Whether illegally collected evidence by police is admissible? – YES

Whether privacy is a constitutionally protected value ?

IN M P Sharma v Satish Chandra,District Magistrate, Delhi (1954) SCR 1077

An investigation was ordered by the Union government under the Companies Act into the affairs of a company which was in liquidation on the ground that it had made an organized attempt to embezzle its funds and to conceal the true state of its affairs from the share-holders and on the allegation that the company had indulged in fraudulent transactions and falsified its records. Offences were registered and search warrants were issued during the course of which, records were seized. The challenge was that the searches violated the fundamental rights of the petitioners under Article 19(1)(f) and Article 20(3) of the Constitution. The former challenge was rejected. The question which this Court addressed was whether there was a contravention of Article 20(3). Article 20(3) mandates that no person accused of an offence shall be compelled to be a witness against himself.

Reliance was placed on a judgment (Boyd v. United States, 116 US 616 (1886) of the US) Supreme Court holding that obtaining incriminating evidence by an illegal search and seizure violates the Fourth and Fifth Amendments of the American Constitution. While tracing the history of Indian legislation, this Court observed that provisions for search
were contained in successive enactments of the Criminal Procedure Code. Justice Jagannadhadas, speaking for the Bench, held that a search or seizure does not infringe the constitutional right guaranteed by Article 20(3) of the Constitution:

“…there is no basis in the Indian law for the assumption that a search
or seizure of a thing or document is in itself to be treated as compelled
production of the same. Indeed a little consideration will show that the
two are essentially different matters for the purpose relevant to the
present discussion. A notice to produce is addressed to the party
concerned and his production in compliance therewith constitutes a
testimonial act by him within the meaning of Article 20(3) as above
explained. But a search warrant is addressed to an officer of the
Government, generally a police officer. Neither the search nor the
seizure are acts of the occupier of the searched premises. They are
acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense.”

Having held that the guarantee against self-incrimination is not offended by a search and seizure, the Court observed that :

“A power of search and seizure is in any system of jurisprudence an 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 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.”

IN District Registrar and Collector, Hyderabad & Anr. v. Canara Bank etc., (2005) 1 SCC 496 at 516, where this Court

“35. The earliest case in India to deal with “privacy”
and “search and seizure” was M.P. Sharma v.
Satish Chandra (1954 SCR 1077) in the context of
Article 19(1)(f) and Article 20(3) of the Constitution
of India. The contention that search and seizure
violated Article 19(1)(f) was rejected, the Court
holding that a mere search by itself did not affect
any right to property, and though seizure affected it,
such effect was only temporary and was a
reasonable restriction on the right. The question
whether search warrants for the seizure of
documents from the accused were unconstitutional
was not gone into. The Court, after referring to the
American authorities, observed that in the US,
because of the language in the Fourth Amendment,
there was a distinction between legal and illegal
searches and seizures and that such a distinction
need not be imported into our Constitution. The
Court opined that a search warrant was addressed
to an officer and not to the accused and did not
violate Article 20(3). In the present discussion the
case is of limited help. In fact, the law as to privacy was developed in later cases by spelling it out from
the right to freedom of speech and expression in
Article 19(1)(a) and the right to “life” in Article 21.” 

The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. [ JUSTICE K S PUTTASWAMY (RETD.), AND ANR.]

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