Illegal Search and Use of Evidence

Search and seizure is a legal procedure whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person’s property and confiscate any relevant evidence to the crime. Searches generally, are covered by § 97-103 and 165 of the CrPC. [1] When any of the directives related to search and seizure of any of these sections, or directives by special acts are violated, then the search so performed is known as an illegal search. It is commonsensical that if the safeguards are not followed the logical consequence would be that the search would not have the same credibility which a search would have if the safeguards were duly followed. Nevertheless, it can be expected that non-compliance cannot have the same effect as totally effacing the search or seizure. [2]

The primary remedy in illegal search cases is known as the exclusionary rule. [3] This means that any evidence obtained through an illegal search is excluded and cannot be used against the defendant at his or her trial.When there is a procedural lapse that vitally affects the trial to the prejudice of the accused and is irreversible, the accused would be entitled to be acquitted. In such a case the court has to be satisfied of the prejudice caused. [4]

To better understand the position of law as is condoned and espoused by the Judiciary, esp. the Supreme Court, a select few important cases relating to illegal search and the use of such evidence collected, have been analyzed here.

As will be seen, these cases clearly hold that illegal searches do not affect the trial. The only consequence of illegality in search is reduced credibility so that the courts have to examine the evidence more carefully as well as conferring a right on the person accused to resist and refute it. [5]

Justice A.K. Mathur’s analysis and opinion

Justice Mathurhas analyzed and discussed the decision in Balbir Singh [6] where the accused was acquitted on the grounds of non-compliance with the statute (Narcotic Drugs and Psychotropic Substances Act, 1985). There was a divergence of opinion between different benches of the SC regarding Section 50 of the NDPS Act and in particular with regard to the admissibility of the evidence collected by an investigating officer during search and seizure conducted in violation of the provisions of Section 50 of NDPS Act. In the cases of State of Punjab v. Balbir Singh [7] , Ali Mustaffa Abdul RahmanMoosa v. State of Kerala [8] , SaiyadMohd.SaiyadUmarSaiyad and others v. State of Gujarat [9] , and a number of other cases, it was laid down that failure to observe the safeguards, while conducting search and seizure, as provided by Section 50 would render the conviction and sentence of an accused illegal. [10]

He opines that in India, where only ten percent of persons tried for serious offences are convicted, these rules will further diminish the effectiveness of the criminal justice system. The remitting confidence in the system may reach a vanishing point if people find persons accused of serious offences being set free to continue their trade by the introduction of synthetic rules which stifle the truth altogether for the fault of the law enforcement agencies, instead of correcting them. [11] However, his analysis of the SC’s standpoint gauged by a study of more recent cases shows that the judiciary has reverted back to it’s earlier position of condoning evidence obtained via illegal search if justifiable in light of the merits and circumstances of the case.

Case analysis:

Joginder Kumar v. State of Uttar Pradesh deals with illegal arrest. Joginder was illegally detained for five days in the custody of the S.S.P. Gaziabad and another. In People v. Defore1 Justice Cardozoheld that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. He observed: “The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office.” [12]

In the same case, Judge Learned Hand, in Fried Re, has been quoted as saying: “The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise.” [13]

This case, although not dealing with illegal search and seizure per se becomes important to portray the judiciary’s attitude towards the issue of search, seizure and arrest and goes a long way to assure that as long as there are no dire and insurmountable obstacles, evidence obtained via illegal search in certain circumstances may be condoned.

In State Of Himachal Pradesh vsShriPirthiChand And Another the respondent’s house was raided and charas was found. After a consideration of the charge sheet the Sessions judge discharged the respondent from the offence. The High confirmed the same. The Sessions judge discharged the accused, even before the trial was conducted on merits, on the ground that the provisions of § 50 of theNarcotic Drugs and Psychotropic Substances Act, 1985 had not been complied with. Here, the SC referred to and relied upon the judgment in PooranMals case and held that the evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The Court further observed that even if search was found to be in violation of law, what weight should be given to the evidence collected was a question to be gone into during trial.With the above observations, the Bench recorded a finding that the Sessions Judge was not justified in discharging the accused after filing of the charge sheet holding that mandatory requirements of Section 50 had not been complied with. The court further elaborately considered the effect of the violation of Section 50 and held that any evidence recorded and recovered in violation of the search and the contraband seized in violation of the mandatory requirement does not ipso facto invalidate the trial. [14]

In State of Punjab v. Balbir Singh the SC has considered the provisions of the Act. Section 50 has been held to be mandatory. In paragraph 16, the SC has held that it is obligatory on the part of the empowered or the authorized officer to inform the suspect that, if so required, he would be produced before a Gazetted Officer or a Magistrate and search would be conducted in his presence. It was imperative on the part of the officer to inform the person of the above right and if he failed to do the same, it amounted to violation of the requirement of Section 50 of the Act.It was held that when the person was searched he must have been aware of his right and that it could be done only if the authorized or empowered officer informed him of the same. Accordingly, this Court by implication read the obligation on the part of authorized officer to inform the person to be searched, of his right to information that he could be searched in the presence of the Gazetted Officer or the Magistrate. This was the illegal search carried out by the police.

The evidence obtained under an illegal search and seizure does not exclude relevant evidence on that ground. It is wrong to invoke the spirit of Constitution to exclude such evidence. This view has also been voiced in Pooran Mal v. Director of Inspection and in this case. The evidence obtained through illegal search cannot be excluded completely for consideration only on the grounds that it has been obtained through illegal search and seizure. When the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search and seizure, is not liable to be shut out. Search and seizure are not a new weapon in the armory of those whose duty it is to maintain social security in its broadest sense.

“It is settled law that illegality committed in investigation does not render the evidence obtained during that investigation inadmissible. Inspite of illegal search property seized, on the basis of said search, still would form basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial.” [15]

The following case lawswere also referred to in the case:

In RadhaKishan v. State of U.P.,theSC held that the evidence obtained by illegal search and seizure would not be rejected but requires to be examined carefully.In State of Maharashtra v. Natwarlal , even if the search was illegal, it will not affect the validity of the seizure and further investigation of the authorities or the validity of the trial which followed on the complaint by the customs officials. In ShyamLal v. State of M.P., it was held that even if the search and seizure is illegal being in contravention of Section 165, that provision does not have any effect in its application to the subsequent steps taken in the investigation. [16]

In Sunder Singh v. State of Uttar Pradesh a three Judge Bench of this Court held that under Section 103 of the CrPC, 1898 though respectable inhabitants of the locality were not associated with the search, that circumstance would not invalidate the search. It would only affect the weight of the evidence in support of the search and the recovery. At the highest, the irregularity in the search and the recovery would not affect legality of the proceedings. [17]

In light of these arguments the SC held in paragraph 7 of the judgment that it would thus be settled law that every deviation from the details of the procedure prescribed for search, would not necessarily lead to the conclusion that search by the police rendered the recovery of the articles pursuant to the illegal search, irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on facts and circumstances in each case. The court is required to scan the evidence with care and to act upon it when it is proved and the court would hold that the evidence would be relied upon.

In MatajogDubey v. H.C. Bahri it was held that when the salutary provisions have not been complied with, it may, however, affect the weight of the evidence in support of the search or may furnish a reason for disbelieving the evidence produced by the prosecution unless the prosecution properly explains such circumstances which made it impossible for it to comply with these provisions.

In Balbir Singh’s case theSC held that if the provisions of the Act have not been complied with, the Court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of the search in the light of the fact that the provisions have not been complied with and further consider whether weight of evidence is in any manner affected because of the noncompliance. The testimony of witness is not to be doubted or discarded merely because he happens to be official. As a rule of caution and depending upon the circumstances of the case the court may look for corroboration from independent evidence. This again depends upon the question whether the official has deliberately failed to comply with the provisions or failure was due to lack of time and opportunity to associate some independent witness with the search and strictly comply with the provisions. [18]

In Rakesh Kumar SachdevaDeva v. State [Delhi Administration] (1994) Supp. 3 SCC 729 it was held that failure to join independent witness of locality is also not fatal. Conviction based on evidence of police officers alone is not improper. [19]

In Mrs. RupanDeol Bajaj and Anr. v. Kanwar Pal Singh Gill and Anr.the SC held that when the complaint or charge sheet filed disclosed prima facie evidence the Court would not weigh at that stage and find out whether offence could be made out. The order of the High Court exercising the power under Article 226, was accordingly set aside. [20] It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinize the FIR or charge Sheet or complaint.

The evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. [21] Even if the search may be illegal the evidence collected would be admissible at the trial.

The accused involved in an economic offence destabilizes the economy and causes grave incursion on the economic planning of the State. When the legislature entrusts the power to the police officer to prevent organized commission of the offence or offences involving moral turpitude or crimes of grave nature and are entrusted with power to investigate into the crime in intractable terrains and secretive manner in concert, greater circumspection and care and caution should be bornein mind by the courts when they consider evidence obtained from illegal search. Otherwise, the social order and security would be put in jeopardy and to grave risk. The accused will have field day in destabilizing the economy of the Stale regulated under the relevant provisions.

In State Of Punjab vsJasbir Singh And Ors. [22] the court held that itwas settled law that evidence collected during investigation in violation of the statutory provisions does not become inadmissible and the trial on the basis thereof does not get vitiated. Each case is to be considered on its own backdrop.

In M.P. Sharma and others v. Satish Chandra, District Magistrate, Delhi and others [23] the SC held that search and seizure was a temporary interference with the right to hold the premises searched and the articles seized and did not in any way violate any of the Constitutional or fundamental rights of the individual. As to the current position of the law, the SC held in State of Punjab v. Baldev Singh [24] that an illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in Section 50 of the Act, cannot by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. Any other material/article recovered during that search may, however, be relied upon by the prosecution in other/independent proceedings against an accused notwithstanding the recovery of that material during an illegal search and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case.

Giving the accused benefit of every small irregularity is no longer permissible. The interest of the society is also to be considered, with equal concern for the liberty of the individual. [25]

Conclusion

The current position of law according to State of Punjab v. Baldev Singh is that an illegal search and seizure may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. The SC also held that the judgment in Ali Mustaffa’s case correctly interprets and distinguishes the judgment in PooranMal’s case and the broad observations made in PirthiChand’s case and Jasbir Singh’s case are not in tune with the correct exposition of law as laid down in PooranMal’s case.Seizures of all objects and substances, other than narcotics, when made during an illegal search and seizure, as has been stated above, may be relied upon by the prosecution in other/independent proceedings against an accused and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case.

This law settled by the judiciary very well answers the problems faced by the Indian society and scenario. There is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, as has been provided in Baldev Singh [26] , is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed.

An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice.In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That should not be permitted.

In light of the cases studied and discussions therein provided discussed, and on an analysis of such relevant cases, it appears that the recent and current position of the judiciary on the question of law pertaining to the admissibility of evidence collected during illegal searches is just, fair and compatible with our system of jurisprudence.