Point of Law: Test of admissibility of evidence lies in its relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.

JUDGMENT :

CHANDRA DHARI SINGH, J.

1. The instant Criminal Writ Petition has been preferred by the petitioner under Article 226 read with Article 227 of the Constitution of India, seeking a writ of Mandamus or any other appropriate writ or order or direction in the nature for quashing of the order no. 14/3/97-CBI dated 30th January, 2018, issued by Ministry of Home Affairs (hereinafter “MHA”) which permitted interception of telephonic calls of the petitioner, in the exercise of the powers conferred under Section 5(2) of the Indian Telegraph Act, 1885 and Rule 419 (A) of the Indian Telegraph Rules 2007. The Petitioner further seeks that the interception messages/calls obtained/recorded thereunder shall be destroyed and not to be used for any purposes.

FACTUAL MATRIX

2. Brief facts of the case are as laid down under:

a. Permission for interception of telephonic calls of the petitioner was granted by the MHA under Section 5(2) of the Indian Telegraph Act, 1885 and as per the procedure laid down under Rule 419A of the Telegraph Rules by order dated 30th January, 2018. In pursuant to the Order, FIR No. RC 01 (A)/2018/AC-111/CBI/New Delhi was registered under Sections 7/8/12/13(2) read with 13(1) of the Prevention of Corruption Act, 1988 (hereinafter “PC Act”) and under Section 120B of Indian Penal Code, 1860 (hereinafter “IPC”) at PS SPE/CBI/ACU-VIII/ACIII on 7th February, 2018. A raid was conducted on the same day and 4 persons including the petitioner were taken into custody. Bail was granted to the petitioner by learned Special Judge- CBI (PC Act)- 06 Tis Hazari Court, India.

b. Thereafter, Chargesheet was filed before the learned Special Judge on 23rd December, 2019. The perusal of the Chargesheet and FIR demonstrates that the case made by respondent no. 1 (CBI) was based on the interception of the telephonic conversation amongst the accused persons by the Special Unit CBI, New Delhi upon taking permission from the MHA vide the Impugned Order.

c. The learned Special Judge took cognizance of the offences punishable under Sections 7/8/12/13(1) read with 13(2) of the PC Act and substantive offences thereof. Hence, the instant petition filed by the petitioner.

SUBMISSIONS

3. Mr. Vikas Pahwa, learned senior counsel appearing on behalf of the petitioner submitted that reasons for “public emergency” or “public safety” were neither recorded in the Impugned Order nor attracted in the instant case. The substantive as well as procedural safeguards enumerated under Section 5(2) of Telegraph Act and Rule 419A of Telegraph Rules have been violated which has resulted in violation of fundamental right to privacy of the petitioner.

4. Learned senior counsel for the petitioner referred to the judgment of People’s Union of Civil Liberties (PUCL) vs. Union of India (UOI) and Ors., (1997) 1 SCC 301. The Hon’ble Supreme Court stated that to pass an Order for interception, in exercise of powers under Section 5(2) and Rule 419-A, the occurrence of a public emergency or existence of public interest are the sine qua non. The judgment defined “public emergency” as a sudden condition or state of affairs affecting the people at large calling for immediate action. The Hon’ble Supreme Court further defined “public safety” as a state or condition of freedom from danger or risk for people at large. If either of the two conditions were not in existence, the authorized officer could not resort to telephone tapping even though there was satisfaction that it was necessary to do so in the interest of sovereignty and integrity of the country. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. The same was affirmed by a 9 Judge bench of the Hon’ble Supreme Court in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

5. It is submitted that the Impugned Order stated that the said judgments were being passed for reasons of “public safety”, “in the interest of public order” and “for preventing incitement to the com