
on British law of evidence, and in Britain there is no restriction on admissibility of illegally obtained
evidence, the Court holds, such should be the case in India. Do you find the line of logic
acceptable? What would your position on this point be?

6. Finally, note the ‘careful scrutiny’ caveat that the Court has mentioned in this case. Refer to
Note 8 for Malkani where we noticed the ‘unfair operation’ exception – a rule that leaves it to the
judge’s discretion to disallow admission of illegally obtained evidence if it causes an unfair
operation against the accused. The ‘careful scrutiny’ rule, cited from an old British case, is
essentially saying this same thing. This rule has been mentioned twice in the opinion, but not
without much elaboration. The questions that we asked in Note 8 for Malkani still remain – are
there any cases where this unfair operation exception has been successfully invoked? Are there
any cases where this exception has at all been invoked? What kind of circumstances are covered
by this exception anyway?

STATE OF PUNJAB V. BALDEV SINGH

AIR 1999 SC 2378, (1999) 6 SCC 172
Bench – Chief Justice Dr. A. S. Anand, Justices S. B. Majmudar, Sujata V. Manohar, K.
Venkataswami and V. N. Khare

Chief Justice Anand (for the Court)

[Part I] NDPS Act. In the cases of State of Punjab v.

On 15.7.1997 when this batch of
appeals/special leave petitions was placed
before a two-Judge Bench, it was noticed that
there was divergence of opinion between
different Benches of this Court with regard to
the ambit and scope of Section 50 of Narcotic
Drugs and Psychotropic Substances Act,
1985 (hereinafter 'NDPS Act') and in
particular with regard to the admissibility of
the evidence collected by an investigating
officer during search and seizure conducted
in violation of the provisions of Section 50 of
Balbir Singh (1994) 3 SCC 299, Ali Mustaffa
Abdul Rahman Moosa v. State of Kerala
(1994) 6 SCC 569, Saiyad Mohd. Saiyad
Umar Saiyad v. State of Gujarat (1995) 3
SCC 610 and a number of other cases, it was
laid down that failure to observe the
safeguards, while conducting search and
seizure, as provided by Section 50 would
render the conviction and sentence of an
accused illegal. In Ali Mustaffa the judgment
in Pooran Mal v. Director of Inspection
(Investigation), New Delhi (1974) 1 SCC 345,
was also considered and it was opined that
the judgment in Pooran Mal could not be
interpreted to have laid down that a
contraband seized as a result of illegal search
or seizure could by itself be treated as
evidence of possession of the contraband to
fasten liability, arising out of unlawful
possession of the contraband, on the person
from whom the alleged contraband had been
seized during an illegal search conducted in
violation of the provisions of Section 50 of
NDPS Act.
However, in State of Himachal Pradesh v.
Pirthi Chand (1996) 2 SCC 37 and State of
Punjab v. Labh Singh (1996) 5 SCC 520
relying upon a judgment of this Court in
Pooran Mal a discordant note was stuck and
it was held that evidence collected in a search
conducted in violation of Section 50 of NDPS
Act did not become inadmissible in evidence
under the Evidence Act. …
[Part II]
With a view to … resolve the divergence of
opinion expressed by different benches
particularly on the applicability of the law
laid down in Pooran Mal to the admissibility
of evidence collected as a result of search
conducted in violation of the provisions of
Section 50 of the NDPS Act, to offences under
the NDPS Act, it would be appropriate to first
notice some of the relevant statutory
provisions. …
… 35. Presumption of culpable mental state. – (1)
In any prosecution for an offence under this Act
which requires a culpable mental state of the
accused, the court shall presume the existence of
such mental state but it shall be a defence for the
accused to prove the fact that he had no such
mental state with respect to the act charged as an
offence in that prosecution.
Explanation – In this section ‘culpable mental
state’includes intention, motive, knowledge of a
fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to
be proved only when the court believes it to exist
beyond a reasonable doubt and not merely when
its existence is established by a preponderance of
probability.
… 50. Conditions under which search of persons
shall be conducted. – (1) When any officer duly
authorised under Section 42 is about to search any
person under the provisions of Section 41, Section
42 or Section 43, he shall, if such person so
requires, take such person without unnecessary
delay to the nearest Gazetted officer of any of the
departments mentioned in Section 42 or to the
nearest Magistrate.
(2) If such requisition is made, the officer may
detain the person until he can bring him before the
Gazetted Officer or the Magistrate referred to in
Sub-section (1).
(3) The Gazetted Officer or the Magistrate before
whom any such person is brought shall, if he sees
no reasonable ground for search, forthwith
discharge the person but otherwise shall direct
that search be made.
(4) No female shall be searched by anyone
excepting a female.
… 51. Provisions of the CrPC 1973 to apply to
warrants, arrest, searches and seizures. – The
provisions of the CrPC, 1973 shall apply, in so far
as they are not inconsistent with the provisions of
this Act, to all warrants issued and arrests,
searches and seizures made under this Act.
… 52. Disposal of persons arrested and articles
seized. - (1) Any officer arresting a person under
Section 41, Section 42, Section 43 or Section 44
shall, as soon as may be, inform him of the grounds
for such arrest.
(2) Every person arrested and article seized under
warrant issued under Sub-section (1) of Section 41
shall be forwarded without unnecessary delay to
the Magistrate by whom the warrant was issued.
(3) Every person arrested and article seized under
Sub-section (2) of Section 41, Section 42, Section
43 or Section 44 shall be forwarded without
unnecessary delay to -
(a) the officer-in-charge of the nearest police
station, or
(b) the officer empowered under Section 53.
(4) The authority or officer to whom any person or
article is forwarded under Sub-section (2) or Sub-
section (3) shall, with all convenient dispatch, take
such measures as may be necessary for the
disposal according to law of such person or article.
… 54. Presumption from possession of illicit
articles. – In trials under this Act, it may be
presumed, unless and until the contrary is proved,
that the accused has committed an offence under
Chapter IV in respect of –
(a) any narcotic drug or psychotropic substance;
(b) any opium poppy, cannabis plant or coca plant
growing or any land which he has cultivated;
(c) any apparatus specially designed or any group
of utensils specially adopted for the manufacture
of any narcotic drug or psychotropic substance; or
(d) any materials which have undergone any
process towards the manufacture of a narcotic
drug or psychotropic substance, or any residue left
of the materials from which any narcotic drug or
psychotropic substance has been manufacture.
for the possession of which he fails to account
satisfactorily.
… Section 132(13) of the Income Tax Act,
1961 provides:
132. Search and seizure. – (1) to (12) * * *
(13) The provisions of the CrPC, 1973 (2 of 1974),
relating to searches and seizure shall apply, so far
a s may be, to searches and seizure under Sub-
section (1) or Sub-section (1A).
[Part III]
Search and seizure are essential steps in the
armoury of an investigator in the
investigation of a criminal case. The CrPC
itself recognises the necessity and usefulness
of search and seizure during the
investigation as is evident from the
provisions of Sections 96 to 103 and Section
165 of the Criminal Procedure Code. In M.P.
Sharma v. Satish Chandra, District
Magistrate, Delhi AIR 1954 SC 300, the
challenge to the power of issuing a search
warrant under Section 96(1) CrPC as
violative of the fundamental rights was
repelled by the Constitution Bench on the
ground that the power of search and seizure
in any system of jurisprudence is an
overriding power of the State for the
protection of social security. It was also held
that a search by itself is not a restriction on
the right to hold and enjoy property, though
a seizure may be a restriction on the right of
possession and enjoyment of the seized
property, but it is only temporary and for the
limited purpose of an investigation. …
… Section 50 of the Act prescribes the
conditions under which search of a person
shall be conducted. Sub-section (1) provides
that when the empowered officer is about to
search any suspected person, he shall, if the
person to be searched so requires, take him to
the nearest Gazetted Officer or the
magistrate for the purpose. Under Sub-
section (2) it is laid down that if such request
is made by the suspected person, the officer
who is to take the search, may detain the
suspect until he can be brought before such
Gazetted Officer or the Magistrate. Sub-
section (3) lays down that when the person to
be searched is brought before such a Gazetted
Officer or the Magistrate and such Gazetted
Officer or the Magistrate finds that there are
no reasonable grounds for search, he shall
forthwith discharge the person to be
searched, otherwise he shall direct that the
search be made.
On its plain reading, Section 50 would come
into play only in the case of a search of a
person as distinguished from search of any
premises etc. However, if the empowered
officer, without any prior information as
contemplated by Section 42 of the Act makes
a search or causes arrest of person during the
normal course of investigation into an offence
or suspected offence and on completion of
that search, a contraband under the NDPS
Act is also recovered, the requirements of
Section 50 of the Act are not attracted.
Vide Section 51, the provisions of the CrPC,
1973, shall apply, insofar as they are not
inconsistent with the provisions of the NDPS
Act, to all warrants issued and arrests,
searches and seizures made under the NDPS
Act. Thus, the NDPS Act, 1985 after
incorporating the board principles regarding
search, seizure and arrest etc. in Sections 41,
42, 43, 49 and 50 has laid down in Section 51
that the provisions of the CrPC shall apply
insofar as they are not inconsistent with the
provisions of the NDPS Act. The expression
“insofar as they are not inconsistent with the
provisions of this Act” occurring in Section 51
of the NDPS Act is of significance. This
expression implies that the provisions of the
CrPC relating to search, seizure or arrest
apply to search, seizure and arrest under
NDPS Act also except to the extent they are
“inconsistent with the provisions of the Act”.
Thus, while conducting search and seizure, in
addition to the safeguards provided under the
CrPC, the safeguards provided, under the
NDPS Act are also required to be followed.
Section 50(4) of the NDPS Act lays down that
no female shall be searched by anyone
excepting a female. This provision is similar
to the one contained in Section 52 of the
CrPC, 1898 and Section 51(2) of the CrPC,
1973 relating to search of females. Section
51(2) of the CrPC, 1973 lays down that
whenever it is necessary to cause a female to
be searched, the search shall be made by
another female with strict regard to decency.
The empowered officer must, therefore, act in
the manner provided by Section 50(4) of the
NDPS Act read with Section 51(2) of the
CrPC, 1973 whenever it is found necessary to
cause a female to be searched. The document
prepared by the Investigating Officer at the
spot must invariably disclose that the search
was conducted in the aforesaid manner and
the name of the female official who carried
out the personal search of the concerned
female should also be disclosed. The personal
search memo of the female concerned should
indicate compliance with the aforesaid
provisions. Failure to do so may not only
affect the credibility of the prosecution case
but may also be found as violative of the basic
right of a female to be treated with decency
and proper dignity.
The provisions of Sections 100 and 165
Cr.P.C. are not inconsistent with the
provisions of the NDPS Act and are
applicable for affecting search, seizure or
arrest under the NDPS Act also. However,
when an empowered officer carrying on the
investigation including search, seizure or
arrest under the provisions of the CrPC,
comes across a person bring in possession of
the narcotic drugs or the psychotropic
substance, then he must follow from that
stage onwards the provisions of the NDPS
Act and continue the investigation as
provided thereunder. If the investigating
officer is not an empowered officer then it is
expected of him that he must inform the
empowered officer under the NDPS Act, who
should thereafter proceed from that stage in
accordance with the provisions of the NDPS
Act. In Balbir Singh's case after referring to
a number of judgments, the Bench opined
that failure to comply with the provisions of
Cr.P.C. in respect of search and seizure and
particularly those of Sections 100, 102, 103
and 165 per se does not vitiate the
prosecution case. If there is such a violation,
what the courts have to see is whether any
prejudice was caused to the accused. While
appreciating the evidence and other relevant
factors, the courts should bear in mind that
there was such a violation and evaluate the
evidence on record keeping that in view.
[Part IV]
What is the import of the expression “if such
person so requires” he shall be taken to the
nearest Gazetted officer or Magistrate and
his search shall be made before such Officer
or Magistrate as occurring in Section 50.
Does the expression not visualise that to
enable the concerned person to require his
search to be conducted before a Gazetted
Officer or a Magistrate, the empowered
officer is under an obligation to inform him
that he has such a right? Learned counsel
appearing for the State of Punjab as also the
learned counsel appearing for the State of
Gujarat argued that it would not be proper to
read into the provisions of Section 50, any
legislative intent of prescribing a duty on the
part of the empowered Officer to inform the
suspect that if he so requires, the search
would be conducted before a Gazetted Officer
or a Magistrate, as the case may be.
According to the learned counsel, the view
expressed in State of Punjab v. Balbir Singh,
laying down that it is obligatory on the part
of such an officer to so inform the person to
be searched or if such person requires, failure
to take him for search before the Gazetted
Officer or the Magistrate, would amount to
non-compliance with the provisions of
Section 50 and would affect the prosecution
case and vitiate the trial requires
reconsideration. As a matter of fact, the order
of the referring bench itself, centers around
whether there is any requirement of Section
50, making, it obligatory for the empowered
officer, who is about to search a person, to
inform him of his right of being taken to the
nearest Gazetted Officer or nearest
Magistrate for making the search if he so
requires. Learned counsel for the parties,
however, agree that in case the obligation to
inform the suspect of his right to be searched
before a Gazetted Officer or a Magistrate is
read as a duty cast on the empowered officer;
then failure to give information regarding
that right to the suspect would be a serious
infirmity amounting to denial of a valuable
right to an accused and would render his
conviction for an offence under the NDPS Act
bad and unsustainable.
The question as to what is the effect of non-
compliance with the provisions of Section 50
on the recovery of the contraband was
answered in State of Punjab v. Balbir Singh.
The common question which arose for
consideration in a batch of appeals filed by
the State of Punjab was “whether any arrest
or search of a person or search of a place
conducted without conforming to the
provisions of the NDPS Act would be
rendered illegal and consequently vitiate the
conviction?”
The Trial Court in those cases had acquitted
the accused on the ground that the arrest,
search and seizure were conducted in
violation of some of the “relevant and
mandatory” provisions of the NDPS Act. The
High Court declined to grant appeal against
the order of acquittal. The State of Punjab
thereupon filed appeals by special leave in
this Court. In some other cases, where the
accused had been convicted, they also filed
appeals by special leave questioning their
conviction and sentence on the ground that
their trials were illegal because of non-
compliance with the safeguard provided
under Section 50 of the NDPS Act. A two-
Judge Bench speaking through K.
Jayachandra Reddy, J. considered several
provisions of the NDPS Act governing arrest,
search and seizure and, in particular, the
provisions of Sections 41, 42, 43, 44, 49, 50,
51, 52 and 57 of the NDPS Act as well as the
provisions of the CrPC relating to search and
seizure effected during investigation of a
criminal case. Dealing with Section 50, it was
held that in the context in which the right
had been conferred, it must naturally be
presumed that it is imperative on the part of
the officer to inform the person to be searched
of his right that if he so requires he shall be
searched before a Gazetted Officer or
Magistrate and on such request being made
by him, to be taken before the Gazetted
Officer or Magistrate for further proceedings.
The reasoning given in Balbir Singh’s case
was that to afford an opportunity to the
person to be searched “if he so requires to be
searched before a Gazetted Officer or a
Magistrate” he must be made aware of that
right and that could be done only by the
empowered officer by informing him of the
existence of that right. The Court went on to
hold that failure to inform the person to be
searched of that right and if he so requires,
failure to take him to the Gazetted Officer or
the Magistrate, would mean non-compliance
with the provisions of Section 50 which in
turn would “affect the prosecution case and
vitiate the Trial.” …
A three-Judge Bench in Saiyad Mohd.
Saiyad Umar Saiyad v. State of Gujarat
upheld the view taken in Balbir Singh on the
point of duty of the empowered officer to
inform the suspect about his right to be
searched before a Gazetted Officer or a
Magistrate. It considered the provisions of
Section 50 and opined:
We are unable to share the High Court’s view that
in cases under the NDPS Act it is the duty of the
court to raise a presumption, when the officer
concerned has not deposed that he had followed
the procedure mandated by Section 50, that he had
in fact done so. When the officer concerned has not
deposed that he had followed the procedure
mandated by Section 50, the court is duty-bound
to conclude that the accused had not had the
benefit of the protection that Section 50 affords;
that, therefore, his possession of articles which are
illicit under the NDPS Act is not established; that
the prosecution for his having satisfactorily
accounted for such possession has not been met,
and to acquit the accused.
In Pirthi Chand the Bench agreed with the
view in Balbir Singh case regarding to duty
to inform the suspect of his right as
emanating from Section 50 of the NDPS Act.
The Court opined:
Compliance of the safeguards in Section 50 is
mandatory obliging the officer concerned to inform
the person to be searched of his right to demand
that search could be conducted in the presence of
a Gazetted Officer or a Magistrate. The possession
of illicit articles has to be satisfactorily established
before the court. The officer who conducts search
must state in his evidence that he had informed
the accused of his right to demand, while he is
searched, in the presence of a Gazetted Officer or
a Magistrate and that the accused had not chosen
to so demand. If no evidence to that effect is given,
the court must presume that the person searched
was not informed of the protection the law gives
him and must find that possession of illicit articles acquittal and consequently the appeal was
was not established. The presumption under allowed and the order of conviction and
[section] 114 Illustration (e) of the Evidence Act, sentence against the accused was set aside.
that the official duty was properly performed,
therefore, does not apply.
It would thus, be seen that none of the
decisions of the Supreme Court after Balbir
In Labh singh again it was reiterated that the
Singh case have departed from that opinion.
accused has been provided with a protection
At least none has been brought to our notice.
of being informed of his right to be searched
There is, thus, unanimity of judicial
in presence of a Gazetted Officer or a
pronouncements to the effect that it is an
Magistrate and failure to give an opportunity
obligation of the empowered officer and his
to the concerned person to avail of the
duty before conducting the search of the
protection would render the prosecution case
person of a suspect, on the basis of prior
unsustainable. …
information, to inform the suspect that he
has the right to require his search being
In Mohinder Kumar v. State (1998) 8 SCC
conducted in the presence of a Gazetted
655 a three-Judge Bench (to which one of us,
Officer or a Magistrate and that the failure to
Sujata V. Manohar, J. was a party) once
so inform the suspect of his right, would
again considered the requirements of
render the search illegal because the suspect
Sections 42 and 50 of the Act. In that case the
would not be able to avail of the protection
police officer “accidentally” reached the house
which is inbuilt in Section 50. Similarly, if the
while on patrol duty and had it not been for
concerned person requires, on being so
the conduct of the accused persons in trying
informed by the empowered officer or
to run into the house on seeing the police
otherwise, that his search be conducted in the
party, he would perhaps not have had any
presence of a Gazetted Officer or a
occasion to enter the house and effect search.
Magistrate, the empowered officer is obliged
But when the conduct of the accused persons
to do so and failure on his part to do so would
raised a suspicion, he went into the house
also render the search illegal and the
and effected the search, seized the illicit
conviction and sentence of the accused bad.
material and caused the arrest. The Court
opined that in the facts and circumstances of
To be searched before a Gazetted Officer or a
the case, when the Investigating Officer
Magistrate, if the suspect so requires, is an
accidentally stumbled upon the offending
extremely valuable right which the
articles and himself not being the empowered
legislature has given to the concerned person
officer, then on coming to know that the
having regard to the grave consequences that
accused persons were in possession of illicit
may entail the possession of illicit articles
articles, then from that stage onwards he was
under the NDPS Act, It appears to have been
under an obligation to proceed further in the
incorporated in the Act keeping in view the
matter only in accordance with the provisions
severity of the punishment. The rationale
of the Act. On facts it was found that the
behind the provision is even otherwise
Investigating Officer did not record the
manifest. The search before a Gazetted
grounds of his belief at any stage of the
officer or a Magistrate would impart much
investigation, subsequent to his realising
more authenticity and creditworthiness to
that the accused persons were in possession
the search and seizure proceeding. It would
of charas and since he had made no record, he
also verily strengthen the prosecution case.
did not forward a copy of the grounds to his
There is, thus, no justification for the
superior officer nor did he comply with the
empowered officer, who goes to search the
provisions of Section 50 of the Act, inasmuch
person, on prior information, to effect the
as he did not inform the person to be searched
search, of not informing the concerned person
that if he required, his search could be
of the existence of his right to have his search
conducted before a Gazetted Officer or a
conducted before a Gazetted Officer or a
Magistrate, the Bench held that for failure to
Magistrate, so as to enable him to avail of
comply with the provisions of Sections 42 and
that right. It is, however, not necessary to
50, the accused was entitled to an order of
give the information to the person to be
searched about his right in writing. It is
sufficient if such information is
communicated to the concerned person orally
and as far as possible in the presence of some
independent and respectable persons
witnessing the arrest and search. The
prosecution must, however, at the trial,
establish that the empowered officer had
conveyed the information to the concerned
person of his right of being searched in the
presence of the Magistrate or a Gazetted
Officer, at the time of the intended search.
Courts have to be satisfied at the trial of the
case about due compliance with the
requirements provided in Section 50. No
presumption under Section 54 of the Act can
be raised against an accused, unless the
prosecution establishes it to the satisfaction
of the court that the requirements of Section
50 were duly complied with. …
This Court cannot over-look the context in
which the NDPS Act operates and
particularly the factor of widespread
illiteracy among persons subject to
investigation for drug offences. It must be
borne in mind that the severer the
punishment, greater has to be the care taken
to see that all the safeguards provided in a
statute are scrupulously followed. We are not
able to find any reason as to why the
empowered officer should shirk from
affording a real opportunity to the suspect, by
intimating to him that he has a right “that if
he requires” to be searched in the presence of
a Gazetted Officer or a Magistrate, he shall
be searched only in that manner. As already
observed the compliance with the procedural
safeguards contained in Section 50 are
intended to serve dual purpose – to protect a
person against false accusation and frivolous
charges as also to lend creditability to the
search and seizure conducted by the
empowered officer. The argument that
keeping in view the growing drug menace, an
insistence on compliance with all the
safeguards contained in Section 50 may
result in more acquittals does not appeal to
us. If the empowered officer fails to comply
with the requirements of Section 50 and an
order or acquittal is recorded on that ground,
the prosecution must thank itself for its
lapses. Indeed in every case the end result is
important but the means to achieve it must
remain above board. The remedy cannot be
worse than the disease itself. The legitimacy
of judicial process may come under cloud if
the court is seen to condone acts of
lawlessness conducted by the investigating
agency during search operations and may
also undermine respect for law and may have
the effect of unconscionably compromising
the administration of justice. That cannot be
permitted. …
There is indeed, a need to protect society from
criminals. The societal intent in safety will
suffer if persons who commit crimes are let
off because the evidence against them is to be
treated as if it does not exist. The answer,
therefore, is that the investigating agency
must follow the procedure as envisaged by
the statute scrupulously and the failure to do
so must be viewed by the higher authorities
seriously inviting action against the
concerned official so that the laxity on the
part of the investigating authority is curbed.
However, the question whether the
provisions of Section 50 are mandatory or
directory and if mandatory to what extent
and the consequences of non-compliance with
it does not strictly speaking arise in the
context in which the protection has been
incorporated in Section 50 for the benefit of
the person intended to be searched.
Therefore, without expressing any opinion as
to whether the provisions of Section 50 are
mandatory or not, but bearing in mind the
purpose for which the safeguard has been
made, we hold that the provisions of Section
50 of the Act implicitly make it imperative
and obligatory and cast a duty on the
Investigating Officer (empowered officer) to
ensure that search of the concerned person
(suspect) is conducted in the manner
prescribed by Section 50, by intimating to the
concerned person about the existence of his
right, that if he so requires, he shall be
searched before a Gazetted Officer or a
Magistrate and in case he so opts, failure to
conduct his search before a Gazetted Officer
or a Magistrate, would cause prejudice to an
accused and render the recovery of the illicit
article suspect and vitiate the conviction and
sentence of an accused, where the conviction
has been recorded only on the basis of the
possession of the illicit article, recovered
during a search conducted in violation of the
provisions of Section 50 of the Act. The
omission may not vitiate the trial as such, but
because of the inherent prejudice which
would be caused to an accused by the
omission to be informed of the existence of his
right, it would render his conviction and
sentence unsustainable. The protection
provided in the section to an accused to be
intimated that he has the right to have his
personal search conducted before a Gazetted
Officer or a Magistrate, if he so requires, is
sacrosanct and indefeasible – it cannot be
disregarded by the prosecution except at its
own peril.
The question whether or not the safeguards
provided in Section 50 were observed would
have, however, to be determined by the court
on the basis of the evidence led at the trial
and the finding on that issue, one way or the
other, would be relevant for recording an
order of conviction or acquittal. Without
giving an opportunity to the prosecution to
establish at the trial that the provisions of
Section 50, and particularly, the safeguards
provided in that section were complied with,
it would not be advisable to cut short a
criminal trial.
[Part V]
The next question which arises for our
consideration is whether evidence collected in
a search conducted in violation of Section 50,
is admissible in evidence? This question
arises in the context of the judgment of the
Constitution Bench in Pooran Mal. …
Let us, therefore, first examine the fact
situation and the law as laid down in Pooran
Mal and the question of its applicability to
cases arising out of offences under the NDPS
Act, based only on proof of unlawful
possession of an illicit drug or a psychotropic
substance on the person of an accused, where
the illicit article only was seized during the
search conducted in breach of the provisions
of Section 50.
In Pooran Mal the relief claimed by the main
appellant in his case was in respect of action
taken under Section 132 of the Income Tax
Act, 1961 by way of search and seizure of
certain premises on the ground that the
authorisation for the search as also the
search and seizure of the materials were
illegal. In that case articles consisting of
account books and documents besides some
cash, jewelry and other valuables were seized
by the Income Tax Authorities purporting to
act under the authorisation of a search and
seizure issued under Section 132 of the
Income Tax Act. The Constitution Bench
dealt both with the challenge on
constitutional and non-constitutional
grounds to the search and seizure. The Court
opined that the power of search and seizure
in any system of jurisprudence is ‘an
overriding power of the State for the
protection of social security and that power is
necessarily regulated by law’. …
[Pooran Mal] has to be considered in the
context in which it was rendered. It is well-
settled proposition of law that a decision is an
authority for what it decides and not that
everything said therein constitutes a
precedent. The courts are obliged to employ
an intelligent technique in the use of
precedents bearing it in mind that a decision
of the court takes its colour from the
questions involved in the case in which it was
rendered. …
[Pooran Mal] therefore, cannot be understood
to have laid down that an illicit article seized
during the search of person, on prior
information, conducted in violation of the
provisions of Section 50 of the Act can be used
as evidence of unlawful possession of the
illicit article on the person from whom that
contraband had been seized during an illegal
search. Apart from the position that in
Pooran Mal, on facts, it was found that the
search and seizure conducted in the cases
under consideration in that case were not
vitiated by any illegality, the import of that
judgment, in the present context, can only be
to the effect that material seized during
search and seizure, conducted in
contravention of the provisions of Section 132
of the Income Tax Act cannot be restrained
from being used, subject to law, before the
Income Tax Authorities in other legal
proceedings against the persons, from whose
custody that material was seized by issuance
of a writ of prohibition. It was not the seized
material in Pooran Mal, which by itself could
attract any penal action against the assessee.
What is implicit from the judgment in Pooran
Mal is that the seized material could be used
in other legal proceedings against an
assessee, before the Income Tax authorities
under the Income Tax Act, dealing with
escaped income. It is, therefore, not possible
to hold that the judgment in Pooran Mal can
be said to have laid down that the “recovered
illicit article” can be used as proof of unlawful
possession of the contraband seized from the
suspect as a result of illegal search and
seizure.
If Pooran Mal is read in the manner in which
it has been construed in State of Himachal
Pradesh v. Pirthi Chand (though that issue
did not strictly speaking arise for
consideration in that case), then there would
remain no distinction between recovery of
illicit drugs etc. seized during a search
conducted “after” following the provisions of
Section 50 of the NDPS Act and a seizure
made during a search conducted “in breach
of” the provision of Section 50 of the NDPS
Act. Prosecution cannot be permitted to take
advantage of its own wrong. Conducting a
fair trial for those who are accused of a
criminal offence is the cornerstone of our
democratic society. A conviction resulting
from an unfair trial is contrary to our concept
of justice. Conducting a fair trial is both for
the benefit of the society as well as for an
accused and cannot be abandoned. While
considering the aspect of fair trial, the nature
of the evidence obtained and the nature of the
safeguard violated are both relevant factors.
Courts cannot allow admission of evidence
against an accused, where the court is
satisfied that the evidence had been obtained
by a conduct of which prosecution ought not
to take advantage particularly when that
conduct had caused prejudice to the accused.
If after careful consideration of the material
on the record it is found by the court that the
admission of evidence collected in search
conducted in violation of Section 50 would
render the trial unfair then that evidence
must be excluded.
In R. v. Collins 1987 (1) SCR 265 (Canada)
the Supreme Court of Canada speaking
through Lamer, J. (as His Lordship, Chief
Justice of the Supreme Court of Canada then
was) opined that the use of evidence collected
in violation of the Charter rights of an
accused would render a trial unfair and the
evidence inadmissible. In the words of the
Supreme Court of Canada:
The situation is very different with respect to
cases where, after a violation of the Charter,
the accused is conscripted against himself
through a confession or other evidence
emanating from him. The use of such
evidence would render the trial unfair, for it
did not exist prior to the violation and it
strikes at one of the fundamental tenets of a
fair trial.
… The question of admissibility of evidence,
which may be relevant to the question in
issue, has thus to be decided in the context
and the manner in which the evidence was
collected and is sought to be used.
In view of the provisions of Chapter IV of
NDPS Act, mere unlawful possession of a
contraband amounts to an offence and is
punishable with rigorous imprisonment for
terms which shall not be less than 10 years
but can extend to 20 years or 30 years in
addition to a fine which shall not be less than
one lakh of rupees but which may extend to
two lakhs or three lakhs of rupees. On a
charge of possession of a dangerous drug or a
psychotropic substance, if it is established
that the accused had the contraband in his
possession without authority, he is liable to
be punished. “Unlawful possession” of the
contraband is the sine qua non for recording
conviction under the NDPS Act and the most
important ingredient of an offence under the
NDPS Act. …
Thus, even if, it be assumed for the sake of
argument that all the material seized during
an illegal search, may be admissible as
relevant evidence in other proceedings, the
illicit drug or psychotropic substance seized
in an illegal search cannot by itself be used as
proof of unlawful conscious possession of the
contraband by the accused. An illegal search
cannot also entitle the prosecution to raise a
presumption under Section 54 of the Act
because presumption, is an inference of fact
drawn from the facts which are known as
proved. A presumption under Section 54 of
the Act can only be raised after the
prosecution has established that the accused
was found to be in possession of the
contraband in a search conducted in
accordance with the mandate of Section 50.
We, therefore, hold that an illicit article
seized from the person of an accused, during
search conducted in violation of the
safeguards provided in Section 50 of the Act,
cannot by itself be used as admissible
evidence of proof of unlawful possession of
the contraband on the accused. Any other
material/article recovered during that search
may, however, be relied upon by the
prosecution in other/independent
proceedings against an accused
notwithstanding the recovery of that
material during an illegal search and its
admissibility would depend upon the
relevancy of that material and the facts and
circumstances of that case.
Thus, considered we are of the opinion that
the judgment in Ali Mustaffa correctly
interprets and distinguishes the judgment in
Pooran Mal case and the broad observations
made in Pirthi Chand and Jasbir Singh case
are not in tune with the correct exposition of
law, as laid down in Pooran Mal case. …

NOTES, COMMENTS & DISCUSSION

1. In both Malkani and Poornal Mal the Supreme Court was strongly urged to create an
exclusionary rule prohibiting the admissibility of illegally obtained evidence but on both occasions
the Court refused to lay down any such rule. In Baldev Singh the Court was once again strongly
urged to lay down a similar rule and the Court came very close but still refused to lay down any
such exclusionary rule. Though some safeguards pertaining to evidence obtained illegally have
been laid down in Baldev Singh those safeguards are limited only to the NDPS Act. Is it possible
to argue that these safeguards should be extended to entire criminal jurisprudence and a general
exclusionary rule by laid down in this respect? If you were to articulate such an argument, how
would you go about it?

2. Legal Position in the United States of America. In the USA, illegally obtained evidence
is not admissible at a criminal trial and this protection stems from the Fourth Amendment to the
United States Constitution. There are several exceptions to this rule but this is not the place to
discuss all of them in detail. It is widely believed in USA that this rule was laid down for the first
time in Weeks v. United States, 232 U.S. 383 (1914). (See eg. Charles Alan Wright, Must the Criminal
go free if the Constable blunders?, 50 Texas Law Review 736 (1972)). However, a closer review of the
reported US Supreme Court opinions shows that the first case on the point is not Weeks but Boyd
v. United States, 116 U.S. 616 (1885). Boyd is also the most widely cited US Supreme Court opinion
on the point. It is cited in almost every Fourth Amendment case of any doctrinal importance.
(See e.g. Weeks, Mapp v. Ohio, 367 U.S. 643 (1961) at 646, 662, Plymoth Sedan v. Pennsylvania, 380 U.S.
693 (1965) at 696.)

In Weeks, the petitioner was charged with importing merchandise into the U.S. without a payment
of custom duties and therefore had committed fraud under a Congressional statue passed in 1874.
The statute provided that upon the order of the court, which was to be passed at the court’s
discretion, the defendant was required to produce such ‘book, invoice or paper’ in the court as the
prosecution might require (on the ground that such book, invoice or paper will tend to prove any
allegation made by the prosecution). But if the defendant failed to or refused to produce such
book, invoice or paper, the allegations stated in the indictment were to be taken as confessed,
unless the failure or refusal was explained to the court’s satisfaction. An order under this statute
was passed by a lower court requiring the accused to produce certain invoices that prosecution
had deemed necessary. They were produced but an objection was taken as to reception of these
in evidence as the rule in the statute amounted to compulsion to produce self-incriminatory
evidence as therefore was unconstitutional. The burden on proving innocence was therefore
shifted on to the accused. The question before the US Supreme Court was, “Is a search or seizure,
or, what is equivalent thereto, a compulsory production of a man’s private papers, to be used in
evidence against him in a proceeding to forfeit his property for alleged fraud against the revenue
laws – is such a proceeding for such a purpose an “unreasonable search and seizure” within the
meaning of the Fourth Amendment of the Constitution? or, is it a legitimate proceeding?”. The
US Supreme Court took a comparative approach and after a discussion of the English legal
position on the point held –

… any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as
evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment.∗ In
this regard the Fourth and Fifth Amendments run almost into each other. … For the “unreasonable
searches and seizures” condemned in the Fourth Amendment are almost always made for the purpose of
compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth
Amendment. … [W]e 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.

On this basis the order the notice to produce the invoice, the order by virtue of which the notice
was issued and the statute of 1874 that authorized the order were all held unconstitutional and
void.

Then came the celebrated case of Weeks v. United States, 232 U.S. 383 (1914) where the petitioner
was charged with the use of mails for the purpose of transporting coupons or tickets representing
chances or shares in a lottery or gift enterprise in violation of the U.S. federal law. The petitioner
was arrested by the police without a warrant and then his house was searched by the police and
subsequently by a US Marshall without a search warrant. This warrantless search resulted in the
recovery certain papers that were introduced into evidence during the trial. The
petitioner/defendant objected to admissibility of these papers on the ground that they had been
obtained in violation of his Fourth Amendment rights. The Court accepted the petitioner’s
position and held that the papers obtained consequent to a warrantless search were not admissible
into evidence. The following observation of Court is worth noting –

The tendency of those who execute the criminal laws of the country to obtain conviction by means of
unlawful searches and seizures and enforced confessions, the latter often obtained after subjecting accused

∗
The Court here is referring to Entick v. Carrington, 19 Howell’s State Trials 1029. Entick was described by
Justice Bradley (who wrote the opinion of the Court) as ‘one of the permanent monuments of British Constitution’.
In Entick the issue arose, not so much from the fact that whether the law gave the power to issue a general search
warrant to the Secretary of State but from the manner in which this power was exercised by him. Lord Camden
in Entick held that being cruel and unjust practice the law does not oblige a man to accuse himself. An evidence
obtained from a search in a manner that amounts to trespass and invade into a man’s property should be disallowed
on the same principle. Lord Camden also held that a compelled confession and evidence obtained (in the nature
of a man’s private papers) by illegally invading into a man’s privacy both stand at the same footing.
persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no
sanction in the judgments of the courts which are charged at all times with the support of the Constitution
and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.

However, it should also be noted that the application of this principle to the facts of the case
whereby it was held that the US Marshal could only have invaded the house of the defendant
‘when armed with a warrant issued as required by the Constitution’ has attracted scholarly criticism
of the highest order. It has been very convincingly argued that while framing the Fourth
Amendment the drafters of the same intended to make the searches and seizures reasonable and
not warranted. (See Akhil Reed Amar, Fourth Amendment First Principles, 107 Harvard Law Review
757 (1994)).

Mapp v. Ohio, 367 U.S. 643 (1961) is also a case of extreme significance. In this case the police
officers forcibly opened the door of the petitioner and gained entrance into her house. When she
demanded a search warrant a piece of paper purported to be a warrant was shown to her, which
she grabbed and placed in her bosom but which was subsequently recovered from her by force
and never shown to the court. She had also retained a lawyer before police forcibly entered into
her house but he was not allowed to meet her. Subsequently a search was conducted consequent
to which certain obscene materials were recovered for which she was prosecuted under Ohio law.
The evidence obtained by police high-handedness in this case was described by the Court as
‘evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons
as a specific guarantee against that very same unlawful conduct’. Evidence so recovered was held
to in admissible by the US Supreme Court in the most ringing endorsement of the duty of the
courts to uphold the law and to ensure that the State is brought to task whenever it acts in violation
of the very Constitution and the laws its officials are sworn to uphold –

There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary
doctrine “[t]he criminal is to go free because the constable has blundered”. … In some cases this will
undoubtedly be the result. But as was said in Elkins, “there is another consideration – the imperative of
judicial integrity.” 346 U.S., at 222. The criminal goes free, if he must, but it is the law the sets him free.
Nothing can destroy a government more quickly than its failure to observe its own laws, or worse,
its disregard of the charter of its own existence.
(Emphasis Added)

The competing goals of deterring police misconduct and protecting unreasonable invasions of the
privacy of the people once again came into the fore in US v. Leon, 468 U.S. 897 (1984) where the
question of law was whether the exclusionary rule is applicable to prosecution’s use of evidence
recovered by the police while acting in ‘reasonable reliance’ on a search warrant issued by a ‘neutral
magistrate’ but has been ultimately found unsupported by probable cause. In this case a ‘facially
valid’ search warrant issued by a State Superior Court Judge resulted in recovery of large quantities
of drugs and other evidence at the residences of the respondents. A motion to suppress this
evidence was filed and granted in part by the District Court on the ground that the affidavit was
insufficient to establish probable-cause. The ‘substantial cost’ related with the exclusionary rule
was noted as a source of concern and the Court correctly noted that ‘an indiscriminate application
of the exclusionary rule’ will also end up generating disrespect from law and administration of
justice. If too many guilty people are allowed to by the courts to go free that is bound to bring the
judicial process itself into question just like indiscriminate condonation of police lawlessness is
bound to raise questions into the minds of the people about the independence of judges. Thus
engaging in a cost-benefit analysis of suppressing physical evidence seized by the police, in this
case relying on a warrant issued by a neutral magistrate, the Court held that, “… the marginal or
nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance
on a subsequently invalidated search warrant cannot justify the substantial cost of exclusion.” On
facts it was held that the police officer’s reliance on the magistrate’s determination of probable
cause was objectively reasonable and thus there was no reason to apply the ‘extreme sanction’ of
the exclusionary rule in this case. Later, in Illinois v. Krull, 480 U.S. 340 (1987) evidence obtained
consequent to a search performed by a police detective objectively relying on a State law (a
provision in the Vehicle Code of Illinois) that was later found unconstitutional by a federal court
was held admissible. As in Leon, the Court’s analysis was informed by a cost-benefit analysis.

3. Questions arising from a comparison with the legal position in the USA. The
similarity between Boyd and Baldev Singh might be noted. In Baldev Singh the trial court was
mandatorily required to presume guilt of the person from whom illegal drugs were recovered. The
burden of proving innocence was therefore shifted to the accused with prosecution only required
to establish that illegal drugs were recovered from the person of the accused. The statute of 1874
created an adverse presumption to be drawn from refusal or failure to produce documents, but it
pushed the presumption too far. Are there any similarities between Boyd and Baldev Singh?

In Pooran Mal the Court held that illegally obtained evidence is admissible so long as the test of
relevancy is satisfied. It characterized search and seizure as ‘weapons in the armory of those whose
duty it is to maintain social security in its broadest sense. A similar argument was advanced by the
State in Weeks before the US Supreme Court whereby it was argued that the courts should not go
into the manner in which the evidence was obtained so long as it was relevant. But in Baldev Singh
the Court also stressed that admitting illegally obtained evidence in a criminal trial brings the
legitimacy of the judicial process into question. Is it desirable to have an exclusionary rule in India
as well whereby illegally obtained evidence is inadmissible even though it is relevant? How would
you balance the competing concerns of enabling the police to gather all the relevant evidence and
protecting the people from unreasonable searches and seizures?

Can it be argued that a search and seizure that lacks the authority of law is an illegal search and
thus covered by Baldev Singh making the consequently recovered evidence inadmissible? Is there a
constitutional dimension of the criminal procedure law that governs the collection of evidence that
prohibits the police from engaging in unreasonable searches and seizures? Is it important to draw
a distinction between a warrantless search and an unreasonable search in India?

4. The Unfair Operation Principle that was stated in Malkani and also in Pooran Mal gives the
judge the discretion to allow admission of illegally obtained evidence so long as the evidence does
not cause unfair prejudice to the accused. But in practice this is a principle that is not followed
and admissibility of illegally obtained evidence continues to be governed by the rule of relevancy
subject to specific legal prohibitions. Is it possible to develop an exclusionary rule using this Unfair
Operation Principle?