TaxTMI 
TaxTMI 
2014 (8) TMI 1071
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....the said premises and have sought the following reliefs amongst the others, on the grounds taken in the memo of writ petition: "Writ Petition under Article 226 of Constitution of India for issuance of appropriate writ, order or direction humbly beseeching this Hon'ble Court to declare the purported searches and seizures conducted by Punjab Police at the premises of the petitioners in the State of Himachal Pradesh on 15.11.2013 and 16.11.2013 without following mandate law to be illegal, null and void ab-initio. Further for issuance of appropriate writ, order or directions to Respondents No. 1, 2, 4 and 6 (police authorities in the State of Himachal Pradesh) to register a case and investigate the role of various persons including police personnel from Punjab who had conducted alleged searches and seizures in duly licensed premises of petitioner; lifted licensed stock of Ephedrine/Pseudoephedrine (controlled substances under NDPS Act, 1985) without being accompanied by or associated with the officials of Licensing Authority viz. State Drugs Controller-cum- Licensing and Controlling Authority Himachal Pradesh (Respondent No. 3), whereby such acts of omission/commission tantamo....
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....referred to as "the IPC") and Sections 21, 22, 61 and 85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act"). During investigation, the Investigating Officer was of the view that the search is to be conducted at various places, also in the premises of the petitioners at Solan and accordingly, sought permission in terms of the mandate of Criminal Procedure Code (hereinafter referred to as "the CrPC"). The JMIC, Mohali, after examining the request and the contents contained in the motion, granted the permission and permitted the Investigating Officer to conduct search in the said premises at Solan vide order, dated 14th November, 2013. It is apt to reproduce the relevant portion of order, dated 14th November, 2013, made by JMIC, Mohali, herein: "Heard on the application filed by the I.O. through Ld. APP for the State for issuance of search warrants for conducting the search of following premises:- 1. MBP Pharma Private Limited, Village Jodhapur Kalka Road, Badi, Distt. Solan (HP) 2. Montek Bio Pharmtec Plot No. 45, Batouli Kalan, Distt. Solan (HP) 3. Tulip formulation, Village Damtaal, Himachal Pradesh, near Pathankot. ....
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.... sought by the petitioners in CWP No. 88 of 2013 before the Punjab and Haryana High Court herein: "i. Issue entrustment of investigation in case FIR No. 56 dated 15.5.2013 registered under Sections 379/411/473/120-B IPC and 21/22/61/85 Narcotic Drugs And Psychotropic Substances Act, 1985 at Police Station Banur District Patiala (Annexure P- 46) (hereinafter referred to as 'NDPS Act') and other such similar cases apparently being investigated by Special Investigation Team under the supervision of Respondent No. 3 Senior Superintendent of Police, Patiala to the Central Bureau of Investigation (hereinafter referred to as 'CBI') in view of the wide ranging ramifications/repercussions both national and international including the urgent need to unearth the unholy nexus involving officials, ministers, bureaucrats, leaders of political parties and other such persons occupying positions in higher echelons of power and authority with the drug racket in the State of Punjab as the investigations being conducted are merely aimed at sensationalizing the issue without any real intent to reach at the truth as also on account of the fact that no free, fair, impartial and unbiased....
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....ly be passed in favour of the Petitioners; vii. Dispense with the service of the advance notices upon the respondents; viii. Exempt the Petitioner from filing the certified/original as well as true type copies of Annexures P-1 to P-60; ix. Costs of the petition be Awarded in favour of the Petitioner; It is further prayed that this Hon'ble court may be pleased to stay all further proceedings arising out of FIR No. 56 dated 15.5.2013 registered under Sections 379/411/473/120-B IPC and 21/22/61/85 Narcotic Drugs And Psychotropic Substances Act, 1985 at Police Station Banur District Patiala (Annexure P-46) qua the petitioner in the interest of justice." 7. The said writ petition was listed before the Punjab and Haryana High Court on 9th January, 2014, and the following order came to be passed by the Punjab and Haryana High Court: "Counsel for the petitioner contends that the petitioner was arrested on 13/14.11.2013 and the recovery of 2 kg. of Pseudoephedrine and 25 grams of Ice/Metha Matamine was effected from Car No. PB-10-CE-0001 on 14.11.2013. Apart from this, his two factories at Baddi were searched on 15/16.11.2013 and thereafter recovery of 300 Kgs. of Mixtur....
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....efore this Court for issuance of writs of mandamus and certiorari, which came to be dismissed on the ground that the same was not maintainable as the High Court was not having the jurisdiction. Feeling aggrieved, the same was questioned before the Apex Court and the Apex Court held that search made without following due process of law was bad and the search was conducted within the jurisdiction of Himachal Pradesh and the High Court of Himachal Pradesh had the jurisdiction. But, it would be profitable to record herein that in the case (supra), no order was made by the Magistrate having the competence and jurisdiction and in the present case, order has been passed by JMIC, Mohali. 11. Learned counsel for the petitioner further argued that the search has not been conducted as per the provisions contained in the CrPC read with the provisions of NDPS Act. 12. Whether this argument is available to the petitioners is to be seen by the Magistrate, who has passed the order issuing the search warrants or can be raised before the Punjab and Haryana High Court, if permissible under law. At the cost of repetition, if at all the petitioners were aggrieved, they were to question the said order....
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.... provision for the issue of a summons, either by a police officer or by a Court for the production of a document required for investigation. This was followed by S. 368 relating to the issue of search warrants which was in the following terms : "When a Magistrate considers that the production of anything is essential to the conduct of an inquiry into an offence known or suspected to have been committed or to the discovery of the offender, or when he consider that such inquiry or discovery will be furthered by the search or inspection of any house or place, he may grant his search-warrant; and the officer charged with the execution of such warrant may search or inspect any house or place within the jurisdiction of the Magistrate of the District. The Magistrate issuing such warrant may, if he sees fit, specify in his warrant the house or place, or part thereof, to which only the search or inspection shall extend; and the officer charged with the execution of such warrant shall then search or inspect only the house, place or part so specified." It will be noticed that even when the procedure of summons for production of documents was introduced, as above in S. 365, the pro....
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.... 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 Art. 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 S. 165 of the Criminal P.C.). 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. We are not unaware that in the present set up of the Magistracy in this country, it is not infrequently that the exercise of this judicial function is liable to serious error, as is alleged in the present case. But the existence of scope for such occasional errors is no ground to assume circumvention of the con....
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....ay provide incriminating evidence against the accused it cannot be styled as compelled testimony. This is too obvious to need any precedent in support. The immunity against self-crimination extends to any incriminating evidence which the accused may be compelled to give. It does not extend to cover such situation as where evidence which may have tendency to incriminate the accused is being collected without in any manner compelling him or asking him to be a party to the collection of the evidence. Search of the premises occupied by the accused without the accused being compelled to be a party to such search would not be violative of the constitutional guarantee enshrined in Article 20(3). 15. It was, however, urged that Section 93(1) (c) must be read in the context of Section 93(1) (b) and it would mean that where documents are known to be at a certain place and in possession of a certain person any general search warrant as contemplated by Section 93(1) (c) will have to be ruled out because in such a situation Section 93(1) (a) alone would be attracted. Section 93(1)(b) comprehends a situation where the Court issues a search warrant in respect of a document or a thing to be rec....
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....ssession of any individual accused but stricto sensu it would be in possession of the institution. Books of accounts and other documents of the institution could not be said to be in personal custody or possession of the office-bearers of the institution but they are in possession of the institution and are lying in the office of the institution. A search of such a public place under the authority of a general search warrant can easily be sustained under S. 93(1)(c). If the order of the learned Magistrate is construed to mean this, there is no illegality committed in issuing a search warrant. Of course, issuance of a search warrant is a serious matter and it would be advisable not to dispose of an application for search warrant in a mechanical way by a laconic order. Issue of search warrant being in the discretion of the Magistrate it would be reasonable to expect of the Magistrate to give reasons which swayed his discretion in favour of granting the request. A clear application of mind by the learned Magistrate must be discernible in the order granting the search warrant. Having said this, we see no justification for interfering with the order of the High Court in this case." 17....