State vs Rahis on 14 May, 2025
"14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42
thereof. That means that even subjective satisfaction on the part of the authority, as is
required under Sub-section (1) of Section 42, need not be complied with, only
because the place where at search is to be made is a public place. If Section 43 is to be
treated as an exception to Section 42, it is required to be strictly complied with. An
interpretation which strikes a balance between the enforcement of law and protection
of the valuable human right of an accused must be resorted to. A declaration to the
effect that the minimum requirement, namely, compliance of Section 165 of the Code
DLSH010059892017 Page 21 of 68
SC 303/2017
STATE Vs. RAHIS
FIR No.455/2017
PS : SEEMA PURI
U/s.20 (b)(ii)(B) NDPS ACT
of Criminal Procedure would serve the purpose may not suffice as non-compliance of
the said provision would not render the search a nullity. A distinction therefore must
be borne in mind that a search conducted on the basis of a prior information and a
case where the authority comes across a case of commission of an offence under the
Act accidentally or per chance. It is also possible to hold that rigours of the law need
not be complied with in a case where the purpose for making search and seizure
would be defeated, if strict compliance thereof is insisted upon. It is also possible to
contend that where a search is required to be made at a public place which is open to
the general public, Section 42 would have no application but it may be another thing
to contend that search is being made on prior information and there would be enough
time for compliance of reducing the information to writing, informing the same to the
superior officer and obtain his permission as also recording the reasons therefore
coupled with the fact that the place which is required to be searched is not open to
public although situated in a public place as, for example, room of a hotel, whereas
hotel is a public place, a room occupied by a guest may not be. He is entitled to his
right of privacy. Nobody, even the staff of the hotel, can walk into his room without
his permission. Subject to the ordinary activities in regard to maintenance and/or
house keeping of the room, the guest is entitled to maintain his privacy. The very fact
that the Act contemplated different measures to be taken in respect of search to be
conducted between sunrise and sunset, between sunset and sunrise as also the private
place and public place is of some significance. An authority cannot be given an
untrammeled power to infringe the right of privacy of any person. Even if a statute
confers such power upon an authority to make search and seizure of a person at all
hours and at all places, the same may be held to be ultra vires unless the restrictions
imposed are reasonable ones. What would be reasonable restrictions would depend
upon the nature of the statute and the extent of the right sought to be protected.
Although a statutory power to make a search and seizure by itself may not offend the
right of privacy but in a case of this nature, the least that a court can do is to see that
such a right is not unnecessarily infringed. Right of privacy deals with persons and
not places."