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The State of Tamil Nadu and anr. Vs. Kandasamy Pilial and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1977CriLJ1690
AppellantThe State of Tamil Nadu and anr.
RespondentKandasamy Pilial and ors.
Cases ReferredK. G. Nataraja Mudaliar v. State of Tamil Nadu
Excerpt:
- - as in this case, the respondents themselves accepted the ownership of the stocks, the failure to comply with the requirements is not fatal to the seizure. the question that arises is whether the failure to comply with those requirements will render that seizure illegal and the property seized liable to be returned. 10. it has been held that the irregularity in a search and the failure to obtain a warrant would always afford a ground for scrutiny! the evidence of the person who conducted the illegal search should be scrutinised very carefully, the conviction of the accused will depend upon the assessment of the evidence by the court and the failure to comply with the provisions regulating the search may cast soma doubts upon the officer conducting the search, but there is nothing in.....kailasam, c.j.1. all these writ appeals raise the same questions of law and are dealt with together. the main arguments were addressed in writ appeal no. 163 of 1975. these writ appeals can be disposed of together by a common order except in writ appeal no, 202 of 1975, where, on the facts it is submitted that no case has been made out against the first respondent.2. the respondent in writ appeal no. 163 of 1975 is a partnership firm m/s. kandasamy pilial, a licensed wholesale dealer in paddy and rice in attur. salem district. the firm also owned a rice mill in attur. the respondent filed the writ petition for the issue of a writ of mandamus directing the second appellant herein, the district supply officer, salem, to return the entire stock of paddy seized from the respondent's premises.....
Judgment:

Kailasam, C.J.

1. All these writ appeals raise the same questions of law and are dealt with together. The main arguments were addressed in Writ Appeal No. 163 of 1975. These writ appeals can be disposed of together by a common order except in Writ Appeal No, 202 of 1975, where, on the facts it is submitted that no case has been made out against the first respondent.

2. The respondent in Writ Appeal No. 163 of 1975 is a partnership firm M/s. Kandasamy Pilial, a licensed wholesale dealer in paddy and rice in Attur. Salem District. The firm also owned a rice mill in Attur. The respondent filed the writ petition for the issue of a writ of mandamus directing the second appellant herein, the District Supply Officer, Salem, to return the entire stock of paddy seized from the Respondent's premises on 20-7-1974 without any further proceedings as per the order in R. O. C. No.134944/J 10 dated 22-7-1974. The impugned order purported to withdraw all the facilities that were given to the respondent for the time being pending proceedings to be taken for the offences committed by the firm, Ramanujam J. who heard the Writ Petitions, allowed the writ petitions and quashed the impugned orders. Hence these appeals by the State.

3. The second Appellant, the Tahsildar and the Taluk Supply Officer inspected the business premises of the respondent and found that there was sale of paddy from wholesale dealers to the Respondent. The authorities seized all the stocks of paddy kept in the godown of the Respondent and sealed the doors. The second Appellant, the District Supply Officer, initiated proceedings against the Respondent for violation of Clause 3(11) of the Tamil Nadu Paddy and Rice Dealers (Licensing, Regulation and Disposal of Stocks) Control Order, 1968, hereinafter referred to as the Order as the sale of paddy by one wholesaler to another was prohibited by that clause. The complaint of the Respondent is that at the time of seizure, the procedure contemplated under Clause 14(1) and (3) of the Order was not followed and that no respectable person of the locality was asked to be present at the time of search and seizure. It is submitted that Clause 3(11) of the Order for the violation of which proceedings are initiated is null and void and unenforceable. The Respondent also questioned the legality of the order suspending the business of the firm. As according to the respondent, the seizure was illegal, a writ of mandamus was prayed for for the return of the entire stock of paddy.

4. In the counter affidavit filed on behalf of the State it was stated that during the course of inspection of the rice mill, the District Supply Officer, Salem, noticed transactions in violation of the provisions of the Licensing Order and therefore ordered seizure of the stocks available with the Respondent. The officer was of the view that the sale of stocks from one wholesaler to another in the same area was in violation of Clause 3(11) of the Order and that keeping of stock in excess of the ceiling limit fixed by the Government was also contrary to law and therefore was liable to be seized. The suspension of the licence was justified on the ground that during the course of inspection it was revealed that the respondent had manipulated accounts to show that there was sale to the wholesalers and then a purchase from them. It was also contended that the procedure prescribed in the case of seizure contained in Sections 102 and 103 of the Cr. P. C., is only an enabling provision and as the Respondent himself accepted the ownership of the stocks, the validity of the seizure cannot be questioned and there was no need for obtaining the signature of two independent witnesses.

5. The learned Judge found that the procedure contemplated under Clause 14(3) of the order was not followed, that no mahazar was prepared as contemplated by Sections 102 and 103 of the Cr. P. C. at the time of the seizure and that the obtaining of the signatures of two independent witnesses was also not considered necessary by the State in the case. Regarding the contention on behalf of the State that, though the procedure relating to search and seizure contained in Sections 102 and 103 of the Cri. P. C., was not followed, still the validity of the seizure could not be questioned, the learned Judge observed that it was held by this Court in Mangudi v. Sub-Inspector C. I. D. Ramnad 1970 Mad LW 278 : AIR 1971 Mad 275 that the non-observance of the procedure Under Sections 102 and 103 of the Cr. P. C., was not a mere irregularity, but amounted to an illegality. Following the decision of the Supreme Court in Board o.f Revenue Madras v. R.S. Jhaver AIR 1968 SC 59 where it was held that as the safeguards provided in Section 165 of the Cri. P. C., were not followed, anything recovered on a defective search of that kind must be returned, the learned Judge held that the search and seizure in this case having been effected in contravention of the safeguards enacted in Clause 14 of the Order, the seizure was not legal and therefore allowed the writ petition.

6. The facts are not very much in dispute. The District Supply Officer during the course of the inspection of the rice mill of the Respondent found (1) sale of stocks from one wholesaler to another in the same area and (2) keeping of stock in excess of the ceiling limit fixed by the Government as per the notification.

7. The Tamil Nadu Paddy and Rice Dealers (Licensing, Regulation and Disposal of Stocks) Order, 1968, was passed by the Governor in exercise of the powers conferred Under Section 3 of the Essential Commodities Act, Central Act 10 of 1955, read with the Government of India Order No. GSR. IV dated 24th July, 1967, with the prior concurrence of the Central Government. Clause 3 provides for the licensing of dealers, Sub-clause (11) of Clause 3 prohibits the sale of stocks from one wholesaler to another, and keeping of excess stocks is also a contravention of the order, Clause 8 provides that contravention of any of the conditions of the licensing order would enable the authority to cancel or suspend the licence. The contravention is also punishable Under Section 3(2)(g) of the Essential Commodities Act under which the order was: promulgated. A contravention of any of the rules made Under Section 3 of the Essential Commodities Act is punishable Under Section 7 of that: Act. But the authorities have not proceeded with the cases registered against the Respondents as the matter was agitated in writ petitions in this Court

8. The contention which found favour with the learned Judge was that as the requirements of Clause 14(3) of the Order and Sections 102 and 103 of the Crl P. C,, had not been complied with, the seizure waa illegal. The argument before us was mainly confined to the legality of the seizure without stictly observing the provisions of Clause 14 of the order and Sections 102 and 103 of the Cri. P. C.Clause 14(3) of the order runs as follows:

The provisions of Sections 102 and 103 of the Crl. P. C., 1898 (Central Actv.of 1898), relating to search and seizure shall so far as may be apply to searches and seizures under this clause.

Section 102 of the Crl. P. C.,v.of 1898 provides that whenever any place liable to search under Chap. 7 is colsed, any person residing in the place that is closed, shall on production of the warrant by the officer allow him ingress thereto and afford all reasonable facilities for a search therein. If ingress cannot be obtained, the officer executing the warrant may proceed in the manner provided for Under Section 48 that is, the officer may break open any door or window after notification of his authority and purpose. If any person in or about the place is suspected of concealing about his person any article for which search is made, such person may be searched. This Section requires the officer to demand ingress before making an entry into the house by breaking open the door. The officer is bound to produce the warrant. But a police officer while investigating a cognisable offence is not bound to produce the warrant Section 103 requires that before making a search the officer shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them to do so. The search shall be made in the presence of the witnesses and a list shall be prepared by the officer which shall be signed by the witnesses. The persons wit-nessing under this section shall not be required to attend the Court as a witness of the search unless specially summoned by it. The occupant of the place searched shall be permitted to attend during the search and a copy of the list prepared under this Section signed by the said witnesses shall be delivered to such occupant or person. When a person is searched Under Section 102(3), a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person.

9. It is admitted by the State that the procedure contemplated by Sections 102 and 103 relating to search and seizure was not followed. It is contended that the provision is only an enabling provision to prove the bona fide of the search and the stock seized. As in this case, the Respondents themselves accepted the ownership of the stocks, the failure to comply with the requirements is not fatal to the seizure. It is also contended that there is no irregularity in the procedure followed as the obtaining of signatures of two independent witnesses was not considered necessary. It is therefore clear that the requirements of Sections 102 and 103 of the Crl. P. C. were not complied with, in that no mahazar was prepared and the presence of two independent witnesses secured. The question that arises is whether the failure to comply with those requirements will render that seizure illegal and the property seized liable to be returned.

10. It has been held that the irregularity in a search and the failure to obtain a warrant would always afford a ground for scrutiny! of the evidence. But, if after close scrutiny the Court comes to the conclusion that the articles were recovered from the possession of the accused, the conviction would be sound, When the procedure laid down Under Section 103 Cr. P. C. is not strictly followed, the evidence discovered by the search does not thereby become inadmissible nor is the conviction based upon such evidence illegal. In a case of such a search, evidence should be viewed with great caution. The evidence of the person who conducted the illegal search should be scrutinised very carefully, The conviction of the accused will depend upon the assessment of the evidence by the Court and the failure to comply with the provisions regulating the search may cast soma doubts upon the officer conducting the search, but there is nothing in law which makes the evidence inadmissible. In Radha Kishan v. State of U. P. : (1963)IILLJ667SC the Supreme Court in dealing with a defective search held that while the search is conducted in contravention of Section 103 the search can be resisted by a person whose premises are sought to be searched and because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure. The consequences of the illegal search are two fold (1) the person whose premises are sought to be searched may resist the search and (2) the Court may be inclined to examine carefully the evidence regarding the seizure. But the Supreme Court stated that beyond these two consequences no further consequence ensues and the seizure of the articles is not vitiated. The Supreme Court declined to interfere with the acceptance of the evidence of seizure by the High Court when the provisions of Section 103 were not strictly observed, At page 824, the Supreme Court summed up the position as follows:-

So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165 Crl. P. C., are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.

11. But the learned Judge relied on a decision of the Supreme Court in Board of Revenue Madras v. R.S. Jhaver : [1968]1SCR148 for coming to the conclusion that as the safeguards provided under the section are not followed, anything recovered in a defective search must be returned. In that case the Supreme Court was dealing with a search of a residential accommodation Under Section 41(2), (3) and (4) of the Madras General Sales Tax Act. The proviso to Sub-section (2) of Section 41 lays down that all searches under the subsection shall so far as may be, be made in accordance with the provisions of the Crl, P. C. The Supreme Court held that the safeguards provided Under Section 165 would also apply to searches made under Sub-section (2) of Section 41. These safeguards are: 1. The officer must have reasonable grounds for believing that anything necessary for the purpose of recovery of the tax may be found in any place within his jurisdiction. 2, He must be of the opinion that such a thing cannot be otherwise got without undue delay, 3. He must record in writing the grounds of his belief 4. He must specify in writing so far as possible the thing for which search is to be made. The Supreme Court held that as the accounts have been seized without following the safeguards provided Under Section 165 of the Crl, P. C., anything recovered in such a defective search must be returned. This observation is very strongly relied on by the learned Counsel for the Respondent who submitted that as the first proviso to Sub-section (2) of Section 41 is in part materia with Clause 14(3) of the Order, the above decision would govern this case. From the facts of that case it is found that the officers of the commercial taxes department raided the premises of Zenith Lamps and Electricals Ltd. The premises were searched and a suit case was seized and forcibly removed by the officers, who made the raid in spite of the fact that they were informed that the box did not contain any papers or documents belonging to the company, The raid and the search were made by the authorities on information that one of the Directors of the Company had removed the box containing secret accounts relating to it. A return of the articles seized was asked for mainly on the ground that Under Section 41 the officers of the department had no authority to search the premises and seize either the account books or the goods found therein. The powers conferred Under Section 41 are to be exercised for the purpose of the Act namely with reference to assessment proceeding at all stages including recovery of tax and prosecution of offences. On a construction of Section 41(2) the Supreme Court held that the authorities had power for inspection and search and Under Section 41(3) to seize without warrant and that if the place searched was purely a residential accommodation, it could not be searched without a search warrant from a Magistrate. The Supreme Court held that the officer is not empowerd to search and much less to seize anything from a residential accommodation as he could not enter and search it unless he has a warrant from the Magistrate to do so. The warrant issued for the search of the residential accommodation was held to be bad because it showed that the Magistrate had not applied his mind to the question of issuing it, inasmuch as there were portions which should have been struck out from the printed form and gaps which should have been filled and this was not done. Observing that anything recovered from the search of the residential accommodation on the basis of the defective warrant must be returned, the Supreme Court held that the goods must be returned. Regarding the accounts which have been seized, the Supreme Court held that, as the safeguards provided Under Section 165 of the Crl. P. C., did not appear to have been followed, anything recoverd on a defective search of this kind must be returned.

12. The provisions as to search and seizure in the Tamil Nadu Paddy and Rice Dealers (Licensing Regulation and Disposal of Stocks) Order, 1968 are different from the provisions relating to search and seizure as provided for under the Tamil Nadu General Sales Tax Act, Clause 14(1) of the Order empowers the Officer to inspect any book, account or document or stock of paddy and to seize any such book or account and to enter and search any premises or place and to seize the stock of paddy. Sub-clause (3) of Clause 14 provides that the provisions of Sections 102 and 103 of the Crl. P. C. relating to search and seizure shall so far as may be, apply to searches and seizures under that clause. The provisions that are applicable, it may be noted, are Sections 102 and 103 of the Crl. P, C., relating to search and seizure and not all the provisions contained in the Crl. P. C., as: provided for in Section 41(2) of the Tamil Nadu. General Sales Tax Act. The proviso to Section 41(2) with which the Supreme Court was concerned, provided that all searches under Sub-section (2) shall, so far as may be, be ' made in accordance with the provisions of the Crl, P. C., 1898. The Supreme Court held that it would include Section 165 of the Crl. P. C. In that view it found that the safeguards, provided in Section 165 would apply to searches made Under Section 41(2) of the Sales Tax Act. Those safeguards are: 1. The officer must have reason to believe that anything necessary for the purpose of recovery of tax may be found in any place within his jurisdiction, 2. He must be of the opinion that such thing cannot be otherwise got without delay. 3. He must record in writing the grounds of his belief. 4. He must specify in such writing so far as possible the thing for which search is to be made. In dealing with the seizure of accounts, in contravention of Section 41(2) of the Sales Tax Act, the Supreme Court stated that the safeguards provided Under Section 165 of the Crl. P. C., were not followed as every one thought that that provision was not applicable. As the safeguards provided in Section 165 were not followed, the search was held to be defective and the books seized were ordered to be returned.

13. While Clause 14(1) of the order requires that the competent officer must have reason to believe that any contravention of the order has been committed before he embarks on an inspection, Sub-clause (3) makes only Sections 102 and 103 of the Crl. P. C., relating to search and seizure applicable and does not make all the provisions in the Crl. P. C. relating to search and seizure, like Section 165, applicable. All that Section 102 requires is that if the place is closed and if the officer wants to search, he should produce the warrant and then he would be allowed free ingress, If ingress is not allowed, the officer may proceed in the manner provided for Under Section 48 and if necessary search the person. Section 103 prescribes that the officer shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search. The search shall be made in their presence and a list of things seized shall be prepared. The occupant of the place searched, or some other person on his behalf, shall be permitted to attend during the search and a copy of the list prepared should be signed by the said witness. The decision of the Supreme Court in Board of Revenue, Madras v. R.S. Jhaver : [1968]1SCR148 related to the non-observance or the requirements of Section 165 of the Crl. P. C., which was required under the provisions of Section 41(2) of the General Sales Tax Act. But Clause 14(3) of the Order with which we are concerned does not make Section 165 of the Crl. P. C., applicable. In the circumstances, it will have to be considered whether the non-observance of the requirements of Sections 102 and 103 of the Crl. P. C, would vitiate the search. The decision in Radha Kishan v. State of U. P. : (1963)IILLJ667SC which has been referred to earlier, makes it clear that not only the contravention of Section 103, bat also Section 165 of the Cr. P. C., would not vitiate the search and seizure.

14. The inspection, search and seizure of the account books empowered Under Section 41 are for the purpose of the enforcement of the Act. The possession of the account books is not by itself an offence. It may be noted that the Supreme Court did not deal with articles, the possession of which by itself was an offence To take an obvious example, the possession of an unlicensed gun or a stolen property, is by itself an offence. If the search and the seizure is not in accordance with law, it may be open to the person accused to complain that the seizure was never made, or that the evidence as to seizure cannot be accepted, But once it is made out that the weapon or the stolen property was seized from the accused, the mere fact that the search and seizure were not in accordance with law would not vitiate the seizure. That the seizure is not vitiated has been clearly laid down by the Supreme Court in Radha Kishan v. State of U. P. : (1963)IILLJ667SC already referred to. In the case before us, the possession and storing of the paddy were in contravention of the provisions of Clause 3(ii) of the Order in that there was a sale of stock from one wholesaler to another and the firm possessed stocks in excess of the ceiling limit permitted under the Rules. These offences would entail the cancellation of the licence and the stock seized to be disposed of according to the directions of the licensing authority, or by the Authorised Officer. Further, the person who contravened the provisions of the Order is liable to be prosecuted Under Section 3 of the Essential Commodities Act. Unlike account books, which are liable to be returned if the search and seizure are not in accordance with the provisions of Sections 102, 103 and 165 of the Crl. P. C., in a case like the present, the person is not entitled to unconditional return of the goods, whether the seizure is in accordance with the provisions of Sections 102 and 103 or not. The authorities are at liberty to prosecute the person and to have the stocks disposed of in accordance with law. In cases where the stock of paddy itself is liable to be dealt with according to the provisions of the law, the person from whom the stock was seized cannot ask for the return of the stock as in the case of the account books under the Sales Tax Act.

15. In State of Rajasthan v. Rehma : 1960CriLJ286 in a case of a search under Rule 201 of the Rules under the Central Excises and Salt Act, the Supreme Court held that by reason of the provisions of Section 18, the provisions of Section 165 of the Crl. P. C., must be followed, The object of the search under the Act is only to ascertain whether there is a contravention of the provisions of the Act or the Rules and it has been held that the contravention of the provisions of Section 165 would make the search illegal. When it was contended that even if the reasons were not recorded by the Deputy Superintendent as required Under Section 165, Crl. P. C., it was only an irregularity and the respondent had no right to prevent the officer from making the search, the Supreme Court did not express any opinion as it was raised only before the Supreme Court for the first time. If the search is not according to law, the person may be entitled to resist it. But the question whether failure to observe the requirements of Section 165 is only a mere irregularity was not gone into that decision.

16. In Bai Radha v. State of Gujarat : 1970CriLJ1279 the question arose whether the trial became illegal when the search was not in accordance with law, The Supreme Court pointed out that it cannot be held that if a search is not carried out strictly in accordance with the provisions of Section 15 of the Suppression of Immoral Traffic in Women and Girls Act, the trial is rendered illegal. The Supreme Court observed that there is hardly any parallel between an officer conducting a search who has no authority under the law and a search having been made which does not strictly conform to the provisions of Section 15 of the Act. The principles which have been settled with regard to the effect of an irregular search made in exercise of the powers Under Section 165 of the Crl. P. C. would be fully applicable even to a case under that Act where the search has not been made in strict complianc with its provisions. There is no provision in that Act according to which any search carried out in contravention of Section 15 would render the trial illegal. In the absence of such a provision the law which has been laid down with regard to searches made under the provisions of the Crl. P. C., would apply. It is clear from the observations of the Supreme Court that though a search conducted by an officer who has no authority in law is illegal a search conducted by an officer having authority but not strictly conforming to the provisions of Section 165 of the Crl. P, C., is irregular but, the search will not be vitiated. When a trial takes place Section 537 of the Crl. P. C., will be applicable and a conviction based on the evidence relating to irregular search will not be illegal. The Supreme Court also referred to its earlier decision in H. N. Rishbud and Inder Singh v. State of Delhi : 1955CriLJ526 where it has been pointed out that a defect or an illegality in the investigation, however serious, has no direct bearing on the competency of the procedure relating to cognizance or trial of an offence and that whenever such a situation arises, Section 537 of the Crl. P. C., is attracted and unless the irregularity or the illegality in the investigation or trial can be shown to have brought about a miscarriage of justice, the result is not affected. Thus it is settled law that an irregular search will not vitiate the search and that a conviction can be based on the evidence of such an irregular search, unless the irregularity or the illegality is of such a nature as to have brought about a miscarriage of justice.

17. The learned Counsel for the Respondent referred to the decision of the Supreme Court in Wazir Chand v. State of H. P. : 1954CriLJ1029 where it was held that where the police in India seized goods in possession of the petitioner in India, at the instance of Police of Jammu and Kashmir and the seizure was not under any authority of law, inasmuch as they were not under orders of any magistrate nor were they under any of the Sections 51, 95. 98 and 165 of the Crl. P. C., since no report of any offence committed by the petitioner was made to the Police in India and the Indian Police were not authorised to make any investigation and the whole affair was a hole and corner affair between the officers of the Kashmir Police and the Indian Police, the seizure of the goods from the possession of the petitioner amounted to an infringement of his fundamental rights. This case is clearly distinguishable because the Indian Police had no authority at all to search. The search was without jurisdiction and there was not a mere question of Irregularity in the search. The recent decision of the Supreme Court in Bai Radha v, State of Gujarat : 1970CriLJ1279 also makes it clear that there is hardly any parallel between an officer conducting a search, who has no authority under the law, and a search having been made which does not strictly conform to the provisions of the law. The case in Wazir Chand v. State of H. P. : 1954CriLJ1029 was a case of the police acting without any authority at all. In cases where the officer had authority in law to conduct the search, but the provisions of the law are not observed, the result would be as laid down in Radha Kishan v. State of U. P. : (1963)IILLJ667SC that is, the seizure of the article will not be vitiated, though, because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure.

18. In M. P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) the Supreme Court was dealing with a search during the investigation of offences on warrants issued by the Magistrate simultaneously in about thirty four places. The search was for the purpose of obtaining evidence relating to various offences said to have been committed by a Company. The validity of the search warrant was questioned on various grounds. It was contended before the Supreme Court that the search warrants for the seizure of documents from the custody of persons were unconstitutional and hence illegal on the ground that in effect they would be tantamount to compelled production of evidence In support of this contention various decisions of the American Courts based on Fourth and Fifth Amendments were cited. The Supreme Court held that the decisions of the American Courts (particularly in Boyd v. United States 1888-116 US 616, did not support the proposition that searches and seizures in general were violative of the privileges of protection against self-incrimination. Nor was it possible to import that doctrine with its differentiation between legal and illegal searches into our Constitution because we have nothing in our Constitution corresponding to the Fourth Amendment enabling the Courts to import the test of unreasonableness or any analogous criterion for discrimination between legal and illegal searches. The Supreme Court has clearly laid down that the rights conferred under the Fourth Amendment in America is not available in India and that there is no conditional protection against searches and seizures under the Indian law. But the question would still remain as to what is the effect of an illegal search. In this connection, though the decisions of the American Courts may not be binding authority, they are very instructive and illuminating and may be referred to for the purpose of clarifying the nature of the right of the State to search and seize and of the citizen to resist such a search and seizure.

19. The Fourth Amendment under the American Constitution assures the 'right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures'. The amendment was primarily a reaction to the evils associated with the use of the General warrant in England and the writs of assistance in the Colonies and was intended to protect the 'sanctity of a man's home and the privacies of life'. In order to protect the right conferred by the Fourth Amendment, the judiciary created what is known as the exclusionary rule. The exclusionary rule excluded the evidence which may be made available to the Court in an illegal search. The rule is calculated to deter and to compel respect for the constitutional guarantee by denying the policemen the evidence which they were able to secure as a result of an illegal search. The primary justification for the exclusionary rule is stated to be the deterrence of police conduct that violated the Fourth Amendment rights. The courts have held that the right is not a personal or constitutional right, but is intended to deter the police. The rule was described by Burger C. J. in his dissenting judgment in Bivens v. Six Unknown Named Federal Agents (1971) 403 US 388 He was of the view that the exclusionary rule had been operative long enough to demonstrate its flaws. He observed:

Over the years, the strains imposed by reality, in terms of the costs to society and the bizarre miscarriages of justice that have been experienced because of the exclusion of reliable evidence when 'constable blunders' have led the Court to vacillate as to the rationale for deliberate exclusion of truth from the fact finding process.' In a recent decision rendered by the Supreme Court of the United Sates in Stone Warden v. Powell on 6th July, 1976 Powell, J delivered the opinion of the Court in which Burger C. J. and four other Judges joined three judges dissenting. In his judgment, Powell, J. has held that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim a State prisoner cannot be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial and that in that context 'the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal and the substantial societal costs of application of the rule persist with special force. The Supreme Court of the United States held:

Despite the broad deterrent purpose of the exclusionary rule, it has never been interpreted to prescribe the introduction of illegally seized evidence in all proceedings or against all persons; in various situations the Court has found the policies behind the rule outweighed by countervailing considerations.

The ultimate question of guilt or innocence should be the central concern in a criminal proceeding. Application of the exclusionary rule, however deflects the truthfinding process and often frees the guilty. Though the rule is thought to deter unlawful police activity, in part through nurturing respect for Fourth Amendment values, indiscriminate application of the rule may well generate disrespect for the law and the administration of justice. Burger, C. J. said: This is not the case as to reliable evidence a pistol, a packet of heroin, counterfeit money, or the body of a murder victim-which may be judicially declared to be the result of an 'unreasonable' search. The reliability of such evidence is beyond question: its probative value is certain.

20. Before the decision in Stone v: Powell was rendered Kaufman's case (1969) 394 US 217 held the field. The discussion in that case as to the scope of federal habeas corpus rested on the view that the effectuation of the Fourth Amendment, as applied to the States through the Fourteenth Amendment, required the granting of habeas corpus relief when a prisoner has been convicted in Slate court on the basis of evidence obtained in an illegal search or seizure. In Mapp v. Ohio (1961) 367 US 643 it was held that such evidence should be excluded even in Slate trials. In that case, the Supreme Court announced that the constitutional rights protected by the Fourth and Fourteenth Amendments would be enforced by the same sanction--neither Slate nor Federal courts would be allowed to use evidence obtained by an unreasonable search and seizure. In the recent case, Stone v. Powell the Supreme Court went back on the majority view in Kaufman's case and accepted the minority view of Justice Black, who observed thus:

Ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty.

The Supreme Court of the United States has now held:

Application of the rule thus deflects the truthfinding process and often frees the guilty The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty delendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice.

The Supreme Court concluded that when an opportunity for full and fair litigation had been provided for, a State prisoner could not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional serach or seizure was introduced at his trial.

21. We have dealt with at some length, the recent decision of the Supreme Court of the United States in Stone v. Powell to show that even in spite of the Fourth Amendment, which guarantees the right of the people to be secure in their persons, houses, papers etc., the Court has finally held that the evidence, secured in an illegal search cannot altogether be ignored. The position in India, where there is no fundamental right as the Fourth Amendment, is stronger for non-exclusion of the evidence obtained during an illegal search.

22. Before leaving the above decision of the Supreme Court of the United States, it will be useful to refer to another aspect, namely, the difference between the search and seizure of a man's private books, papers etc., and search and seizure of stolen or forfeited goods possession of which is illegal and improper.

23. After quoting a passage from the decision in Boyd v. United States (1886) 116 US 616 (referred to in M. P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) Burger C. J., observed that in Weeks v. United States (1914) 232 US 383 the Court emphasized that the Government had no right to keep a person's private papers and that the Court noted that the case did not involve 'burglar's tools or other proofs of guilt'. The learned Chief Justice commented thus:

From this origin, the exclusionary rule has been changed in focus entirely. It is now used almost exclusively to exclude from evidence articles which are unlawful to be possessed or tools and instruments of crime. Unless it can be rationally thought that the Framers considered it essential to protect the liberties of the people to hold that which it is unlawful to possess, then it becomes clear that our constitutional course has taken a most bizarre track.

The observations of Burger C. J., in concluding his judgment are worth quoting here:

From its genesis in the desire to protect private papers, the exclusionary rule has now been curried to the point of potentially excluding from evidence the traditional corpus delicti in a murder or kidnapping case Expansion of the reach of the exclusionary rule has brought Cardoso's grim prophecy in People v. Defore (1926) 242 N. Y. 12 : (1926) 150 N. E. 585, nearer to fulfillment: 'A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed, and the murderer goes free.

These observations throw considerable light in deciding the question at issue. The decision of the Supreme Court in Board of Revenue, Madras v. R.S. Jhaver : [1968]1SCR148 related to a search by the Sales Tax authorities for determining the proper fax payable. The papers that were sought to be searched were the private papers and were entitled to protection. But, in the case before us, possession of paddy itself is an offence and the protection given to the possession of private papers can never be extended to possession of articles, which are by themselves illegal or contrary to law.

24. On the facts of this case, there can be no doubt that the interests of the public require that on the pretext of an individual's right, the proceedings which are envisaged under the Tamil Nadu Faddy and Rice Dealers (Licensing Regulation and Disposal of Stocks) Order cannot be stifled. In Emperor v. Nazir Ahmad the Privy Council has observed that it is of utmost importance that the judiciary should not interfere with the police matters which are within their province and to which the law imposes on them the duty to enquire. It is the bounden duty of the authorities to investigate the offences with which the persons are charged and proceed in accordance with law. A writ of mandamus is totally out of place for it neither compels the performance of the obligatory duties imposed by law on the public servant, nor restrains the action taken by the officer without the authority of law. On the other hand, the effect of a grant of a Writ of mandamus directing the return of the goods seized restrains the public servant from performance of duties imposed on him by law thus stifling the functioning of the normal course of justice.

25. We are not aware of any authority binding on us to substantiate the plea that when there is some irregularity in the search which led to recovery of some articles, the possession of which itself is an offence, the search should be considered as illegal and the property seized which is the subject matter of the crime, should be directed to be returned. We, therefore hold that the decisions of Ramaprasada Rao, J., in Mangudi v. State of Tamil Nadu : (1971)2MLJ27 and in Sundaram and Co. v. State of Tamil Nadu 1972 1 MLJ 42 : AIR 1972 Mad 313 and the decision of Ismail, J. in K. G. Nataraja Mudaliar v. State of Tamil Nadu (W. P. No. 4883 of 1973 (Mad)) are not correctly decided.

26. It is stated that, in subsequent proceedings, the paddy was ordered to be procured by the Government and that order was quashed by the High Court. It may he, because of intervening circumstances, it will not be possible, at this stage, for the paddy being produced during trial. But we do not see any reason as to why the authorities should be prevented from taking action under the law.

27. In the result, we accept the contention of the State that the order of the learned Judge granting a writ of mandamus is unsustainable and has to be set aside. It is accordingly set aside and W. A. No. 163 of 1975 is allowed with costs, Rs. 250/- counsel's fee.

28. On the same view, W. A. Nos. 282, 287, 307 and 316 of 1975 are also allowed with costs, Counsel's lee Rs. 250/- one set.

29. In W. A. No. 202 of 1975, it is stated that the District Supply Officer himself took a lenient view taking into account the explanation given by the dealer and directed a sale to the Tamil Nadu Civil Supplies Corporation at Rs. 114.25 per quintal of rice. On the merits it was submitted by the learned Counsel for the first Respondent that the sale of paddy was in his own place, that he had no knowledge that the purchaser was from a different district and that therefore he was not guilty of any offence. Taking this plea into account, the paddy seized was not confiscated, but only directed to be sold. The authorities may bear this in mind, if they contemplate any further proceedings against the first Respondent. With these remarks, the order of the learned Judge granting a writ of mandamus is set aside and the writ appeal is allowed. But there will be no order as to costs.


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