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SUPREME COURT OF INDIA
15th March 1954
M.C. MAHAJAN, C.J.I. B.K. MUKHERJEA S.R. DAS, BOSE, GHULAM HASAN, BHAGWATI, JAGANNADHA DAS AND VENKATARAMA AYYAR, JJ.
M. P. Sharma and others, Petitioners
Versus
Satish Chandra, District Magistrate, Delhi and others, Respondents.
Petitions Nos. 372 and 375 of 1953.
Advocates appeared
In both the Petitions:
Messers Veda Vyasa and Daulat Ram Kalia, Senior Advocates, (Messer s S. K. Kapur and Ganpat Rai, Advocates, with them), for Petitioners; Mr. C. K. Daphtary, Solicitor-General for India, (Messrs Porus A. Mehta and A. M. Chatterjee, Advocates, with him), instructed by Mr. R. H. Dhebar, Agent, for Respondent.
Held1: Article 20(3) embodies the principle of protection against compulsion of self-incrimination which is one of the fundamental canons of the British system of criminal jurisprudence and which has been adopted by the American system and incorporated as an article of the Constitution. It has also, to a substantial extent, been recognised in the Anglo Indian administration of criminal justice in this country by incorporation into various statutory provisions.
Analysing the terms in which this right has been declared in our Constitution, it may be said to consist of the following components:-
(I) It is a right pertaining to a person "accused of an offence"; (2) It is a protection against "compulsion to be a witness" ; and (3) It is a protection against such compulsion relating in his giving evidence "against himself." Search of premises and seizure of documents may seem to fall in the last category. But 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. 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) of the Constitution. But a search-warrant is addressed to
1. For facts of this case, see p. 389 ante 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.
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 is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, there is 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.
Judgment
JAGANNADHADAS, J.: These two applications are for relief under Article 32 of the Constitution arising out of similar and connected set of facts and are dealt with together. They arise under the following circumstances. The Registrar of the Joint Stock Companies, Delhi State, lodged information with the Inspector-General Delhi Special Police Establishment to the following effect. Messrs. Dalmia Jain Airways Ltd. was registered in his office on 9-7-1946, with an authorised capital of Rs. 10 crores and went into liquidation on 13-6-1952.
An investigation into the affairs of the Company was ordered by the Government and the report of the inspector appointed under S. 138, Companies Act indicated that an organised attempt was made from the inception of the Company to misappropriate and embezzle the funds of the Company and declare it to be substantial loss, and to conceal from the share-holders the true state of affairs by submitting false accounts and balance-sheets. Various dishonest and fraudulent transactions were also disclosed which show that false accounts with fictitious entries and false records were being maintained and that dishonest transfers of moneys had been made. It was accordingly alleged that offences under Ss. 406, 408, 409, 418, 420, 465, 467, 468, 471 and 477(a), Penal Code had been committed.
It was also stated that Seth R.K. Dalmia who was the Director and Chairman of Dalmia Jain Airways Ltd. had been controlling certain other concerns, viz., (1) Dalmia Cement & Paper Marketing Co., Ltd., (2) Dalmia Jain Aviation Ltd. now known as Asia Udyog Ltd. and (3) Allen Berry & Co. Ltd. through his nominees and that all these concerns were utilized in order to commit the frauds. It was further stated therein by the Registrar of Joint Stock Companies that to determine the extent of the fraud, it was necessary to get hold of books not only Dalmia Jain Airways Ltd. but also of the allied concerns controlled by the Dalmia group, some of which are outside the Delhi State. Lists of the offices and places in which and of the persons in whose custody the records may be available were furnished. Speedy investigation was asked for.
This information was recorded by the Special Police on 19-11-1953, as the First Information Report. On the basis thereof an application was made to the District Magistrate, Delhi, under S. 96, Criminal Procedure Code, for the issue of warrants for the search of documents and in the places, as per schedules furnished. Permission to investigate in respect of some of the non-cognisable offences mentioned in the First Information Report was also asked for. On the same day, the District Magistrate ordered investigation of the offences and issued warrants for simultaneous searches at as many as 34 places. The searches were made on 25-11-1953, and subsequent days and a voluminous mass of records was seized from various places.
The petitioners pray that the search warrants may be quashed as being absolutely illegal, and ask for return of the documents seized. In Petition No. 372 of 1953 there are four petitioners of whom the second is the Delhi Glass Works Ltd. and the first the Deputy-General Manager thereof the third its Secretary and the fourth a share-holder therein. In Petition No. 375 of 1953 there 302 are five petitioners of whom the first is Messrs Allen Berry & Co. Ltd., second Asia Udyog Ltd., the third Shri R. K. Dalmia, the fourth the Secretary and General Attorney of the third and the fifth a share-holder of Petitioners. Nos. 1 and 2, and an officer of petitioner No. 2.
It will be seen that the petitioners in both the petitions belong to the four concerns, namely, (1) Delhi Glass Works Ltd. (2) Messrs Allen Berry & Co. Ltd., (3) Asia Udyog Ltd., and (4) Dalmia Jain Airways Ltd. The last three are stated to be Dalmia concerns but it does not appear from the records placed before us what exact connection Delhi Glass Works Ltd. has with them. However, it is admittedly one of the places for which a
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