Andhra Pradesh High Court - Amravati
Gujjula Sreenu, vs The Cid on 21 September, 2020
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
****
WRIT PETITION No.14861 OF 2020
Between:
Gujjula Sreenu, S/o. G. Ramakrishnaiah, aged about 41 years,
Ex-Chairman of A.P. State Weavers Cooperative Society Limited
(APCO), Vijayawada, Ex-President of Dayankhanpalli Handloom
Weavers Cooperative Production and Sale Society (W.No.475),
Khazipeta, YSR Kadapa District, R/o. Teachers Colony Kazipet,
YSR Kadapa District, R/o. Teachers Colony Kazipet,
YSR Kadapa District.
....Petitioner
And
1) The CID, rep. by its Deputy Superintendent of Police,
Regional Office, Tirupati, Chittoor District & 4 others.
...Respondents
DATE OF ORDER PRONOUNCED: 21.09.2020
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
1. Whether Reporters of Local Newspapers
may be allowed to see the order? : Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? : Yes/No
3. Whether His Lordship wish to
see the fair copy of the order? : Yes/No
__________________________
U. DURGA PRASAD RAO, J
2
UDPR, J
WP.No.14861 of 2020
* THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
+ WRIT PETITION No.14861 OF 2020
% 21.09.2020
WRIT PETITION No.14861 OF 2020:
Between:
Gujjula Sreenu, S/o. G. Ramakrishnaiah, aged about 41 years,
Ex-Chairman of A.P. State Weavers Cooperative Society Limited
(APCO), Vijayawada, Ex-President of Dayankhanpalli Handloom
Weavers Cooperative Production and Sale Society (W.No.475),
Khazipeta, YSR Kadapa District, R/o. Teachers Colony Kazipet,
YSR Kadapa District, R/o. Teachers Colony Kazipet,
YSR Kadapa District.
....Petitioner
And
1) The CID, rep. by its Deputy Superintendent of Police,
Regional Office, Tirupati, Chittoor District & 4 others.
...Respondents
! Counsel for Petitioner : Sri Vedula Venkata Ramana
Sri M. Balaga Srinivas.
^ Counsel for Respondents : Government Pleader for Home
< Gist:
> Head Note:
? Cases referred:
1
1965 Crl l J 256 = MANU/SC/0092/1964
2
1987 (2) APLJ (HC) 426 = MANU/AP/0017/1987
3
1980(1) SCC 264 = MANU/SC/0285/1979
4
(1968) 9 GLR 364 = MANU/GJ/0152/1967
5
AIR 2012 SC 2134 = MANU/SC/0409/2012
6
77 ER 194 (1604)
7
All ER Rep 41 = 1765 (19) St.Tr 1030
8
116 US 616 (1886)
9
357 US 301 (1958)
10
MANU/SC/0092/1964 = AIR 1965 SC 1251
11
MANU/MH/0795/2006= 2006 CriLJ 3779
12
MANU/MH/0267/1978 = 1979 CriLJ 71
13
MANU/OR/0397/1985 = 1986 CriLJ 689
14
MANU/TN/0983/2003 = 2004 CriLJ 1288
15
MANU/TN/0026/2008 = 2008 CriLJ 3167
16
MANU/SC/0134/1961 = AIR 1961 SC 1808
17
MANU/SC/0018/1954 = AIR 1954 SC 300
18
MANU/SC/1044/2017 = 2017 (10) SCC 1
19
AIR 1981 SC 746
20
AIR 1967 SC 1836
21
MANU/GJ/0152/1967 = (1968) 9 GLR 364
22
MANU/SC/0205/2002 = AIR 2002 SC 1450
This court made the following :
3
UDPR, J
WP.No.14861 of 2020
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Writ Petition No.14861 of 2020
ORDER:
The petitioner implores for Writ of Mandamus declaring the action of respondents in conducting search/raid/seizure operations at the houses of the petitioner at Khazipet in YSR Kadapa District and Himayathnagar in Hyderabad as violative of interim orders in I.A.No.1 of 2020 in W.P.No.922 of 2020 and illegal and for consequential direction to the respondents to forthwith release all the seized cash and other valuable properties and for a further direction to respondents not to take any coercive action of any nature including conducting searches and seizures again in respect of petitioner's properties.
2. The petitioner was the President of Dayankhanpalli Handloom Weavers Co-operative Society Limited between 2005-06 and 2007-08 which is a primary society under APCO. Later, he became the Chairman of APCO and continued till August, 2019.
(a) While so, the C.I.D on the complaint of one Konda Ramana Reddy, a resident of Proddutur, registered Crime No.1 of 2020 against petitioner and others, on the allegations that the petitioner and other members in conspiracy committed the offences of criminal breach of trust, cheating and forgery and caused loss to the public money and government fund to a tune of Rs.1200 Crores. The petitioner filed W.P.No.922 of 2020 seeking to quash the F.I.R. In I.A.No.1 of 2020, this Court passed interim order directing respondents not to arrest the 4 UDPR, J WP.No.14861 of 2020 petitioner and not to take any coercive steps under the guise of investigation which would infringe his fundamental rights guaranteed under Article 21 of Constitution of India.
(b) While so, the respondents/C.I.D obtained search warrants from I Addl. Judicial Magistrate of I Class, Kadapa and conducted searches over the residential houses of petitioner at Khazipet and Himayathnagar and also two garment godowns of the petitioner and his mother at Khazipet and seized huge cash, gold and silver ornaments and some documents in contravention of the orders in I.A.No.1 of 2020 and the provisions relating to search and seizure.
The alleged offences have nothing to do with the search and seizure operations.
Hence, the writ petition.
3. The 2nd respondent filed counter opposing the writ petition inter alia contending that the search and seizure operations were conducted after obtaining search warrants from the Judicial Magistrate and by following due procedure. It is contended that the order in I.A.No.1 of 2020 was not violated as the said order did not interdict the respondents from proceeding with the investigation. As per the F.I.R, the accused conspired together and misappropriated about Rs.1200 Crores of various Co-operative Societies over ten years and established benami and bogus Weaver's Societies in Kadapa District. The ill-gotten money was fraudulently diverted for their personal gain. The petitioner has no legal sources to amass huge amount and properties seized. Since huge public money was misappropriated, the 5 UDPR, J WP.No.14861 of 2020 respondents obtained warrants and conducted searches and seized the available incriminatory material and properties. Hence, the writ petition is not maintainable.
4. Heard the arguments of the learned Senior Counsel Sri Vedula Venkataramana representing Sri M.Balaga Srinivas, counsel for petitioner, and learned Government Pleader for Home representing the respondents.
5. Severely remonstrating the search and seizure operations conducted by the respondent officers, learned Senior Counsel Sri Vedula Venkataramana would firstly argue that both the warrant and consequential acts were in utter disdain to the order dated 17.01.2020 in I.A.No.1/2020 in W.P.No.922/2020 wherein this Court while granting interim direction to the present respondents not to arrest the petitioner in connection with Cr.No.1/2020, further directed not to take any coercive steps under the guise of investigation which could infringe the fundamental rights guaranteed under the provisions of the Article 21 of the Constitution of India. Despite, he would lament, without informing about the said order, the respondents obtained search warrant and conducted searches at different places belonging to the petitioner and his family members and seized cash, gold and silver ornaments and articles and bank passbooks and cheque books. Hence, such highhanded acts are violative of personal liberty and right of privacy enshrined in Article 21 of the Constitution besides being contemptuous. He would also incidentally argue that procuring of the self-incriminating material from the possession of the 6 UDPR, J WP.No.14861 of 2020 accused also amounts to violation of Article 20(3) of the Constitution. He placed reliance on Shyamlal Mohanlal v. State of Gujarat1 and Dhulipala Veeraiah Chowdary v. Kurra Veeraiah2.
Secondly, he argued that learned Magistrate has not passed any reasoned order except issuing warrant on mere asking. He would contend that the Magistrate ought to have given cogent reasons for his satisfaction to issue search warrant. He relied upon the citation V.S.Kuttan Pillai v. Ramakrishnan3 to contend that clear application of mind and according reasons is the hallmark for issuing a search warrant. He also relied upon the judgment in The New Swadesi Mills of Ahmedabad Ltd. V. S.K.Rattan4.
Thirdly, he argued that having regard to the nature of offences i.e., Section 420, 406, 409, 468 & 471 and 120-B r/w 34 IPC attributed in Cr.No.1/2020, seizure of cash, gold, silver, passbooks and cheque books is of no relevancy to establish the crime. Further, Warrants were sought and issued for search and seizure of incriminating documents and records only and thereby the seizure of other valuables per se is unjust and illegal. In this regard he cited a decision in M.T.Enrica Lexie v. Doramma5. He further argued, without obtaining any warrant the police have searched the petitioner's another house situated at Himayatnagar, Hyderabad and seized valuables. Such an invidious act is highly reprehensible for, 1 1965 Crl l J 256 = MANU/SC/0092/1964 2 1987 (2) APLJ (HC) 426 = MANU/AP/0017/1987 3 1980(1) SCC 264 = MANU/SC/0285/1979 4 (1968) 9 GLR 364 = MANU/GJ/0152/1967 5 AIR 2012 SC 2134 = MANU/SC/0409/2012 7 UDPR, J WP.No.14861 of 2020 the search was without warrant and the place of search is beyond the jurisdiction of learned Magistrate. He thus prayed to allow the writ petition.
6. Per contra, learned Government Pleader for Home argued that there is no violation of order in I.A.No.1 of 2020, for, the said order prohibited the respondent/Police only from arresting the petitioner and taking any coercive steps infringing his fundamental rights guaranteed under Article 21 of Constitution of India. He strenuously argued that obtaining warrant and conducting search and seizure would by no means amount to invading the life and personal liberty of the petitioner. It is only for furtherance of investigation and for collection of incriminating material which will advance the cause of justice, that the respondent/Police have conducted search and seizure by following due procedure after obtaining the warrant.
Nextly, refuting the contention of the petitioner that the seizure of gold, silver and cash is not relevant to establish the guilt of the petitioner, learned Government Pleader argued that the huge cash, gold and silver ornaments were acquired by the petitioner with the ill-gotten money by misappropriating the funds of the Co-operative Society, as otherwise, he had no other lawful resources to amass wealth of such magnitude. Therefore, the seized cash and valuable articles will certainly help Prosecution to establish his complicity. He would request that as the investigation is at the peripheral stage this Court may not make any observations on the relevancy or otherwise of the seized property which may have bearing on the investigation. 8
UDPR, J WP.No.14861 of 2020 He further argued that if the petitioner is aggrieved by the seizure of the properties he can have the recourse by filing an appropriate application under relevant statute before the Trial Court and in view of availability of alternative and efficacious remedy, this writ petition is not maintainable.
Refuting the petitioner's contention that the search warrants were issued without passing any speaking order and assigning reasons, learned Government Pleader argued that having regard to the misappropriation of huge amount running into crores, on the request of the respondent/Police that a general search in the requisition mentioned places belonging to the petitioner will help unearth incriminating evidence, the Court was satisfied and accordingly, issued search warrants under Section 93 of Cr.P.C and the said order is perfectly legal and valid. He, however fairly admitted that the Police have not obtained search warrants to search petitioner's house situated at Himayathnagar in Hyderabad and the respondents will abide by Court's order in that regard. He thus prayed to dismiss the writ petition.
7. The following points emerge for consideration.
(1) Whether the search and seizure in this case are, violative of:
(a)Order dated 17.01.2020 in I.A.No.1 of 2020 in W.P.No.922 of 2020 and thereby Article 21 of Constitution of India?
(b) Article 20(3) of Constitution of India?
(c) Right of Privacy of the petitioner?
(2) If not, whether the search and seizure are otherwise hit by
(a) Non-manifestation of cogent reasons for issuance of 9 UDPR, J WP.No.14861 of 2020 warrants by the Magistrate?
(b) Irrelevancy of the property seized with the offences alleged in FIR?
(c) Jurisdictional transcendence?
8. Point No.1: The sub-points categorized in the main point are the attributes of violation of different rights of the petitioner inflicted through the search and seizure in this case. Before resolving whether they did so, it is interesting to know the historical background involving the searches and seizures and the clamour of infringement of common law rights and constitutional rights in nutshell.
a) Since the operation of search and seizure involves varied degrees of intrusion of personal liberty and property of an individual, the laws of different nations viewed at it with all seriousness. The common law in Medieval period regarded "An Englishman's home as his castle" and attached sanctity to the privacy of a man's home and even refused to recognize the power of search and seizure. Perhaps, the foremost common law case on protection of privacy is of Peter Semayne vs. Richard Gresham6. Gresham and Beresford were joint tenants of a house in England where Beresford kept his goods and later Semayne brought a suit for money against him and succeeded but in the meanwhile Beresford died. His goods were in the tenement where Gresham continued. The Sheriff of London went to the said house to execute the warrant and seize the goods but Gresham shut the doors before the Sheriff could enter and would not allow him access. As a result, Semayne sued Gresham for obstruction of execution and 6 77 ER 194 (1604) 10 UDPR, J WP.No.14861 of 2020 the suit was dismissed by majority of 2:1. The majority judges upheld the privacy of the defendant observing that before entering of Sheriff it was lawful for him to shut the door unless it was upon the Queen's suit for the contempt of the party. The minority view was that because by that means, justice was hindered. Later, Edward Coke, the Jurist and Judge in his book "The Institute of the Law of England"
(1628) carved out from the Semayne's judgment, the phrase "the house of everyone is to him is his castle and fortress, as well for his defence against injury and violence, as for his repose".
b) In John Entick v. Nathan Carrington7, on 11.11.1762 the King's messengers entered the home of the plaintiff John Entick, a Writer, with force and arms, broke open locks and doors, searched and seized some charts and pamphlets on the allegation of his disseminating seditious writings. In the trial before Lord Camden, CJ, the defence of the King's messengers was that they were acting on the warrant of Lord Halifax, the Secretary of State. However, Camden held, Halifax had no right under statute or under precedent to issue such warrant and allowed Entick's claim. In his famous passage, Camden stated__ "................ By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of 7 All ER Rep 41 = 1765 (19) St.Tr 1030 11 UDPR, J WP.No.14861 of 2020 the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."
c) That was the outlook of 17th and 18th century in England. In this backdrop and against the abuse of 'writ of assistance' which is a type of general search warrant prevailed in British Regime, in America the IV-Amendment was introduced by James Madison, the father of American Constitution in 1789 which became part of Constitution in 1792. The IV-Amendment reads thus.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (emphasis supplied).
8
d) In Boyd vs. United States , the question before the U.S Supreme Court was whether compulsory production of a person's private papers to be used in evidence against him in a judicial proceeding, is an unreasonable search and seizure within the meaning of the IV and V Amendments of the Constitution. It was held:
"...... and any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime or to forfeit his property, is contrary to the principles of a free government.... It may suit the purposes of a despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom."
e) In Miller vs. United States9, in the District of Columbia, Officers without a warrant knocked on the door of petitioner's apartment and upon his enquiry they replied as 'Police'. The petitioner opened the door but quickly tried to close it whereupon the Officers broke the door entered, arrested the petitioner and seized 8 116 US 616 (1886) 9 357 US 301 (1958) 12 UDPR, J WP.No.14861 of 2020 some bills which were later admitted as an evidence in petitioner's trial under Narcotic laws and later he was convicted. The validity of his arrest without warrant for violation of federal law by local Police Officers was challenged and deprecated by the Supreme Court. In this case, the U.S. Supreme Court with approval, quoted William Pitt saying in the Parliament debate thus.
"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake, the wind may blow through it, the storms may enter, the rain may enter but the king of England cannot enter. All his forces dare not cross the threshold of the ruined tenement."
9. So far so good with regard to the judicial pronouncements on the right of personal liberty, privacy against the unreasonable searches and seizures under the guise of 'writ of assistance'. However, with the passage of time, the crimes have increased abnormally in the entire globe necessitating the Investigating Agencies to invariably adopt search and seizure operations for exhuming the incriminating material and evidence to bring the perpetrators of the crime to book and safeguard the interest of the society. There occurred a clash between the societal interest and individual rights. A situation had come that if the Officer had unleashed unauthorized power to ignore personal liberties, the product was Police State; if he was barred from any interference with private rights, the result was criminal anarchy. Therefore, to strike a balance and to establish rule of law, it became inevitable that the individual relinquishes a portion of his personal prerogatives through the legislative process in order to see that himself and his fellow citizens are free from criminal activities. 13
UDPR, J WP.No.14861 of 2020
10. India is concerned, being enriched by the above jurisprudence and imbibing the spirit of IV and V Amendments of U.S. Constitution, the framers enacted the Indian Constitution, according the status of fundamental right to the doctrines of life, personal liberty, right against self incrimination etc., and at the same time, prescribing procedural checks and balances in the concerned statutes for undertaking the search and seizure operations.
11. Thus, we will find in Chapter-VII of Criminal Procedure Code, 1973 (for short, "Cr.P.C, 1973"), the provisions for search and seizure.
Section 91 of Cr.P.C deals with summoning of any person by any Court or Officer-In-Charge of a Police Station to produce any document or other thing which is necessary for the purpose of investigation, enquiry, trial or other proceedings under Cr.P.C. It has been held in a catena of decisions that the word 'person' mentioned in this section does not refer to "accused" and therefore, the Court or Police cannot summon the accused himself to produce any incriminating document or thing which, if allowed, would amount to violation of Article 20(3) of Constitution of India vide (i) Shyamlal Mohanlal v. State of Gujarat10; (ii) Manjula Ramlal Barot v. Iswarlal P. Barot11; (iii) Vinayak Purushottam Kalantre v. Vikram Balwantrao Deshmukh12; (iv) Bimal Kanti Ghosh v. 10 MANU/SC/0092/1964 = AIR 1965 SC 1251 11 MANU/MH/0795/2006= 2006 CriLJ 3779 12 MANU/MH/0267/1978 = 1979 CriLJ 71 14 UDPR, J WP.No.14861 of 2020 M. Chandrasekhar Rao13; (v) M. Kalanithi Maran v. State14 and
(vi) H. Mohamed Ibrahim Kaleel v. State15.
However, in State of Bombay v. Kathi Kalu Oghad16, eleven judges Bench of the Apex Court inter alia held that giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression to be a witness and such acts do not constitute violation of Article 20(3).
12. Section 92 of Cr.P.C speaks of the procedure relating to obtaining any document, parcel or thing in the custody of a postal or telegraphs authority, which is required for the purpose of any investigation, enquiry, trial or other proceedings under Cr.P.C. This section empowers the District Magistrate, Chief Judicial Magistrate, Court of Sessions or High Court to require the postal or telegraph authority to deliver the document, parcel or other thing.
13. Then Section 93 of Cr.P.C speaks about issuance of search warrants in certain circumstances as follows.
93(1)(a):- Where the Court has reason to believe that a person to whom a summons or order under Section 91 of Cr.P.C or a requisition under Section 92(1) has been, or might be addressed, will not or would not produce the document or thing as required by such summons or requisition, or
(b) Where such document or thing is not known to the Court to be in the possession of any person, or
(c) Where the Court considers that the purposes of any inquiry, trial or other proceeding under the Code will be served by a general search or inspection, 13 MANU/OR/0397/1985 = 1986 CriLJ 689 14 MANU/TN/0983/2003 = 2004 CriLJ 1288 15 MANU/TN/0026/2008 = 2008 CriLJ 3167 16 MANU/SC/0134/1961 = AIR 1961 SC 1808 15 UDPR, J WP.No.14861 of 2020 it may issue a search-warrant and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.
a) The constitutional validity of searches under this provision was challenged on the ground that they militate against Article 20(3) and Article 19(1)(f) of Constitution of India in M.P. Sharma v. Satish Chandra17. In that case M/s. Dalmia Jain Airways Limited went into liquidation. On the complaint of the Registrar of the Joint Stock Companies, the Delhi Special Police Establishment registered the crime and filed an application under Section 96 of the Code of Criminal Procedure, 1898 (Section 93 of Cr.P.C, 1973) before the District Magistrate, Delhi and obtained search warrants for search of documents in as many as 34 places belonging to M/s. Dalmia Jain Airways Limited and also its group of companies. The writ petitioner challenged the search warrant as illegal and sought for return of the documents seized. The main question that fell for consideration before the Apex Court was whether the searches infringed fundamental rights of the petitioner under the Articles 20(3) and 19(1)(f) of the Constitution.
b) Article 19(1)(f) declares the right of all citizens to acquire, hold and dispose of property subject to the operation of any existing or future law in so far as it imposes reasonable restrictions, on exercise of any of the rights conferred thereby, in the interests of general public. In view of the nature of right as aforesaid, the Apex Court held a search by itself is not a violation of Article 19(1)(f). 17
MANU/SC/0018/1954 = AIR 1954 SC 300 16 UDPR, J WP.No.14861 of 2020
c) Then the Apex Court considered the substantial question whether searches and seizures infringed Article 20(3). The said Article reads thus:
"No person accused of any offence shall be compelled to be a witness against himself".
The Apex Court considered the judgments in Boyd v. United States (8 supra) and John Entick v. Nathan Carrington (7 supra) and observed that they have no application. It was argued that search and seizure of a thing or a document is in itself to be treated as compelled production of the same and hence, hit by Article 20(3). Repelling such argument, the Supreme Court observed that a "notice to produce" will be addressed to the party concerned and his production in compliance therewith constitutes a testimonial act by him within the meaning of Article 20(3), however, "search warrant" is addressed to an Officer of the Government, generally a Police Officer, and hence, they two are essentially different matters for the present discussion. It observed that neither the search nor the seizure are the acts of the occupier of the searched premises, but they are the acts of another to whom he is obliged to submit and therefore, searches are not testimonial acts in any sense. While observing that issuance of search warrants under Section 96 of Cr.P.C, 1898 does not infringe upon constitutional right under Article 20(3), the Apex Court held thus:
"24. 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.17
UDPR, J WP.No.14861 of 2020 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 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 section 165 of the Criminal Procedure Code). 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 authority for search, no circumvention thereby of the fundamental right is to be assumed."
d) It must be quickly added that the Apex Court in its judgment in Justice K.S. Puttaswamy v. Union of India18 while holding that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution, overruled the decision in M.P. Sharma v. Satish Chandra (17 supra) to the extent of its holding that the right to privacy was not protected by the constitution. Sans that, the other part of the decision in M.P.Sharma (17 supra) to the effect that searches and seizures do not offend the fundamental right under Article 20(3) was not disturbed. It is also to be noted that in Justice K.S. Puttaswamy v. Union of India (18 supra) the Apex Court has not specifically held that the searches and seizures will in any way offend the right of privacy enshrined under Article 21.
e) In V.S.Kuttan Pillai (3 supra) the Apex Court held that a search warrant can be issued under Section 93 (1)(b) Cr.P.C., 1973 for the search of a document or a thing to be recovered from a certain place, but it is not known whether that document or thing is in 18 MANU/SC/1044/2017 = 2017 (10) SCC 1 18 UDPR, J WP.No.14861 of 2020 possession of any particular person. Similarly, a general search warrant can be issued under Section 93(1)(c) Cr.P.C., 1973 when the Court is unaware of not only the person but even the place where the documents may be found and that a general search at that instance was necessary. In that case, the search warrant was construed to have been issued under Section 93(1)(c) Cr.P.C. The Apex Court held that search and seizure pursuant to said warrant will not offend Article 20(3) of the Constitution. It was held thus:
"14. Section 93(1)(c) of the new Code comprehends a situation where the Court may issue a search warrant when it considers that the purpose of an inquiry, trial or other proceeding under the Code will be served by a general search or inspection to search, seize and produce the documents mentioned in the list. When such a general search warrant is issued, in execution of it the premises even in possession of the accused can be searched and documents found therein can be seized irrespective of the fact that the documents may contain some statement made by the accused upon his personal knowledge and which when proved may have the tendency to incriminate the accused. However, such a search and seizure pursuant to a search warrant issued under Section 93(1)(c) will not have even the remotest tendency to compel the accused to incriminate himself. He is expected to do nothing. He is not required to participate in the search. He may remain a passive spectator. xxxxxxxxxx would not be violative of the constitutional guarantee enshrined in Article 20(3).
14. Then Section 94 deals with issue of warrant by District Magistrate, Sub-Divisional Magistrate or Magistrate of First Class to search any place used for deposit or sale of stolen property, any objectionable articles etc. Section 95 deals with issuing search warrant by a Magistrate authorising a police officer to conduct search in a premises which contain the newspapers, books or documents forfeited by the Government. Section 97 deals with the power of a District Magistrate, Sub-Divisional Magistrate or Magistrate of First 19 UDPR, J WP.No.14861 of 2020 Class to issue search warrant to search for a person who is confined and produce before him. Section 165 Cr.P.C. authorizes a police officer to conduct search for any thing which is necessary for the purpose of his investigation without the warrant issued by the concerned Magistrate. Such a search has to be undertaken by the police in exigent circumstances mentioned in Section 165 Cr.P.C.
15. With the above jurisprudence, it has now to be seen whether the search and seizure in the present case have violated:-
(a) Order in I.A.No.1/2020 in W.P.No.922 of 2020: The petitioner filed .WP.No.922/2020 seeking a mandamus to quash the FIR No.1/2020 registered by CID Police. In I.ANo.1/2020 a learned single Judge of this Court passed an order dated 17.01.2020 directing the respondents not to arrest the petitioner in connection with Cr.No.1/2020 and not to take any coercive steps under the guise of investigation which could infringe the fundamental right guaranteed under the provisions of Article 21 of the Constitution. In the light of the said order, the petitioner impugnes the search and seizure operations as being violative of the said order and also Article 21.
The above order is two fold. Firstly, the respondent police were directed not to arrest the petitioner in Cr.No.1/2020, which is not the grievance of the petitioner. The second direction is that the respondent shall not take any coercive steps under the guise of investigation to infringe fundamental right guaranteed under Article 21. This Article lays down that no person shall be deprived of 20 UDPR, J WP.No.14861 of 2020 his life or personal liberty except according to the procedure established by law. It is true that the dimensions of life and personal liberty have been expanded to new horizons by the judicial pronouncements. For instance, it was held that right to life means not a mere survival or animal existence but live with dignity and all that goes with it, such as, basic necessities of life like nutrition, clothing, shelter etc. (vide Francis Coralie Mullin v. The Administrator, Union Territory of Delhi19). So also right to personal liberty primarily means freedom from physical restraint by incarceration or otherwise. It also includes right of locomotion, right to travel abroad etc. (vide Satwant Singh Sawhni v. Assistant Passport Officer20). Even if the aforesaid vibrant facets of life and personal liberty enveloped in Article 21 are taken into consideration, it by no means can be harped that the search and seizure operations conducted at the present instance on the judicial order of a Magistrate, in any way violated the order of this Court and consequently Article 21. It must be noted that Article 21, for that matter any fundamental right, is not an unbridled right but circumscribed by certain limitations meaning thereby, the life and personal liberty are subject to procedure established by law. Hence, this Court's order in I.ANo.1/2020 cannot be construed to shun the respondent police from proceeding with investigation. What all protected is the life and personal liberty of the petitioner against the manoeuvres in the cloak of investigation. 19
AIR 1981 SC 746 20 AIR 1967 SC 1836 21 UDPR, J WP.No.14861 of 2020 Hence, I find no violation of order in I.A.No.1/2020 or for that matter Article 21.
(b) Violation of Article 20(3) of Constitution: Article 20(3) lays down that no person accused of any offence shall be compelled to be a witness against himself. It is the contention of the petitioner that search and seizure operations involve procuration of documents, records and properties from the accused which tend to self incrimination in terms of Article 20(3). Needless to emphasize that this issue is no more res integra. In M.P.Sharma's case (17 supra) the Supreme Court has extensively dealt with it and observed that issuance of search warrant does not infringe Article 20(3). Hence, I do not find any substance in the said contention.
In Shyamlal Mohanlal (1 supra) relied upon by the petitioner, it was held the accused cannot be directed to produce document or other thing under Section 94(1) Cr.P.C., 1898 (Section 91 of Cr.P.C., 1973) which incriminates him as it hits Article 20(3) of Constitution. This decision is of no avail to the petitioner as that is not the case here.
Dhulipala Veeraiah Chowdary (2 supra) is also similar case wherein in a cheating case on the request of the complainant, learned Magistrate issued summons to the accused under Section 91 Cr.P.C., 1973 to produce the car involved in that case. When the said order is challenged by the accused, the High Court of A.P. held, the Court was not entitled to issue summons or warrant against the accused for 22 UDPR, J WP.No.14861 of 2020 production of a document or any thing that is in his custody which is incriminatory against him. Needless to emphasise this decision has no application to the case on hand.
(c) Violation of right of privacy : The petitioner cannot claim violation of right of privacy also, inasmuch as, in Puttuswamy, though the Apex Court held that right of privacy is a constitutional right under Article 21, still it has not observed that lawful search and seizure would violate the said right.
16. Point No.2: It has now to be seen whether the search and seizure are otherwise hit by:
(a) non-manifestation of reasons for issuing warrant by the Magistrate : One of the arguments is that the Magistrate issued warrant on mere asking but without recording reasons which is prime essential. In V.S.Kuttan Pillai (3 supra) the Apex Court observed that the Magistrate has to give reasons which swayed his discretion to issue warrant. In this context, when perused the record, the FIR allegations are that the petitioner and other accused in pursuance of a conspiracy, committed criminal breach of trust and cheating to a tune of Rs.1200 Crores of the public money during the span of ten years by establishing Benami Handloom Weavers Societies and by diverting the funds released for the benefit of weaker sections of Weavers Societies. Consequently Cr.No.1/2020 was registered by CID police.
During the course of investigation, requisition was filed before learned Additional Junior Civil Judge, Kadapa stating that searches 23 UDPR, J WP.No.14861 of 2020 have to be conducted in the requisition mentioned six places to seize the incriminating documents and other records pertaining to Dayankhan Palli Weakers Cooperative Production and Sale Society Limited. The order in Crl.M.No.1405/2020 shows that the learned Magistrate having perused the FIR and other relevant material expressed his satisfaction to issue search warrants as the places of searches are located within his jurisdiction and thus issued search warrants under Section 93 of Cr.P.C., 1973. The impugned order shows that upon perusal of the relevant material only the Magistrate was pleased to issue the search warrants. As stated supra, in the FIR a grave allegation of misappropriation of huge amount is made and upon perusal of FIR, it appears the Magistrate was satisfied that incriminating materials have to be unearthed and accordingly, issued a general search warrants. I find no manifest illegality or irregularity in the order impugned.
17. (b) Irrelevancy of the property seized with the offences alleged in FIR : It is argued that the offences alleged against the petitioner and others are mainly the criminal breach of trust and cheating. In that view, the police filed requisition to issue warrants to search and seize only the documents and other records pertaining to the Dayankhan Palli Weavers Cooperative Society and the warrants were also issued for that purpose. However, without seizing any records and documents if found during search, the respondent police have seized cash, gold and silver ornaments and FDRs and passbooks 24 UDPR, J WP.No.14861 of 2020 which have nothing to do with the alleged offence. Hence, on that count the search and seizure became illegal.
Per contra, the contention of the learned Government Pleader is that the raid party, apart from some agreements, Xerox copy of the documents, letter pads etc. also seized gold & silver ornaments and cash. He would argue that those valuable properties were amassed by the accused with the ill-gotten money and therefore, the prosecution believes to establish the guilt of the accused with the help of not only the documents seized but also those valuable properties. His further contention is that since the investigation of the crime is at the threshold, this Court may not make any observation with regard to the nexus of those valuable properties with the crime. He would further submit that the petitioner can move an application before the Magistrate seeking interim custody of those valuables, if he is so advised.
I find some force in the submission of the learned Government Pleader. It is true that the impugned order of the Magistrate shows that requisition was made for search warrants to trace/seize the incriminating documents and records pertaining to the crime. The Court passed the order permitting the investigating agency to conduct searches in the order mentioned places and if any alleged incriminating material was found, to produce the same before the Court. It appears the raid party has seized, apart from some documents the other valuable properties also. Admittedly, the investigation is in the peripheral stage. Therefore, it is too early to 25 UDPR, J WP.No.14861 of 2020 predicate whether the valuable properties seized during the course of searches have any connection with the alleged offence or not and whether the same were acquired by the accused with the ill-gotten money. This aspect has to be decided after trial. Therefore, this Court declines to make any comment on the said aspect. However, the petitioner is at liberty to move the trial Court by an appropriate application under relevant statute seeking interim custody and the trial Court shall pass an appropriate order thereof in accordance with law.
18. (c) Jurisdictional Transcendence: It is the vehement argument of the learned Senior Counsel that the respondent police without obtaining any search warrant from the Magistrate, conducted search at the house of the petitioner situated at Himayatnagar and seized cash, gold and silver ornaments and other documents and hence, the said search and seizure are per se illegal.
Admittedly, in this case apart from the places mentioned in the impugned order, the respondent police have conducted search and seizure operations in one of the houses of the petitioner i.e., Flat No.605, Legends Sidhi Apartments, Road No.5, Himayathnagar, Hyderabad and seized cash, gold and silver ornaments and some files. It is a further admitted fact that learned I Additional Junior Civil Judge, Kadapa has no territorial jurisdiction to try the offences committed at Hyderabad. However, the academic issue is whether the learned Magistrate has no power to issue search warrants to conduct 26 UDPR, J WP.No.14861 of 2020 searches in the places beyond his jurisdiction. In this regard, Section 99 of Cr.P.C, 1973 can be profitably extracted:
99: The provisions of Sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as may be, apply to all search warrants issued under section 93, section 94, section 95 or section 97.
Then Section 77, 78 & 79 Cr.P.C., 1973 are germane for consideration and they read thus:
77: A warrant of arrest may be executed at any place in India.
78. (1) When a warrant is to be executed outside the local jurisdiction of the Court issuing it, such Court may, instead of directing the warrant to a police officer within its jurisdiction, forward it by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed; and the Executive Magistrate or District Superintendent or Commissioner shall endorse his name thereon, and if practicable, cause it to be executed in the manner hereinbefore provided.
(2) The Court issuing a warrant under sub- section (1) shall forward, along with the warrant, the substance of the information against the person to be arrested together with such documents, if any, as may be sufficient to enable the Court acting under section 81 to decide whether bail should or should not be granted to the person.
79. (1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer-in-charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed.
(2) Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute the same, and the local police shall, if so required, assist such officer in executing such warrant.
(3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or police officer within whose local jurisdiction the warrant is to be executed will prevent such execution, the police officer to whom it is directed may execute the same without such endorsement in any place beyond the local jurisdiction of the Court which issued it. Therefore, the above provisions would cumulatively show that like a warrant of arrest, a warrant of search issued by a Magistrate can 27 UDPR, J WP.No.14861 of 2020 be executed any place in India. Such execution of warrant is not restricted to the local limits of the jurisdiction of the Magistrate issuing the warrant. However, for convenience sake the procedure contemplated under Section 78 or 79 may be adopted depending upon the exigencies. Be that it may, in the instant case, the respondent police have not sought for the search warrant for effecting search and seizure in the house at Himayathnagar, Hyderabad. Therefore, the above provisions have no application.
19. Then the option left for the respondent police is the one under Section 166Cr.P.C., 1973. The said section reads thus:
166. (1) An officer-in-charge of a police station or a police officer not being below the rank of sub-inspector making an investigation may require an officer-in-charge of another police station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station.
(2) Such officer, on being so required, shall proceed according to the provisions of section 165, and shall forward the thing found, if any, to the officer at whose request the search was made.
(3) Whenever there is reason to believe that the delay occasioned by requiring an officer-in-charge of another police station to cause a search to be made under sub-section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer-in-charge of a police station or a police officer making any investigation under this Chapter to search, or cause to be searched, any place in the limits of another police station in accordance with the provisions of section 165, as if such place were within the limits of his own police station.
(4) Any officer conducting a search under sub-section (3) shall forthwith send notice of the search to the officer-in-charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under Section 100, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sub- sections (1) and (3) of section 165.
(5) The owner or occupier of the place searched shall, on application, be furnished free of cost with a copy of any record sent to the Magistrate under sub- section (4).
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UDPR, J WP.No.14861 of 2020 Sub-section (3) & (4) lend power in certain circumstances to an Officer-in-charge of one police station to search or cause to be searched places within the local limits of another police station. Thus, an investigating officer can resort the power under Section 165 and 166 Cr.P.C. without obtaining search warrants from the concerned jurisdictional Magistrate. However, in order to exercise this power, the procedure contemplated in the above sections must be strictly followed vide The New Swadesi Mills of Ahmedabad Ltd. Vs. S.K. Rattan and others21. In this case, the respondent police have not produced any material before this Court as to what exigent circumstances were prevailing which prevented them from obtaining a regular search warrant from the Additional Junior Civil Judge, Kadapa as they did in respect of six other places. They have also not placed any material showing that the concerned investigating officer has made a record in writing the grounds of his belief as required under Section 165 Cr.P.C. Therefore, this Court is constrained to hold that there is a procedural irregularity. The question is whether by virtue of this irregularity the search and seizure operations conducted at Flat No.605, Legends Sidhi Apartments, Road No.5, Himayathnagar, Hyderabad are illegal and the materials seized cannot be used in evidence in trial. This aspect has been dealt with by the Hon'ble Apex Court in Khet Singh v. Union of India22 where in it was held thus:
21
MANU/GJ/0152/1967 = (1968) 9 GLR 364 22 MANU/SC/0205/2002 = AIR 2002 SC 1450 29 UDPR, J WP.No.14861 of 2020 "6. Section 51 of the NDPS Act provides that the provisions of the Code of Criminal Procedure, 1973 shall apply in respect of warrants, arrests, searches and seizure in so far as they are not inconsistent with the provisions of the NDPS Act. Section 165 of the Code confers powers on the police to search any place without search warrant. 'Place' has been defined in Section 2(p) of the Code as one which includes house, building, tent, vehicle and vessel. Section 165 of the Code empowers a police officer making an investigation to conduct search without a warrant if he has reasonable grounds for believing that anything necessary for the purpose of an investigation into any offence may be found and that he is of the opinion that undue delay may frustrate the object of the search. Further, Section 100 of the Code lays down the detailed procedure and guidelines regarding the manner in which search is to be conducted of a closed place.
7. In the present case, the learned Counsel for the appellant contended that the police officer did not prepare the seizure mahazar at the spot and thereby violated the provisions of law.
16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the Court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence."
Therefore, and since the case is at the investigation stage, whether or not the procedural irregularity in conducting search and seizure in the above place has caused serious prejudice to the accused is left open to be agitated during the trial of the case and the trial Court shall upon hearing both parties give its findings on that aspect. For the time being, the petitioner is given liberty to approach the concerned Magistrate to file a proper application under relevant law for granting interim custody of the valuable properties seized in his premises at Himayathnagar, Hyderabad and the trial Court shall pass an appropriate order on merits.
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UDPR, J WP.No.14861 of 2020
20. Thus, on a conspectus of facts and law as discussed supra, this Writ Petition is dismissed with the following observations:
(i) The searches and seizures conducted at different places are held not violative of order in I.A.No.1/2020 in W.P.No.922/2020 and consequently not violative of Articles 20(3), 21 and right of privacy of the petitioner.
(ii) The search and seizure operations conducted at Flat No.605, Legends Sidhi Apartments, Road No.5, Himayathnagar, Hyderabad are concerned, the petitioner is at liberty to agitate during trial before the trial Court that due to the procedural irregularities committed thereof, he suffered serious prejudice and the trial Court upon hearing both sides and considering this aspect, shall give its finding on the alleged procedural irregularities and decide whether the materials seized at the above place can be admitted in evidence or not, uninfluenced by the observations made in this order.
(iii) The petitioner is at liberty to approach the concerned Court and move an appropriate application under relevant statute seeking interim custody of the cash and other valuable properties seized from different places during the search operations by the respondent police and the Court after hearing both sides pass an appropriate order in accordance with law.
There shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed.
__________________________ U. DURGA PRASAD RAO, J 21.09.2020 MS/MVA 31 UDPR, J WP.No.14861 of 2020