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TMI Blog2014 (8) TMI 1071X X X X Extracts X X X X X X X X Extracts X X X X ..... ikalan, Baddi, District Solan, H.P., on the grounds that the Punjab Police has not followed the due procedure and mandate of law and are without any jurisdiction. 2. Precisely, the case of the petitioners is that the Punjab Police had no jurisdiction to enter into the territorial jurisdiction of the State of Himachal Pradesh and to conduct the searches and seizures in the said premises and have sought the following reliefs amongst the others, on the grounds taken in the memo of writ petition: "Writ Petition under Article 226 of Constitution of India for issuance of appropriate writ, order or direction humbly beseeching this Hon'ble Court to declare the purported searches and seizures conducted by Punjab Police at the premises of the petitioners in the State of Himachal Pradesh on 15.11.2013 and 16.11.2013 without following mandate law to be illegal, null and void ab-initio. Further for issuance of appropriate writ, order or directions to Respondents No. 1, 2, 4 and 6 (police authorities in the State of Himachal Pradesh) to register a case and investigate the role of various persons including police personnel from Punjab who had conducted alleged searches and seizures in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents, which are taken on record. 4. On a bare perusal of the writ petition alongwith the documents annexed therewith, one comes to an inescapable conclusion that FIR No. 56 of 2013 was lodged on 15th May, 2013, at Police Station Banur, District Patiala, for commission of offences punishable under Sections 379, 411, 473, 120-B of the Indian Penal Code (hereinafter referred to as "the IPC") and Sections 21, 22, 61 and 85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act"). During investigation, the Investigating Officer was of the view that the search is to be conducted at various places, also in the premises of the petitioners at Solan and accordingly, sought permission in terms of the mandate of Criminal Procedure Code (hereinafter referred to as "the CrPC"). The JMIC, Mohali, after examining the request and the contents contained in the motion, granted the permission and permitted the Investigating Officer to conduct search in the said premises at Solan vide order, dated 14th November, 2013. It is apt to reproduce the relevant portion of order, dated 14th November, 2013, made by JMIC, Mohali, herein: "Heard on the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t questioning the same, have invoked the jurisdiction of this Court, though has made the foundation of the writ petition on the said order. 6. The writ petitioners had also invoked the jurisdiction of the Punjab and Haryana High Court by the medium of CWP No. 88 of 2013, titled as Jagjit Singh Chahal versus State of Punjab and others. It is apt to reproduce the reliefs sought by the petitioners in CWP No. 88 of 2013 before the Punjab and Haryana High Court herein: "i. Issue entrustment of investigation in case FIR No. 56 dated 15.5.2013 registered under Sections 379/411/473/120-B IPC and 21/22/61/85 Narcotic Drugs And Psychotropic Substances Act, 1985 at Police Station Banur District Patiala (Annexure P- 46) (hereinafter referred to as 'NDPS Act') and other such similar cases apparently being investigated by Special Investigation Team under the supervision of Respondent No. 3 Senior Superintendent of Police, Patiala to the Central Bureau of Investigation (hereinafter referred to as 'CBI') in view of the wide ranging ramifications/repercussions both national and international including the urgent need to unearth the unholy nexus involving officials, ministers, bur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds aided with latest technology including Video recording etc. wherever necessary so as to instill confidence into the purported searches, seizures, disclosures and recoveries etc. made in the course of such investigations. vi. Issue any other order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, may kindly be passed in favour of the Petitioners; vii. Dispense with the service of the advance notices upon the respondents; viii. Exempt the Petitioner from filing the certified/original as well as true type copies of Annexures P-1 to P-60; ix. Costs of the petition be Awarded in favour of the Petitioner; It is further prayed that this Hon'ble court may be pleased to stay all further proceedings arising out of FIR No. 56 dated 15.5.2013 registered under Sections 379/411/473/120-B IPC and 21/22/61/85 Narcotic Drugs And Psychotropic Substances Act, 1985 at Police Station Banur District Patiala (Annexure P-46) qua the petitioner in the interest of justice." 7. The said writ petition was listed before the Punjab and Haryana High Court on 9th January, 2014, and the following order came to be passed by the Pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equested Chamba Police to conduct the search and effect the seizure. Accordingly, J&K Police also entered the territorial jurisdiction of Chamba district and the Chamba Police alongwith J&K Police made search and effected seizure without any order from the Court of competent jurisdiction either from J&K or from Himachal Pradesh. The person aggrieved filed applications before this Court for issuance of writs of mandamus and certiorari, which came to be dismissed on the ground that the same was not maintainable as the High Court was not having the jurisdiction. Feeling aggrieved, the same was questioned before the Apex Court and the Apex Court held that search made without following due process of law was bad and the search was conducted within the jurisdiction of Himachal Pradesh and the High Court of Himachal Pradesh had the jurisdiction. But, it would be profitable to record herein that in the case (supra), no order was made by the Magistrate having the competence and jurisdiction and in the present case, order has been passed by JMIC, Mohali. 11. Learned counsel for the petitioner further argued that the search has not been conducted as per the provisions contained in the CrPC r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the power to make a search 'suo motu' in certain circumstances. In the next Criminal P. C., Act 1 of 1872, the relevant provisions were in Ss. 365, 368 and 379. Section 379 was more or less a repetition of S. 142 of the previous Code (Act 25 of 1861) vesting power in a police officer to make a 'suo motu' search. Section 365 appears to be the earliest statutory provision for the issue of a summons, either by a police officer or by a Court for the production of a document required for investigation. This was followed by S. 368 relating to the issue of search warrants which was in the following terms : "When a Magistrate considers that the production of anything is essential to the conduct of an inquiry into an offence known or suspected to have been committed or to the discovery of the offender, or when he consider that such inquiry or discovery will be furthered by the search or inspection of any house or place, he may grant his search-warrant; and the officer charged with the execution of such warrant may search or inspect any house or place within the jurisdiction of the Magistrate of the District. The Magistrate issuing such warrant may, if he se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anied by force. The service of a 'subpoena' is but the delivery of a paper to a party, - is open and aboveboard. There is no element of trespass of force in it." A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of security & 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 Art. 20 (3) would be defeated by the statutory provisions for searches. It is to be remembered that searches of the kind we are concerned with are under the authority of a Magistrate (excepting in the limited class of cases falling under S. 165 of the Criminal P.C.). Therefore, issue of a search warrant is normally the judicial function of the Magistrate. When such judicial function is interposed between the individual and the officer's autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts which may contain statements attributable to the personal knowledge of the accused and which may have tendency to incriminate him, would violate the constitutional guarantee against self-incrimination because he is not compelled to do anything. A passive submission to search cannot be styled as a compulsion on the accused to submit to search and if anything is recovered during search which may provide incriminating evidence against the accused it cannot be styled as compelled testimony. This is too obvious to need any precedent in support. The immunity against self-crimination extends to any incriminating evidence which the accused may be compelled to give. It does not extend to cover such situation as where evidence which may have tendency to incriminate the accused is being collected without in any manner compelling him or asking him to be a party to the collection of the evidence. Search of the premises occupied by the accused without the accused being compelled to be a party to such search would not be violative of the constitutional guarantee enshrined in Article 20(3). 15. It was, however, urged that Section 93(1) (c) must be read in the context of Section 93(1) (b) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s search warrant was being issued to conduct search of the premises used as office of an institution. The place will be in possession of the institution. The office-bearers of the Sabha are accused of an offence. Documents and books of accounts of the institution are required for the purpose of the trial against the office-bearers of the institution. The office premises could not be said to be in possession of any individual accused but stricto sensu it would be in possession of the institution. Books of accounts and other documents of the institution could not be said to be in personal custody or possession of the office-bearers of the institution but they are in possession of the institution and are lying in the office of the institution. A search of such a public place under the authority of a general search warrant can easily be sustained under S. 93(1)(c). If the order of the learned Magistrate is construed to mean this, there is no illegality committed in issuing a search warrant. Of course, issuance of a search warrant is a serious matter and it would be advisable not to dispose of an application for search warrant in a mechanical way by a laconic order. Issue of search warr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions applicable and also the development of law made by the judgments of the Apex Court. It apt to reproduce paras 17 and 18 of the judgment in Rajmal's case (supra) herein: "17. Now let us examine the first question on which the High Court has interfered, namely, the legality of the search procedure. 18. A three-Judge Bench of this Court in Radha Kishan v. State of U.P., AIR 1963 SC 822, while construing a similar provision in CrPC of 1898 held that an illegal search does not vitiate the seizure of the article. The only requirement of law in such cases is that the court has to examine carefully the evidence regarding the seizure. But beyond this no further consequences ensue. (AIR p. 824, para 5 of the Report.)" 20. It would also be profitable to reproduce para 14 of the judgment in M.T. Enrica Lexie's case (supra) herein: "14. The police officer in course of investigation can seize any property under Section 102 if such property is alleged to be stolen or is suspected to be stolen or is the object of the crime under investigation or has direct link with the commission of offence for which the police officer is investigating into. A property not suspected o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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