When illegality pays: Rethinking search, seizure and evidence

Imagine a raid that has been called completely illegal by every court to have examined it. Now, imagine the evidence from that raid being used anyway - not because the law permits it, but because no one has yet squarely asked whether it still should. That is the situation after Dr Naresh Kumar Garg v. State of Haryana. The facts are unremarkable. The consequences for Indian evidence law are not.

At first glance, the decision appears unremarkable - a Section 482 Code of Criminal Procedure (CrPC) quashing petition is dismissed and the trial is to continue. On closer examination, however, I found that the judgment engages in a consequential act of judicial line-drawing that warrants careful scrutiny. The Bench accepts, on the authority of a coordinate bench decision in Ravinder Kumar v. State of Haryana, that the search of the appellant's clinic was illegal. It then holds that this illegality does not automatically require the discarding of the evidence gathered during that search and dismisses the appeal.

It piqued my interest, and something felt off - a spooky kind of recognition - prompting me to dive deeper to see whether it revisits the infamous Pooran Mal v. Director of Inspection (Investigation). Indeed, there it was, amidst the reasoning in para 53, the ghost of Pooran Mal resurrected in the post-Puttaswamy era.

The judgment does three things that deserve scrutiny. But the one that matters most is its silence on whether Pooran Mal can still stand after Puttaswamy. Everything else in this article orbits that question.

Dr Garg, a radiologist, was accused of enabling sex determination. The police filed a discharge application, stating that Garg conducted the ultrasound but did not perform sex determination and no communication was found between Garg and Kadir, who was running the sex determination racket. The magistrate discharged Garg. The district authority filed a complaint under the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, after which the magistrate issued summons. Garg Section 482 CrPC petition was dismissed by the High Court, leading to this appeal.

The ratio of Ravinder Kumar - in which it was held that continuing a prosecution based wholly on an illegal search would be an abuse of the process of law - is limited. The quashing relief granted in Ravinder Kumar was fact-specific, not ratio decidendi.

Even while holding that the precedent in Ravinder Kumar applies and finding that the search was illegal, the Court held that “the matter would not stop at that.”

While the search was illegal, the evidence collected during it "cannot be discarded altogether, like the baby with the bath water." Such material can still be "acted or relied upon subject to the rule of relevancy and the test of admissibility." The Court draws on Radha Kishan v. State of UP (1963), RM Malkani v. State of Maharashtra (1973) and Pooran Mal v. Director of Inspection (1974).

The most jurisprudentially significant aspect of the judgment is the handling of Ravinder Kumar. The Court correctly states the general principle: relief granted in a judgment is not its ratio decidendi. However, the application of this principle here requires examination.

In Ravinder Kumar, after finding the Section 30(1) search illegal, the coordinate bench made a specific factual finding: that the entire prosecution rested exclusively on materials seized during the illegal search; there was nothing else connecting the accused to the offence. On that combined factual-legal finding, it quashed both the FIR and the complaint. The Bench of Naresh Kumar Garg distinguishes the present case on the ground that independent evidence of statutory violations exists over and above the tainted search.

The difficulty is that this so-called "independent evidence" was itself observed and collected by the illegally constituted raid team during the illegal search. Whether this material is genuinely "independent" of the illegal search - or whether it too is contaminated by the illegality - is a contested question of law and fact that the Court treats as settled. It is not.

Furthermore, severing the Ravinder Kumar relief from its ratio produces an intellectually uncomfortable result: the same illegality of search that in Ravinder Kumar led to quashing now, in Naresh Kumar Garg, results in the accused being sent for a full trial on the strength of material gathered in that same illegal search. The accused doctor bears the entire burden of the appropriate authority's illegality. This is the practical consequence of treating a coordinate bench's relief as "fact-specific" without rigorously testing whether the distinguishing fact (the existence of "independent evidence") is genuinely independent.

The admissibility analysis in paragraphs 50–53 rests on three precedents, culminating in the Constitution Bench decision in Pooran Mal v. Director of Inspection. Pooran Mal holds that the Indian Evidence Act does not exclude relevant evidence merely because it was obtained through an illegal search or seizure and that unless there is an "express or necessarily implied prohibition in the Constitution or other law," such evidence is not liable to be shut out.

However, Pooran Mal contains within its own ratio the seed of the counter-argument: the exception of "express or necessarily implied prohibition in law."

In State of Punjab v. Baldev Singh, a Constitution Bench applied this exception precisely to Section 50 of the NDPS Act. The Bench held that Section 50 creates a mandatory statutory safeguard for the accused - the right to be searched before a gazetted officer or magistrate - and that evidence of possession of contraband obtained in violation of this safeguard cannot be used as proof of the offence charged. The Court held that the use of such evidence would render the trial unfair and violate the accused's right to a fair trial. Critically, the Baldev Singh Bench was fully aware of Pooran Mal. It did not overrule it. Instead, it held that Section 50 NDPS constitutes "an express prohibition in law" - the very exception Pooran Mal carved out.

The parallel argument for the PCPNDT Act is direct and compelling. Section 30(1) uses mandatory language: a search "shall" be authorised by the appropriate authority collectively. In Ravinder Kumar, the Supreme Court held that this is a mandatory collective requirement, breach of which renders the search "completely illegal." If Section 30(1) is a mandatory statutory safeguard, then by the Pooran Mal/Baldev Singh framework, it constitutes an express prohibition in law and evidence from an unauthorised search ought not to be used as proof of the PCPNDT offence.

The Naresh Kumar Garg bench does not cite Baldev Singh, does not address this argument and applies Pooran Mal as if the Baldev Singh limitation does not exist. Baldev Singh is not an obscure authority. It is a Constitution Bench decision. The Bench in Naresh Kumar Garg does not mention it once. The silence is not a gap; it is a wound in the reasoning.

In Pooran Mal, a Constitution Bench of the Supreme Court was called upon to decide whether evidence obtained through an illegal search and seizure under the Income Tax Act could be excluded from consideration by courts. The Court answered in the negative and laid down what became the governing rule in India: unless there is an express or necessary 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.

In 1974, Pooran Mal was not a ghost. It was a Constitution Bench holding built on solid constitutional ground - specifically, on the basis of categorical declaration in MP Sharma v. Satish Chandra that no right to privacy existed in India. The ghost metaphor is apt, then. Not because Pooran Mal was always illusory, but because the ground beneath it was removed in 2017. Puttaswamy's act of overruling MP Sharma is, in constitutional logic, the moment Pooran Mal lost its ground. The ghost stood exorcised.

In 2017, the nine-judge Bench in Puttaswamy explicitly and unanimously overruled MP Sharma insofar as it held that the right to privacy is not a fundamental right. It went further: it held that privacy is not to be read merely into the "spirit" of the Constitution through strained construction but is embedded in its letter - in the guarantees of life and personal liberty under Article 21, in the freedoms under Article 19 and in the equality guarantee of Article 14.

Puttaswamy also established that any State action invading the right to privacy must satisfy a multi-pronged test: it must have a legal basis, pursue a legitimate aim and be necessary and proportionate to that aim. An invasion that does not meet these requirements is unconstitutional — not merely irregular or illegal in a procedural sense. A search authorised by a single member of the appropriate authority in direct violation of Section 30(1) fails the test: it is not sanctioned by law. The Supreme Court in Ravinder Kumar itself called such a search "completely illegal."

An invasion of a citizen's professional premises that is "completely illegal" is, under Puttaswamy, an unconstitutional violation of the fundamental right to privacy under Article 21. The question that arises - and that the Naresh Kumar Garg Bench does not engage with - is whether the Pooran Mal admissibility rule needs reconsideration in light of the decision in Puttaswamy, where the illegal search also constitutes a constitutional violation of a fundamental right.

To be precise about what this argument can and cannot achieve: a two-judge bench cannot overrule a Constitution Bench and no Supreme Court bench has yet held that Puttaswamy modifies or overrules Pooran Mal in the criminal evidence context. The Puttaswamy argument, therefore, cannot be the basis of a direct challenge at the trial court level. What it can do is a reference to a larger bench. The five-judge Bench decision in Pooran Mal predates Puttaswamy's nine-judge recognition of privacy as a fundamental right and that gap in bench strength alone is a basis for reconsideration.

The Naresh Kumar Garg Bench's complete silence on this question is a missed opportunity of considerable significance.

The combined effect of the Court's reasoning produces a troubling structural outcome.

Section 30(1) of the PCPNDT Act mandates that search authorisation be a collective decision of the appropriate authority. In Ravinder Kumar, the Supreme Court declared single-member authorisation "completely illegal." Every court dealing with this issue repeats that declaration. Yet, after Naresh Kumar Garg, what is the enforceable consequence of this illegality?

The search is illegal. Everyone agrees. And then? Nothing. The records are admitted. The complaint proceeds. The accused doctor hires lawyers, attends hearings, lives under prosecution - not despite the illegality, but because of the evidence gathered in it. The "mandatory" collective requirement of Section 30(1) has been declared mandatory by the Supreme Court and then left without a single enforceable consequence.

In effect, an appropriate authority chairperson can unilaterally authorise a raid, knowing that the illegality will not lead to quashing of proceedings and will not exclude the evidence at trial. The "mandatory" requirement has no teeth. The accused doctor is forced through a full criminal trial on the basis of evidence from an admittedly illegal search.

The judgment is not wrong about everything. On the quashing standard, the Court is actually right. It held that the Section 482 CrPC power to quash is not a substitute for trial and should not be exercised merely because an illegal search was conducted. Where independent evidence of statutory violations exists, sending the matter to trial rather than quashing at the threshold is a defensible exercise of judicial discretion. The Court's instinct not to shut down a PCPNDT prosecution entirely - in an area where female foeticide remains a serious social concern - is understandable.

The Court correctly holds that discharge of the accused in the police case does not bar the appropriate authority's complaint under Section 28 of the PCPNDT Act. The two regimes are structurally independent - PCPNDT offences are complaint-driven under Section 28 and police cannot take cognisance. This is a useful and well-reasoned clarification.

By expressly stating in Para 57 that all contentions on reliability and admissibility of evidence are kept open for trial, the Court has preserved the accused's full ability to challenge the tainted material at trial. This is the correct approach when declining to quash at threshold and, importantly, it is not a foreclosure of the Ravinder Kumar argument at the merits stage.

The Pooran Mal–Puttaswamy tension needs a Constitution Bench. Two-judge benches will keep producing contradictory results until one is forced to confront it squarely. The Baldev Singh question needs the same. And the treatment of Ravinder Kumar as "fact-specific relief" deserves testing before a larger bench, because if it stands, Section 30(1) is effectively dead as a safeguard.

The question is not whether Dr Garg is guilty. The question is whether Indian courts will continue applying a 1974 admissibility rule whose constitutional foundation was removed in 2017. Two-judge benches cannot answer that. Trial courts cannot answer that. Someone will eventually have to. The time is ripe to formulate an Indian doctrine akin to the “fruit of the poisonous tree” doctrine in the USA and the "unfair operation 4ule" in the UK. And when that reference comes, because it will, Naresh Kumar Garg will be the case that made it unavoidable.

Jay S. Shah is a practicing advocate at Gujarat High Court and Supreme Court of India.