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2007 (12) TMI 413 - SC - CustomsWhether an objection if taken at the appropriate point of time would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular? Held that - In the instant case the statutory requirements had not been complied with as the person who had received the first information did not reduce the same in writing. An officer who received such information was bound to reduce the same in writing and not for the person who hears thereabout. Furthermore in this case apart from proving the fax and the copy of a challan nothing else has been proved. The fax was illegible. It allegedly was received in the PCO run by PW-17. He could not prove the contents of the fax. He also could not show when the same was received and from whom. It has not been shown that the accused was the person who obtained the said fax from PW-17. Furthermore contents of the said documents had not been proved. In absence of the aforementioned details the fax being illegible and its contents being not known the question of the same being admissible in evidence in terms of Section 67 of the Act would not arise. The xeroxed copy of the said fax had not been proved in the strict sense of the term. No secondary evidence could have been led to prove another secondary evidence. Contents of document are required to be proved. The contents of a document could be held to have been proved in terms of section 66 only when the contents are decipherable and not otherwise. Appeal dismissed.
Issues Involved
1. Interpretation of Sections 42 and 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 2. Compliance with statutory requirements under Section 42 of the NDPS Act. 3. Admissibility of evidence and proof of documents. 4. Right to privacy in the context of search and seizure. Detailed Analysis 1. Interpretation of Sections 42 and 43 of the NDPS Act The primary issue involved in this case is the interpretation of Sections 42 and 43 of the NDPS Act. Section 42 deals with the power of officers to enter, search, seize, and arrest without a warrant or authorization in certain circumstances, while Section 43 pertains to the power of seizure and arrest in public places. 2. Compliance with Statutory Requirements under Section 42 of the NDPS Act The High Court reversed the trial court's judgment on the grounds that the statutory requirements of Section 42 had not been complied with. Specifically, the High Court noted: - The information received was not reduced to writing by the officer who received it but by PW-1, Parmar, which did not fulfill the requirement of Section 42(1) of the Act. - The High Court relied on previous judgments, including State of Punjab v. Balbir Singh, Karnail Singh v. State of Rajasthan, and Abdul Rashid Ibrahim Mansuri v. State of Gujarat, which held that the provisions of Section 42 are mandatory. 3. Admissibility of Evidence and Proof of Documents The judgment also dealt with the admissibility and proof of documents: - The fax message and its xerox copy, which were crucial pieces of evidence, were found to be illegible and not properly proved. - The prosecution failed to prove the contents of the fax, the time of its receipt, and the person who obtained it. - The court emphasized that secondary evidence cannot be used to prove another piece of secondary evidence, and the contents of a document must be decipherable to be admissible. 4. Right to Privacy in the Context of Search and Seizure The judgment highlighted the right to privacy, particularly in the context of searches conducted in private spaces within public places: - The court noted that while a hotel is a public place, a room occupied by a guest is not, and the guest is entitled to privacy. - The judgment underscored that statutory powers of search and seizure must balance law enforcement needs with the protection of citizens from oppression and injustice. - Reference was made to the U.S. Supreme Court decision in Danny Lee Kyllo v. United States, which held that the use of sense-enhancing technology to gather information from a home constitutes a Fourth Amendment search. Conclusion The Supreme Court upheld the High Court's decision, affirming that the statutory requirements under Section 42 had not been met, and the evidence presented was not admissible. The appeal was dismissed, emphasizing the need for strict compliance with statutory provisions and the protection of individual rights during search and seizure operations.
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