JUDGMENT :

Ranjit More, J.

The petitioner has impugned before us the orders dated 29th October, 2009, 18th December, 2009 and 24th February, 2010, which directed interception of telephone calls by respondent No.2 on the ground of being ultra vires of Section 5(2) of the Indian Telegraph Act, 1885 (for short "the Act"), noncompliance of Rules made thereunder, and for being in violation of the fundamental rights guaranteed under Part-III of the Constitution of India. The petitioner's case is that they ought to be quashed and intercepted messages obtained thereunder shall be destroyed as directed by the Hon'ble Supreme Court in Peoples Union for Civil Liberties (for short "the PUCL") v. Union of India, (1997) 1 SCC 301 and as provided in Rule 419A(17) introduced by G.S.R.193 of 1st March, 2007 (w.e.f. 12th March, 2007) The petitioner is also relying on a Nine Judge Constitution Bench judgment in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 for seeking enforcement of his fundamental rights under Articles 14 and 21 of the Constitution of India.

2. As per petitioner, the alleged illegally intercepted telephonic recordings contained in the charge-sheet and all material collected on the basis of such alleged illegally intercepted telephonic recordings ought to be set at naught. The petitioner submits that it is settled law that if the foundation is removed, the structure falls and that the legal maxim "sublato fundamento cadit opus" squarely applies in the instant case.

3. Section 5 of the 1885 Act deals with the power of the Government to take possession of licensed telegraphs and to order interception of messages. Sub-section (2) of Section 5, for our purpose is relevant, which reads as follows:

"5.(1)

(2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order:

Provided that the press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.]"

[Underlined emphasis supplied]

4. In PUCL (supra), a two Judge Bench of the Apex Court has observed as follows :

18. The right to privacy-by itself-has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as "right to privacy". Conversations on the telephone are often of an intimate and confidential character. Telephone-conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by