Distt. Registrar & Collector, ... vs Canara Bank Etc on 1 November, 2004

    CASE NO.:

Appeal (civil) 6350-6374 of 1997

PETITIONER:

Distt. Registrar & Collector, Hyderabad & Anr.

RESPONDENT:

Canara Bank Etc.

DATE OF JUDGMENT: 01/11/2004

BENCH:

CJI R.C. Lahoti & Ashok Bhan

JUDGMENT:

J U D G M E N T

WITH

C.A/2004 (Arising out of SLP (C) No. 11607/2001)

R.C. Lahoti, CJI.

  Leave granted in SLP (C) No. 11607/2001.

Section 73 of the Indian Stamp Act, 1899 as incorporated by Andhra Pradesh Act
No. 17 of 1986, by amending the Central Act in its application to the State, has
been struck down by the High Court of Andhra Pradesh as ultra vires the
provisions of the Indian Stamp Act as also of Article 14 of the Constitution.
The District Registrar and Collector, Registration and Stamps Department,
Hyderabad and the Assistant Registrar have come up in appeal by special leave.
Relevant Statutory Provisions under the Central Act : Section 73 of the Indian
Stamp Act (before the insertion of the text under the impugned State Legislation
in its applicability to the State of Andhra Pradesh) reads as under:-

"73. Every public officer having in

his custody any registers, books, records,

papers, documents or proceedings, the

inspection whereof may tend to secure any

duty, or to prove or lead to the discovery of

any fraud or omission in relation to any duty,

shall at all reasonable times permit any

person authorized in writing by the Collector

to inspect for such purpose the registers,

books, papers, documents and proceedings,

and to take such notes and extracts as he

may deem necessary, without fee or

charge."

The term 'public officer' is not defined in Section 73 nor in the interpretation
clause. However, the term 'public office' is found to have been used in Section
33. Sub-Section(3) of Section 33 provides as under:-

"33. (3) For the purposes of this section,

in cases of doubt ___

 (a) the State Government may determine

what offices shall be deemed to be public offices; and

 (b) the State Government may determine

who shall be deemed to be persons in charge of

public offices."

The term 'public officer having in his custody any registers etc.' as occurring
in Section 73 can be defined by having regard to the expression 'public office'
as occurring in Section 33. The central legislation including Section 73 took
care to see that the power to inspect was confined only to documents in the
custody of public officer which documents would necessarily be either public
documents or public record of private documents. The purpose of inspection is
clearly defined. It is permissible to have inspection carried out only in these
circumstances:- (i) when it may tend to secure any duty, or (ii) when it may
tend to prove any fraud or omission in relation to any duty, and (iii) when it
may tend to lead to the discovery of any fraud or omission in relation any duty.

The State Amendments (1986)

The A.P. Act No.17 of 1986 has amended the Indian Stamp Act, 1899 in its
application to the State of Andhra Pradesh. The Act was reserved by the
Government of A.P. on 24th April, 1986 for the consideration and assent of the
President and received such assent on 17th July, 1986 which was published in the
Andhra Pradesh gazette for general information on 22nd July, 1986. Out of the
several amendments made by the A.P. Act 17 of 1986, the relevant one for our
purpose is Section 73 as substituted in place of the original Section 73 of the
Indian Stamp Act by Section 6 of A.P. Act No.17 of 1986. The same is reproduced
hereunder:-



6. For section 73, of the principal

Act, the following section shall be

substituted, namely:-

73 (1) Every public officer or any

person having in his custody any registers,

books, records, papers, documents or

proceedings, the inspection whereof may

attend to secure any duty, or to prove or

lead to the discovery of any fraud or

omission in relation to any duty, shall at all

reasonable times permit any person

authorized in writing by the Collector to

enter upon any premises and to inspect for

such purposes the registers, books, records,

papers, documents and proceedings, and to

take such notes and extracts as he may

deem necessary, without fee or charge and if

necessary to seize them and impound the

same under proper acknowledgement:

  Provided that such seizure of any

registers, books, records, papers, documents

or other proceedings, in the custody of any

Bank be made only after a notice of thirty

days to make good the deficit stamp duty is

given.

  Explanation : - For the purposes of

this proviso 'bank' means a banking

company as defined in section 5 of the

Banking Regulation Act, 1949 and includes

the State Bank of India, constituted by the

State Bank of India Act, 1955 a subsidiary

bank as defined in the State Bank of India

(Subsidiary Banks) Act, 1959, a

corresponding new bank as defined in the

Banking Companies (Acquisition and Transfer

of Undertaking) Act, 1970 and in the

Banking Companies (Acquisition and Transfer

of Undertakings) Act, 1980, a Regional Rural

Bank established under the Regional Rural

Banks Act, 1976, the Industrial Development

Bank of India established under the

Industrial Development Bank of India Act,

1964, National Bank for Agriculture and

Rural Development established under the

National Bank for Agriculture and Rural

Development Act, 1981, the Life Insurance

Corporation of India established under the

Life Insurance Corporation Act, 1956, The

Industrial Finance Corporation of India

established under the Industrial Finance

Corporation Act, 1948, and such other

financial or banking institution owned,

controlled or managed by a State

Government or the Central Government, as

may be notified in this behalf by the

Government.

  (2) Every person having in his

custody or maintaining such registers,

books, records, papers, documents or

proceedings shall, when so required by the

officer authorized under sub-section (1),

produce them before such officer and at all

reasonable times permit such officer to

inspect them and take such notes and

extracts as he may deem necessary.

(3) If, upon such inspection, the

person so authorized is of opinion that any

instrument is chargeable with duty and is not

duly stamped, he shall require the payment

of the proper duty or the amount required to

make up the same from the person liable to

pay the stamp duty; and in case of default

the amount of the duty shall be recovered as

an arrear of land revenue.

The Statement of Objects and Reasons states that the Government have been
considering for quite some time the question of plugging the loopholes in the
Indian Stamp Act, 1899 in its application to this State so as to arrest the
leakage of stamp revenue and also to augment the stamp revenue in the State. The
State of Andhra Pradesh in doing so was inspired by the amendments made in the
State of Karnataka. As to Section 73 the SOR states "As per Section 73 of the
said Act, the Collector or any person authorized by him shall inspect any public
office and the public officer having in his custody any registers, books,
records etc., shall permit him to take copies of extracts of those records.
However, the inspecting officer cannot seize the deficitly stamped documents and
impound the same during inspection. On account of this loophole, the inspecting
officers are not able to seize and impound the deficitly stamped documents and
collect the deficit stamp revenue. It has therefore been decided to empower the
Inspecting Officers to enter any premises and seize the documents and impound
them."

[For a detailed Statement of Objects and Reasons see The Andhra Pradesh Gazette
Extraordinary Part IV-A dated March 20, 1986 pp. 9  11.]

The A.P. State Rules (1986)

In exercise of the powers conferred by Section 75 of the Indian Stamp Act, 1899
and of all other powers hereunto enabling and in supersession of the earlier
rules the Governor of Andhra Pradesh framed rules for the collection of duties
secured in the course of inspection under Section 73 of the Indian Stamp (Andhra
Pradesh Amendment) Act, 1986 which rules came into force on the 16th day of
August, 1986. The relevant part of the rules is extracted and reproduced
hereunder:

1. In these rules unless the context otherwise

requires:-

(a) 'Act' means, the Indian Stamp (A.P.

Amendment) Act, 1986.

(b) "Inspector-General of Registration and

Stamps" includes the person authorized in writing by him as the Collector
appointed under section 73 of the Act to exercise the powers under that Section.

(c) 'Head of Office' means, the head of the

Office inspected by the Inspector General of

Registration and Stamps under section 73.

(d) 'Section' means a section of the Act.

(e) 'Any premises' includes any public office

or any place where registers, books, documents etc., are kept under the custody
of a person the

inspection whereof may tend to secure any duty.

2. (1) The notes of inspection under

section 73 shall be sent to the Head of office with a copy to the Head of the
District office, if the office inspected is subordinate to him, or with a copy
to the Head of the Department concerned, if the office inspected is the District
or Regional Office.

(2) The first reports of compliance shall be

sent to the Inspector General of Registration and Stamps, immediately on receipt
of the notes of

inspection by the Head of Office, with a copy to the Head of the District Office
concerned, if the office inspected is subordinate to him or with a copy to the
Head of the Department, if the office inspected is a District or Regional
Office.

3. When deficitly stamped documents are

detected during the course of inspection the

following procedure shall be followed:-

 (i) The Inspector General of Registration and

Stamps or the person authorized by him shall seize and impound such documents
and after giving an opportunity to the parties levy deficit duties if any,
without penalty and collect the same from the

persons liable to pay under sub-section (3) of the section 73 and add the
following certificate on the original document:-

xxx xxx xxx

(ii) If the parties fail to pay the deficit duty under sub-rule (i), it shall be
collected by the head of office. The amounts so collected shall be remitted to
the Treasury under the following head of account by means of a challan.

xxx xxx xxx

(iii) If the parties failed to pay such deficit duties, the Inspector General of
Registration and Stamps shall forward the original document to the Collector
exercising powers under section 48 of the Indian Stamp Act, 1899 over the area
for effecting recovery by coercive process. After the amounts are so collected,
the procedure laid down in sub-rule (i) shall be followed.

(iv) In the absence of original documents,

and on the basis of copies of such documents, if they are found to be not duly
stamped, the procedure for collection of the duty as laid down in rule (iii)
shall be followed :

4. If the parties are aggrieved by the levy

of duties they may apply to the Inspector General of Registration and Stamps for
revision before the certificate prescribed under rule 3 is added.

5. xxx xxx xxx

6. xxx xxx xxx

[For full text of Rules see Andhra Pradesh Gazette, Rules supplement to Part-II
Extraordinary dated August 14, 1986 pp. 4-77.]

The Challenge

There were 25 writ petitions filed in the High Court. Out of these, 11 were by
different banks. A few writ petitions were filed by institutions, corporate or
incorporate bodies and a few were filed by sugar companies. The grievances arose
because the documents executed between private parties and received and retained
in the custody of the bank in ordinary course of their loan advancing
transactions were inspected and then the banks were served with a request to
remit the amount of deficit duty on the documents inspected and to recover the
same from the parties concerned. The grievance of the sugar companies is that in
the course of their business they were entering into agreements with the
sugarcane growers selling sugarcane to the sugar companies in compliance with
the provisions of A.P. Sugarcane Control Order, 1965 in the proforma prescribed
by Control Order. Several agreements entered into in the prescribed proforma
were treated as unstamped (though they were not liable to be stamped, in the
submission of sugar companies) and therefore were sought to be impounded. The
grievance of private persons is that the documents in their possession are
sought to be inspected, impounded and levied with duty though they were not
tendered in evidence nor produced before any public office.

A perusal of the judgment of the High Court shows that in holding the impugned
Section 73 of the Act ultra vires of the Constitution and other provisions of
the Indian Stamp Act, the High Court has arrived at four findings: firstly, that
the amended Section 73 is inconsistent with the other provisions of the Act;
secondly, that the provision is violative of the principles of natural justice;
thirdly, the provision is arbitrary and unreasonable and hence violative of
Article 14 of the Constitution; and fourthly, there are no guidelines provided
for the exercise of power by the authorized persons under the amended Section 73
which is either arbitrary and unreasonable or vitiated on account of excessive
delegation of statutory powers.

  During the course of hearing Mrs. K. Amareswari, the learned senior counsel
for the appellants has vehemently attacked the correctness of the impugned
judgment submitting that the A.P. Amendments are directed towards safeguarding
the revenue of the State and striking at the evil of stamp duty evasion, and
therefore the validity of such reasonable legislation was not liable to be
questioned as unconstitutional. On the other hand, the learned counsel appearing
for the respondents have defended the judgment of the High Court by reiterating
the same grounds of attack on the constitutional validity of the impugned
amendment as were urged in the High Court; of course enlarging the reach of
submissions by developing the dimensions thereof. We will deal with the
submissions so made before us.

Nature of stamp legislation

 Stamp Act is a piece of fiscal legislation. Remedial statutes and statutes
which have come to be enacted on demand of the permanent public policy generally
receive a liberal interpretation. However, fiscal statutes cannot be classed as
such, operating as they do to impose burdens upon the public and are, therefore,
construed strictly. A few principles are well settled while interpreting a
fiscal law. There is no scope for equity or judiciousness if the letter of law
is clear and unambiguous. The benefit of any ambiguity or conflict in different
provisions of statute shall go for the subject. In Dowlatram Harji & Anr. Vs.
Vitho Radhoti & Anr., (1881) 5 ILR (Bom) 188, the Full Bench indicated the need
for balancing the harshness which would be inflicted on the subjects by
implementation of the Stamp Law as against the advantage which would result in
the form of revenue to the State; the latter may not be able to compensate the
discontent which would be occasioned amongst the subjects.

 The legislative competence of the State of Andhra Pradesh to amend and modify
the Indian Stamp Act, a Central legislation, in its applicability to the State
of Andhra Pradesh, has not been questioned and rightly so in view of the State
enactment having been reserved for the consideration of the President and having
received his assent under Article 254(2) of the Constitution. The attack is on
the ground of unreasonableness, inconsistency and excessive delegation of powers
and also on account of drastic powers having been conferred on executive
authorities without laying down guidelines.

 The provisions of Section 29 providing for the persons by whom duties are
payable have been left untouched. So is with Section 31 dealing with
'adjudication as to proper stamp' which confers power on the Collector to
adjudicate upon the duty with which a document shall be chargeable, though such
document may or may not have been executed. The scheme of Section 31 involves an
element of voluntariness. The person seeking adjudication must have brought the
document to Collector and also applied for such adjudication. The document
cannot be compelled to be brought before him by the Collector. Section 33
confers power of impounding a document not duly stamped subject to the document
being produced before an authority competent to receive evidence or a person
incharge of a public office. It is necessary that the document must have been
produced or come before such authority or person incharge in performance of its
functions. The document should have been voluntarily produced. At the same time,
Section 36 imposes an embargo on the power to impound, vesting in the authority
competent to receive evidence, by providing that it cannot question the
admission of document in evidence once it has been admitted. None of these
provisions have been amended by the State of Andhra Pradesh.

 In Surajmull Nagoremull Vs Triton Insurance Co. Ltd., AIR 1925 PC 83, their
Lordships of the Privy Council made it clear that the provisions of the Stamp
Act cannot be held to have been framed solely for the protection of revenue and
for the purpose of being enforced solely at the instance of the revenue
officials.

 Power to impound a document and to recover duty with or without penalty thereon
has to be construed strictly and would be sustained only when falling within the
four corners and letter of the law. This has been the consistent view of the
Courts. Illustratively, three decisions may be referred. In Mussammat Jai Devi
Vs. Gokal Chand, 1906 (7) PLR 428, a document not duly stamped was produced in
the Court by the plaintiff alongwith the plaint but the suit came to be
dismissed for non-prosecution. It was held by the Full Bench that the document
annexed with the plaint cannot be said to have been produced in the Court in
evidence and the court had no jurisdiction to call for the same and impound it.
In Munshi Ram Vs. Harnam Singh, AIR 1934 Lahore 637(1), the suit was compromised
on the date of first hearing and decree was passed based on the compromise. The
original entry in a bahi was not put in evidence and, therefore, the Special
Bench held it was not liable to be impounded. In L. Puran Chand, Proprietor,
Dalhousie Dairy Farm Vs. Emperor, AIR 1942 Lahore 257, the power to impound was
sought to be exercised after the decision in the suit and when the document
alleged to be not duly stamped had already been directed to be returned as not
proved though it was not physically returned. The Special Bench held that the
document was not available for being impounded.

 Though an instrument not duly stamped may attract criminal prosecution under
Section 62 of the Act but the Parliament and the Legislature have both treated
it to be a minor offence punishable with fine only and not cognizable. Here
again it is well settled that such offence is liable to be condoned by payment
of duty and penalty on the document and no prosecution can be launched except in
the case of a criminal intention to evade the Stamp Law or in case of a fraud
and that too after giving the person liable to be proceeded against, an
opportunity of being heard.

A bare reading of Section 73 as substituted by A.P. Act No.17 of 1986 indicates
the infirmities with which the provision suffers. The provision empowers any
person authorized in writing by the Collector to have access to documents in
private custody or custody of a public officer without regard to the fact
whether the documents are sought to be used before any authority competent to
receive evidence and without regard to the fact whether such document would ever
be voluntarily produced or brought before a public officer during the
performance of any of his specified functions in his capacity as such. The power
is capable of being exercised by such persons at all reasonable times and it is
not preceded by any requirement of the reasons being recorded by the Collector
or the person authorized for his belief necessitating search. The person
authorized has been vested with authority to impound the document. It is only in
case of documents in custody of any bank that an exception has been carved out
for giving a 30 days previous notice to the bank to make good the deficit stamp
duty before seizing and impounding the document. Not only there is no valid
reason ? none pointed out either in the pleadings nor at the hearing ___ for
drawing the distinction between a bank and other public office or any person
having custody of document. Even in the case of a bank, the power to adjudicate
upon the need for impounding the document has been vested in the person
authorized. The provision does not lay down any guidelines for determining the
person who can be authorized by the Collector to exercise the powers conferred
by Section 73.

 It is submitted on behalf of the respondents (writ petitioners in the High
Court) that impugned Section 73 (as applicable in Andhra Pradesh) interferes
with the personal liberty of citizens inasmuch as it allows an intrusion into
the privacy and property of the citizens. The instruments may have been kept in
the residential accommodation of a person or may have been kept at a place
belonging to the person and meant for the custody of the documents and both such
places can be entered into by any person authorized in writing by the Collector.
It was submitted that the provision is unreasonable and cannot be sustained on
the constitutional anvil.

Right of privacy qua search and seizure - debate in other countries.

 The right to privacy and the power of the State to 'search and seize' have been
the subject of debate in almost every democratic country where fundamental
freedoms are guaranteed. History takes us back to Semayne's case decided in 1603
(5 Coke's Rep. 91a) (77 Eng. Rep. 194) (KB) where it was laid down that 'Every
man's house is his castle'. One of the most forceful expressions of the above
maxim was that of William Pitt in the British Parliament in 1763. He said: "The
poorest man may in his cottage bid defiance to all the force of the Crown. It
may be frail - its roof may shake - the wind may blow through it - the storm may
enter, the rain may enter - but the King of England cannot enter - all his force
dare not cross the threshold of the ruined tenement".

 When John Wilkes attacked not only governmental policies but the King himself
pursuant to general warrants, State officers raided many homes and other places
connected with John Wilkes to locate his controversial pamphlets. Entick, an
associate of Wilkes, sued the State officers because agents had forcibly broken
into his house, broke locked desks and boxes, and seized many printed charts,
pamphlets and the like. In a landmark judgment in Entick v. Carrington: (1765)
(19 Howells' State Trials 1029) (95 Eng Rep 807), Lord Camden declared the
warrant and the behaviour as subversive 'of all the comforts of society' and the
issuance of a warrant for the seizure of all of a person's papers and not those
only alleged to be criminal in nature was 'contrary to the genius of the law of
England'. Besides its general character, the warrant was, according to the
Court, bad inasmuch as it was not issued on a showing of probable cause and no
record was required to be made of what had been seized. In USA, in Boyd v.
United States (1886) 116 US 616 (626), the US Supreme Court said that the great
Entick judgment was 'one of the landmarks of English liberty.. one of the
permanent monuments of the British Constitution'.

 The Fourth Amendment in the US Constitution was drafted after a long debate on
the English experience and secured freedom from unreasonable searches and
seizures. It said:

 "The right of the people to be secure in their

person, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated and no Warrants shall
issue, but upon

probable cause, supported by oath or affirmation, and particularly describing
the place to be

searched, and the persons or things to be seized."

Art. 12 of the Universal Declaration of Human Rights (1948) refers to privacy
and it states:

"No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence nor to attacks upon his honour and reputation.

Everyone has the right to the protection of the law against such interference or
attacks."

Art. 17 of the International Covenant of Civil and Political Rights (to which
India is a party), refers to privacy and states that:

"No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home and correspondence, nor to unlawful attacks on his

honour and reputation."

 The European Convention on Human Rights, which came into effect on Sept. 3,
1953, also states in Art. 8:

"1. Everyone has the right to respect for his private and family life, his home
and his

correspondence.

2. There shall be no interference by a public

authority except such as is in accordance with law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the

protection of health or morals or for the protection of the rights and freedoms
of others."

    The Canadian Charter of Rights and Freedoms declares: 'Everyone has the
right to be secure against unreasonable search and seizure.'

 The New Zealand Bill of Rights declares in sec. 21 that "everyone has the right
to be secure against unreasonable search or seizure, whether of the person,
property or correspondence or otherwise".

 Though the US Constitution contains a specific provision in the Fourth
Amendment against 'unreasonable search and seizure', it does not contain any
express provision protecting the 'right to privacy'. However, the US Supreme
Court has culled out the 'right of privacy' from the other rights guaranteed in
the US Constitution. In India, our Constitution does not contain a specific
provision either as to 'privacy' or even as to 'unreasonable' search and
seizure, but the right to privacy has, as we shall presently show, been spelt
out by our Supreme Court from the provisions of Arts. 19(1)(a) dealing with
freedom of speech and expression, Art. 19(1)(d) dealing with right to freedom of
movement and from Art. 21 which deals with right to life and liberty. We shall
first refer to the case law in US relating to the development of the right of
privacy as these cases have been adverted to in the decisions of this Court.

Privacy right in US initially concerned 'property':

 The American Courts trace the 'right to privacy' to the English common law
which treated it as a right associated with 'right to property'. It was declared
in Entick v. Carrington (1765) that the right of privacy protected trespass
against property. Lord Camden observed:

"The great end for which men entered into society was to secure their property.
That right is

preserved sacred and incommunicable in all

instances where it has not been taken away or

abridged by some public law for the good of the whole. By the laws of England,
every invasion of private property, be it even so minute, is a trespass. No man
can set foot upon my ground

without my licence but he is liable to an action though the damage be nothing."

This aspect of privacy as a property right was accepted by the US Supreme Court
in Boyd v. United States (1886) 116 US 616 (627) and other cases.

From right to property to right to person:

 After four decades, in Olmstead vs. United States (1928) 277 US 438, which was
a case of wire-tapping or electronic surveillance and where there was no actual
physical invasion, the majority held that the action was not subject to Fourth
Amendment restrictions. But, in his dissent, Justice Brandeis, stated that the
Amendment protected the right to privacy which meant 'the right to be let
alone', and its purpose was 'to secure conditions favourable to the pursuit of
happiness', while recognizing 'the significance of man's spiritual nature, of
his feelings and of his intellect'; the right sought 'to protect Americans in
their beliefs, their thoughts, their emotions and their sensations'. The dissent
came to be accepted as the law after another four decades.

 When the right to personal privacy came up for consideration in Griswold v.
State of Connecticut: (1965) 381 US 278), in the absence of a specific provision
in the US Constitution, the Court traced the right to privacy as an emanation
from the right to freedom of expression and other rights. In that case, Douglas,
J. observed that the right to freedom of speech and press included not only the
right to utter or to print, but also the right to distribute, the right to
receive, and the right to read and that without these peripheral rights, the
specific right would be less secure and that likewise, the other specific
guarantees in the Bill of Rights have penumbras, forced by emanations from those
guarantees which help give them life and substance. It was held that the various
guarantees created zones of privacy and that protection against all government
invasions "of the sanctity of man's house and the privacies of life" was
fundamental. The learned Judge stated that 'privacy is a fundamental personal
right, emanating from the totality of the constitutional scheme, under which we
(Americans) live'.

 The shift from property to person was clearly declared in Warden v. Heyden:
(1967) 387 US 294 (304) as follows:

" the premise that property interests control the right of the Government to
search and seize has been discredited.. We have recognized that the principal
object of the Fourth Amendment is the protection of privacy rather than
property, and have increasingly discarded fictional and

procedural barriers rested on property concepts."

Katz and 'reasonable expectation of privacy':

 Thereafter, in Katz v. United States (1967) 389 US 347, there was a clearer
enunciation when the majority laid down that the Fourth Amendment protected
'people and not places'. Harlan, J. in his concurring opinion said, - in a
passage which has been held to be the distillation of the majority opinion -
that the Fourth Amendment scrutiny would be triggered whenever official
investigative activity invaded 'a reasonable expectation of privacy'. Although
the phrase came from Justice Harlan's separate opinion, it is treated today as
the essence of the majority opinion (Terry v. Ohio (1968) 392 US 1. (See
Constitution and Criminal Procedure, First Principles by Prof. Akhil Amar, Yale
University Press (1997), p. 183 fn.42).

 Stevens, J. in Thornburgh v. American College of O & G (1986) 476 US 747
observed that 'the concept of privacy embodies the moral fact that a person
belongs to himself and not to others nor to society as a whole'. The same
learned Judge had said earlier in Whalen v. Roe (1977) 429 US 589 that the right
embraces both a general 'individual interest in avoiding disclosure of personal
matters' and a similarly general, - but nonetheless distinct - 'interest in
independence in making certain kinds of important decisions'. Fried says in
'Privacy' (1968) Yale Law Journal 475 (at 477) that physical privacy is as
necessary to 'relations of the most fundamental sort.respect, love, friendship
and trust' as 'oxygen is for combustion'. A commentator in (1976) 64 Cal L Rev
1447 says that privacy centres round values of repose, sanctuary and intimate
decision. Repose refers to freedom from unwanted stimuli; sanctuary to
protection against intrusive observation; and intimate decision, to autonomy
with respect to the most personal of life's choices. (Prof. Lawrence H. Tribe's
treatise, 'American Constitutional Law', (1988), 2nd Ed, ch.15)

 Prof. Tribe says (ibid, p 1306) that to make sense for constitutional law out
of the smorgasbord of philosophy, sociology, religion and history upon which our
understanding of humanity subsists, we must turn from absolute propositions and
dichotomies so as to place each allegedly protected act and each illegitimate
intrusion, in a social context related to the Constitution's test and structure.
He says (p 1307) that 'exclusion of illegitimate intrusions into privacy depends
on the nature of the right being asserted and the way in which it is brought
into play; it is at this point that context becomes crucial - to inform
substantive judgment'. If these factors are relevant for defining the right to
privacy, they are quite relevant - whenever there is invasion of that right by
way of searches and seizures at the instance of the State. In New Zealand, in
the watershed case of R v. Jeffries (1994) (1) NZLR 290 (CA), Robertson, J.
stated that the reasonableness of a search and seizure would depend upon the
subject  matter and the unique combination of 'time, place and circumstances'.
The Court made a distinction between illegality and reasonableness of the search
or seizure, in the context of sec. 21 of the N.Z. Bill of Rights, 1990. It said
'a search may be legal but unreasonable; it may be illegal but reasonable'.
Probably, what was meant was that a search under a Court warrant may be lawful
but the manner in which it is executed may be unreasonable. Likewise, there may
be very rare exceptions where a search and seizure operation is conducted
without a warrant on account of a sense of grave urgency for preventing danger
to life or property or where delay in procuring a warrant may indeed result in
the evidence vanishing but still the search or seizure might have been conducted
in a reasonable manner.

 As to privacy of the home, the same has been elaborated. Chief Justice Burger
stated in United States v. Orito: (1973) 413 US 139 that the Constitution
extends special safeguards to the privacy of the home, just as it protects other
special privacy rights such as those of marriage, procreation, motherhood,
childbearing and education. Prof. Tribe states (p. 1412) that indeed, privacy of
the home has the longest constitutional pedigree of the lot, "for the sanctity
of the home has been embedded in our traditions since the origins of the
Republic"; when we retreat across the threshold of the home, inside, the
government must provide escalating justification if it wishes to follow, monitor
or control us there. In Stanley v. Georgia: (1969)394 US 557 it was declared
that however free the State may be to ban the public dissemination of
constitutionally unprotected obscene materials, the State cannot criminalize the
purely private possession of such material at home - "The state has no business
telling a man sitting alone in his own house, what books he may read or what
films he may watch".

 The above discussion shows that in the United States principles regarding
protection of privacy of the home have been put on strong basis and the right is
treated as a personal right distinct from a right to property. The right is,
however, not absolute though any intrusion into the right must be based upon
probable cause as stated in the Fourth Amendment.

 Intrusion into privacy may be by - (1) legislative provisions, (2)
administrative/executive orders and (3) judicial orders. The legislative
intrusions must be tested on the touchstone of reasonableness as guaranteed by
the Constitution and for that purpose the Court can go into the proportionality
of the intrusion vis- `-vis the purpose sought to be achieved. (2) So far as
administrative or executive action is concerned, it has again to be reasonable
having regard to the facts and circumstances of the case. (3) As to Judicial
warrants, the Court must have sufficient reason to believe that the search or
seizure is warranted and it must keep in mind the extent of search or seizure
necessary for the protection of the particular state interest. In addition, as
stated earlier, common law recognized rare exceptions such as where warrantless
searches could be conducted but these must be in good faith, intended to
preserve evidence or intended to prevent sudden danger to person or property.

Development of law in India:

 The earliest case in India to deal with 'privacy' and 'search and seizure' was
M.P. Sharma v. Satish Chandra (1954 SCR 1077) in the context of Art. 19(1)(f)
and Art. 20(3) of the Constitution of India. The contention that search and
seizure violated Art. 19(1)(f) was rejected, the Court holding that a mere
search by itself did not affect any right to property, and though seizure
affected it, such effect was only temporary and was a reasonable restriction on
the right. The question whether search warrants for the seizure of documents
from the accused were unconstitutional was not gone into. The Court, after
referring to American authorities, observed that in US, because of the language
in the Fourth Amendment, there was a distinction between legal and illegal
searches and seizures and that such a distinction need not be imported into our
Constitution. The Court opined that a search warrant was addressed to an officer
and not to the accused and did not violate Art. 20(3). In the present discussion
the case is of limited help. In fact, the law as to privacy was developed in
latter cases by spelling it out from the right to freedom of speech and
expression in Art 19(1)(a) and the right to 'life' in Art. 21. Two latter cases
decided by the Supreme Court of India where the foundations for the right were
laid, concerned the intrusion into the home by the police under State
regulations, by way of 'domiciliary visits'. Such visits could be conducted any
time, night or day, to keep a tag on persons for finding out suspicious criminal
activity, if any, on their part. The validity of these regulations came under
challenge. In the first one, Kharak Singh v. State of UP, 1964(1) SCR 332, the
UP Regulations regarding domiciliary visits were in question and the majority
referred to Munn v. Illinois (1876) 94 US 113 and held that though our
Constitution did not refer to the right to privacy expressly, still it can be
traced from the right to 'life' in Art. 21. According to the majority, Clause
236 of the relevant Regulations in UP, was bad in law; it offended Art. 21
inasmuch as there was no law permitting interference by such visits. The
majority did not go into the question whether these visits violated the 'right
to privacy'. But, Subba Rao J while concurring that the fundamental right to
privacy was part of the right to liberty in Art. 21, part of the right to
freedom of speech and expression in Art. 19(1)(a), and also of the right to
movement in Art. 19(1)(d), held that the Regulations permitting surveillance
violated the fundamental right of privacy. In the discussion the learned Judge
referred to Wolf v. Colorado: (1948) 338 US 25. In effect, all the seven learned
Judges held that the 'right to privacy' was part of the right to 'life' in Art.
21.

 We now come to the second case, Govind v. State of MP [1975] 2 SCC 148, in
which Mathew, J. developed the law as to privacy from where it was left in
Kharak Singh. The learned Judge referred to Griswold v. Connecticut (1965) 381
US 479 where Douglas, J. referred to the theory of penumbras and peripheral
rights and had stated that the right to privacy was implied in the right to free
speech and could be gathered from the entirety of fundamental rights in the
constitutional scheme, for, without it, these rights could not be enjoyed
meaningfully. Mathew, J. also referred to Jane Roe v. Henry Wade (1973) 410 US
113 where it was pointed out that though the right to privacy was not
specifically referred to in the US Constitution, the right did exist and "roots
of that right may be found in the First, Fourth and Fifth Amendments, in the
penumbras of the Bill of rights, in the Ninth Amendment, and in the concept of
liberty guaranteed by the first section of the Fourteenth Amendment'. Mathew, J.
stated that, however, the 'right to privacy was not absolute' and that the
makers of our Constitution wanted to ensure conditions favourable to the pursuit
of happiness as explained in Olmstead v. United States (1927) 277 US 438 (471);
the privacy right can be denied only when an 'important countervailing interest
is shown to be superior', or where a compelling State interest was shown.
(Mathew, J. left open the issue whether moral interests could be relied upon by
the State as compelling interests). Any right to privacy, the learned Judge
said, (see para 24) must encompass and protect the personal intimacies of the
home, the family, marriage, motherhood, procreation and child bearing. This list
was however not exhaustive. He explained (see para 25) that, if there was State
intrusion there must be 'a reasonable basis for intrusion'. The right to
privacy, in any event, (see para 28) would necessarily have to go through a
process of case-by-case development.

 Coming to the particular UP Regulations 855 and 856, in question in Govind,
Mathew, J. examined their validity (see para 30). These, according to him, gave
large powers to the police and needed, therefore, to be read down, so as to be
in harmony with the Constitution, if they had to be saved at all. 'Our founding
fathers were thoroughly opposed to a Police Raj!' he said. Therefore, the Court
must draw boundaries upon these police powers so as to avoid breach of
constitutional freedoms. While it could not be said that all domiciliary visits
were unreasonable (see para 31), still while interpreting them, one had to keep
the character and antecedents of the person who was under watch as also the
objects and limitations under which the surveillance could be made. The right to
privacy could be restricted on the basis of compelling public interest. The
learned Judge noticed that unlike non-statutory regulations in Kharak Singh,
here Regulation 856 was 'law' (being a piece of subordinate legislation) and
hence it could not be said in this case that Art.21 was violated for lack of
legislative sanction. The law was very much there in the form of these
Regulations. Regulations 853(1) and 857 prescribed a procedure that was
'reasonable'. So far as Regulation 856 was concerned, it only imposed reasonable
restrictions within Art. 19(5) and there was, even otherwise, a compelling State
interest. Regulations 853(1) and 857 referred to a class of persons who were
suspected as being habitual criminals, while Regulation 857 classified persons
who could reasonably be held to have criminal tendencies. Further Regulation
855, empowered surveillance only of persons against whom reasonable materials
existed for the purpose of inducing an opinion that they show a determination to
lead a life of crime. The Court thus read down the Regulations and upheld them
for the above reasons.

 We have referred in detail to the reasons given by Mathew, J. in Govind to show
that, the right to privacy has been implied in Art. 19(1)(a) and (d) and Art.
21; that, the right is not absolute and that any State intrusion can be a
reasonable restriction only if it has reasonable basis or reasonable materials
to support it.

 A two-judges Bench in R. Rajagopal Vs. State of Tamil Nadu (1994) 6 SCC 632
held the right of privacy to be implicit in the right to life and liberty
guaranteed to the citizens of India by Article 21. "It is the right to be let
alone". Every citizen has a right to safeguard the privacy of his own. However,
in the case of a matter being part of public records, including court records,
the right of privacy cannot be claimed. The right to privacy has since been
widely accepted as implied in our Constitution, in other cases, namely, PUCLVs.
Union of India, (1997) 1 SCC 301; Mr. X Vs. Hospital 'Z', (1998) 8 SCC 296;
People's Union for Civil Liberties Vs. Union of India, (2003) 4 SCC 399; Sharda
Vs. Dharmpal, (2003) 4 SCC 4931.

The impugned provision of the A.P. Amendment on anvil : It is in the background
of the above, the validity of sec. 73 of the Stamp Act, 1899 falls to be
decided.

 The text of Sec.73 Indian Stamp Act and the text as amended in its application
to State of A.P. have been set out in the earlier part of the judgment.

 It will be seen that under sec.73, the Collector could inspect the 'registers,
books, records, papers, documents or proceedings' in the public office.
Obviously, this meant that the inspection must relate to 'public documents' in
the custody of the public officer or to public record of private documents
available in his office. The inspection could be carried out only by a person
authorized __ in writing __ by the Collector. The purpose of inspection has to
be specific and has to be based upon a belief that (i) such inspection may tend
to secure any (stamp) duty, or (ii) it may tend to prove any fraud or omission
in relation to any duty or (iii) it may tend to lead to the discovery of any
fraud or omission in relation to any duty.

 The above provisions have remained in sec. 73 even after the A.P. Amendment of
1986. The validity of the unamended provisions of sec.73 of the Stamp Act, 1899
is not in issue before us. It is a pre- constitutional law. It is obvious that
in its operation after the commencement of the Constitution, even the unamended
sec.73 must conform to the provisions of Part III of our Constitution.

 When public record in the Sub-Registrar's Office or a Bank or for that matter
any other public office is inspected for the purposes referred to in the
impugned sec.73, the public officer may indeed have no objection for such
inspection. But, as in the case before us, in the context of a Bank which either
holds the private documents of its customers or copies of such private
documents, the question arises whether disclosure of the contents of the
documents by the Bank would amount to a breach of confidentiality and would,
therefore, be violative of privacy rights of its customers?

Bank and its customers __ confidentiality of relationship

 It cannot be denied that there is an element of confidentiality between a Bank
and its customers in relation to the latter's banking transactions. Can the
State have unrestricted access to inspect and seize or make roving inquiries
into all Bank records, without any reliable information before it prior to such
inspection? Further, can the Collector authorize 'any person' whatsoever to make
the inspection, and permit him to take notes or extracts? These questions arise
even in relation to the sec.73 and have to be decided in the context of privacy
rights of customers.

  There has been a great debate in the US about privacy in respect of Bank
records and inspection thereof by the State. In United States Vs. Miller, (1976)
425 US 435, the majority of the Court laid down that once a person passes on
cheques etc. to a Bank, which indeed is in a position of a third party, the
right to privacy of the document is no longer protected. In that case, the
respondent, who had been charged with various federal offences, made a pre-trial
motion to suppress microfilms of cheques, deposit slips and other records
relating to his accounts with two Banks, which maintained records relating to
(US) Bank Secrecy Act, 1970. He contended that the subpoenas duces tecum
pursuant to which the material had been produced by the Banks, were defective
and that the records had thus been illegally seized in violation of the Fourth
Amendment. The request was denied by the trial Court, the Respondent was tried
and convicted. The Court of Appeals reversed, holding that the subpoened
documents fell within the constitutionally protected zone of privacy. On further
appeal, the US Supreme Court restored the conviction holding that, once the
documents reached the hands of a third party, namely, the Bank, the Respondent
ceased to possess any Fourth Amendment interest in the Bank records that could
be vindicated by a challenge to the subpoenas, that the materials were business
records of the banks and not the respondents' private papers; that, there was no
legitimate 'expectation of privacy' (as stated in Katz) in the contents of the
original cheques and deposit slips, since the cheques were "not confidential
communications" but negotiable instruments to be used in commercial transactions
and the documents contained only information voluntarily conveyed to the Banks
which was exposed to the employees in the ordinary course of business. The Court
laid down a new principle of "assumption of risk". It said the "depositor takes
the risk, in revealing his affairs to another". The Court declared that the
Fourth Amendment did not prohibit the obtaining of information revealed to a
third party and conveyed by that party to government authorities. Once the
person who had the privacy right "assumed the risk" of the information being
conveyed to the outside world by the Bank, he could make no kind of complaint.

 The above decision led to a serious criticism by jurists (See 'A' below) that
the broad proposition, namely, that once a person conveyed confidential
documents to a third party, he would lose his privacy rights, was wrong and was
based on the old concept of treating the right of privacy as one attached to
property whereas the Court had, in Katz accepted that the privacy right
protected 'individuals and not places'; Congress came forward with the Right to
Financial Privacy Act, 1978 (Pub L No.95-630) which provided several safeguards
to secure privacy, __ namely __ requiring reasonable cause and also enabling the
customer to challenge the summons or warrant in a Court of law before it could
be executed; (See (B) below) (We do not mean to say that any law which is not on
those lines is invalid. Indian laws such as s.132 etc. of the Indian Income Tax
Act, 1961; or secs. 91, 165 and 166 of the Criminal Procedure Code, 1973 as to
search and seizure have, as stated below, been extensively considered by the
Courts in India and have been held to be valid).

(A) Criticism of Miller: (i) The majority in Miller laid down that a customer
who has conveyed his affairs to another had thereby lost his privacy rights. (i)
Prof. Tribe states in his treatise (see p.1391) that this theory reveals
'alarming tendencies' because the Court has gone back to the old theory that
privacy is in relation to property while it has laid down that the right is one
attached to the person rather than to property. If the right is to be held to be
not attached to the person, then 'we would not shield our account balances,
income figures and personal telephone and address books from the public eye, but
might instead go about with the information written on our 'foreheads or our
bumper stickers'. He observes that the majority in Miller confused 'privacy'
with 'secrecy' and that "even their notion of secrecy is a strange one, for a
secret remains a secret even when shared with those whom one selects for one's
confidence". Our cheques are not merely negotiable instruments but yet the world
can learn a vast amount about us by knowing how and with whom we have spent our
money. Same is the position when we use the telephone or post a letter. To say
that one assumes great risks by opening a bank account appeared to be a wrong
conclusion. Prof. Tribe asks a very pertinent question (p. 1392):

"Yet one can hardly be said to have assumed a risk of surveillance in a context
where, as a practical matter, one had no choice. Only the most

committed - and perhaps civilly committable 

hermit can live without a telephone, without a bank account, without mail. To
say that one must take a bitter pill with the sweet when one licks a stamp is to
exact a highly constitutional price indeed for living in contemporary society".

He concludes (p. 1400):

"In our information-dense technological era, when living inevitably entails
leaving not just

informational footprints but parts of one's self in myriad directories, files,
records and computers, to hold that the Fourteenth Amendment did not

reserve to individuals some power to say when

and how and by whom that information and those

confidences were to be used, would be to

denigrate the central role that informational

autonomy must play in any developed concept of

the self."

(ii) Prof. Yale Kamisar (again quoted by Prof. Tribe) (p.1392) says: "It is
beginning to look as if the only way someone living in our society can avoid
'assuming the risk' that various intermediate institutions will reveal
information to the police is by engaging in drastic discipline, the kind of
discipline of life under totalitarian regimes".

  This reminds us of what Mathew, J. said in Govind, that we are not living in a
police-Raj.

       (iii) Richard Alexander, a jurist-lawyer in an article published in South
West University Law Review (1978) Vol.10 (pp.13-33), titled, 'Privacy, Banking
Records and Supreme Court: A Before and After Look at Miller', says:

 "The Supreme Court (in Miller) followed the

old property interest line of analysis under the Fourth Amendment, . . . . . .
such confidentiality is due to the longstanding recognition that the

information contained in such records is highly personal . . . . . In the light
of the liberty given to the government to inspect banking records through use of
administrative summonses, it is impossible to reconcile Miller with Katz and
Griswold . . . . . The United States Supreme Court rejected the

Katz's 'justifiable expectation of privacy' analysis and opted for a mechanical
'property interest'

analysis which is unwieldy in its application to twentieth century technology."

(iv) Polyviou G. Polyviou in his book 'Search and Seizure' (Duckworth, 1982) in
an exhaustive discussion on Miller (pp.67 to 71) concludes that "Miller, partly
through reliance on property considerations and partly through insensitive
application of a rigid 'misplaced confidence' doctrine, has brought about a
'highly questionable' gap in Fourth Amendment coverage".

(v) La Fave in his book 'Search and Seizure' (1978) (quoted by Polyviou) calls
the Miller decision as 'pernicious' and characterizes its reasoning as 'woefully
inadequate'.

(vi) Profs. Jackson and Tushnet in 'Comparative Constitutions Law' (2001) say
(p.404) that "in the USA the Fourth Amendment to the Constitution bars police
from conducting 'unreasonable' searches, but the Supreme Court has been willing
to stamp nearly every troublesome form of police activity as either not a search
or not unreasonable. Oddly enough, the Court has made the law in this area
nearly unintelligible . . . . . "

(vii) In this connection, two other articles, the 'Note, Government Access to
Bank Records' (1974) 83 Yale Law Journal 1439 and 'A Bank customer has no
reasonable expectation of Privacy of Bank Records', United States v. Miller: 14
San Diego L. Rev (1974) are also relevant. (quoted by Polyvious G. Polyviou
P.67)

(B) We shall next refer to the response by Congress to Miller. (As stated
earlier, we should not be understood as necessarily recommending this law as a
model for India). Soon after Miller, Congress enacted the 'Right to Financial
Privacy Act, 1978 (Public Law No.95-630) 12 USC with ss.3401 to 3422). The
statute accords customers of Banks or similar financial institutions, certain
rights to be notified of and a right to challenge the actions of government in
Court at an anterior stage before disclosure is made. Sec.3401 of the Act
contains 'definitions'. Sec. 3402 is important, and it says that 'except as
provided by sec. 3403(c) or (d), 3413 or 3414, - no Government authority may
have access to or obtain copies of, or the information contained in the
financial records of any customer from a financial institution unless the
financial records are reasonably described and that (1) such customer has
authorized such disclosure in accordance with sec. 3404; (2) such records are
disclosed in response to (a) administrative subpoenas or summons to meet
requirement of sec. 3405; (b) the requirements of a search warrant which meets
the requirements of sec.3406; (c) requirements of a judicial subpoena which
meets the requirement of sec. 3407 or (d) the requirements of a formal written
requirement under sec. 3408. If the customer decides to challenge the
Government's access to the records, he may file a motion in the appropriate US
District Court, to prevent such access. The Act also provides for certain
specific exceptions.

 While we are on (B), it is necessary to make a brief reference to sec. 93(1) of
the Code of Criminal Procedure, 1973 which deals with power of the Court to
issue 'search warrants' (a) where the Court has 'reason to believe' that a
person to whom a summons or order under sec.91 or a requisition under sec. 92(1)
has been, or might be, addressed, - will not or would not produce the document
or thing as required by summons or requisition, or (b) where such document or
thing is not known to the Court to be in the possession of any person, or (c)
where the Court considers that the purposes of any inquiry, trial or other
proceeding under the Code, will be served by a general search or inspection, it
may issue a search-warrant; and the person to whom such warrant is directed, may
search or inspect in accordance therewith and the provisions contained in the
Code. Under sec.93(2), the Court may, if it thinks fit, specify in the warrant,
the place or part thereof to which only the search or inspection shall extend;
and the person charged with the execution of such warrant shall then search or
inspect only the place or part so specified. Under sec.93(2), a warrant to
search for a document, parcel or other thing in the custody of the postal or
telegraph authority, has to be issued by the District Magistrate or Chief
Judicial Magistrate.

 Sec. 165 of the Code deals with the power of a police officer to search. Under
sec. 165(1) he must have reasonable grounds for believing that anything
necessary for the purpose of an investigation into any offence, which he is
authorized to investigate, may be found in any place within the limits of the
police station and that such thing cannot, in his opinion, be otherwise obtained
without undue delay. He has to record the grounds of his belief in writing and
specify, so far as possible, the thing for which search is made. Sec.166 refers
to the question as to when an officer-in-charge of a police station may require
another to issue search warrant.

 In the Income-tax Act, 1961 elaborate provisions are made in regard to 'search
and seizure in sec.132; power to requisition books of account etc. in sec. 132A;
power to call for information as stated in sec. 133. Sec. 133(6) deals with
power of officers to require any Bank to furnish any information as specified
there. There are safeguards. Sec.132 uses the words "in consequence of
information in his possession, has reason to believe". Sec. 132(1A) uses the
words "in consequence of information in his possession, has reason to suspect".
Sec. 132(13) says that the provisions of the Code of Criminal Procedure,
relating to searches and seizure shall apply, so far as may be, to searches and
seizures under sec. 132(1) and 132(1A). There are also Rules made under
sec.132(14). Likewise sec. 132A(1) uses the words "in consequence of information
in his possession, has reason to believe". Sec. 133 which deals with the power
to call for information from Banks and others uses the words "for the purpose of
this Act" and sec. 133(6) permits a requisition to be sent to a Bank or its
officer. There are other Central and State statutes dealing with procedure for
'search and seizure' for the purposes of the respective statutes.

 Under all these enactments, there are several judgments of this Court
explaining the scope of the provisions, and the safeguards provided by those
provisions while upholding their constitutional validity and pointing out their
limitations. It is not necessary in this case to refer to those judgments.
Suffice it to say that, in the present case we are concerned mainly with the
validity of sec. 73 of the Stamp Act, as amended in its application in 1986 in
A.P.

 Once we have accepted in Govind and in latter cases that the right to privacy
deals with 'persons and not places', the documents or copies of documents of the
customer which are in Bank, must continue to remain confidential vis-`-vis the
person, even if they are no longer at the customer's house and have been
voluntarily sent to a Bank. If that be the correct view of the law, we cannot
accept the line of Miller in which the Court proceeded on the basis that the
right to privacy is referable to the right of 'property' theory. Once that is
so, then unless there is some probable or reasonable cause or reasonable basis
or material before the Collector for reaching an opinion that the documents in
the possession of the Bank tend, to secure any duty or to prove or to lead to
the discovery of any fraud or omission in relation to any duty, the search or
taking notes or extracts therefore, cannot be valid. The above safeguards must
necessarily be read into the provision relating to search and inspection and
seizure so as to save it from any unconstitutionality.

 Secondly, the impugned provision in sec. 73 enabling the Collector to authorize
'any person' whatsoever to inspect, to take notes or extracts from the papers in
the public office suffers from the vice of excessive delegation as there are no
guidelines in the Act and more importantly, the section allows the facts
relating to the customer's privacy to reach non-governmental persons and would,
on that basis, be an unreasonable encroachment into the customer's rights. This
part of the Section 73 permitting delegation to 'any person' suffers from the
above serious defects and for that reason is, in our view, unenforceable. The
State must clearly define the officers by designation or state that the power
can be delegated to officers not below a particular rank in the official
hierarchy, as may be designated by the State.

 The A.P. amendment permits inspection being carried out by the Collector by
having access to the documents which are in private custody i.e. custody other
than that of a public officer. It is clear that this provision empowers invasion
of the home of the person in whose possession the documents 'tending' to or
leading to the various facts stated in sec. 73 are in existence and sec. 73
being one without any safeguards as to probable or reasonable cause or
reasonable basis or materials violates the right to privacy both of the house
and of the person. We have already referred to R. Rajagopal's case wherein the
learned judges have held that the right to personal liberty also means the life
free from encroachments unsustainable in law and such right flowing from Article
21 of the Constitution.

 In Smt. Maneka Gandhi Vs. Union of India & Anr., (1978) 1 SCC 248 ___ a
7-Judges Bench decision, P.N. Bhagwati, J. (as His Lordship then was) held that
the expression 'personal liberty' in Article 21 is of the widest amplitude and
it covers a variety of rights which go to constitute the personal liberty of man
and some of them have been raised to the status distinguishing as fundamental
rights and give additional protection under Article 19 (emphasis supplied). Any
law interfering with personal liberty of a person must satisfy a triple test:
(i) it must prescribe a procedure; (ii) the procedure must withstand the test of
one or more of the fundamental rights conferred under Article 19 which may be
applicable in a given situation; and (iii) it must also be liable to be tested
with reference to Article 14. As the test propounded by Article 14 pervades
Article 21 as well, the law and procedure authorizing interference with personal
liberty and right of privacy must also be right and just and fair and not
arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy
the requirement of Article 14 it would be no procedure at all within the meaning
of Article 21.

 The constitutional validity of the power conferred by law came to be decided
from yet another angle in the case of Air India Vs. Nergesh Meerza & Ors.,
(1981) 4 SCC 335, it was held that a discretionary power may not necessarily be
a discriminatory power but where a statute confers a power on an authority to
decide matters of moment without laying down any guidelines or principles or
norms, the power has to be struck down as being violative of Article 14.

 An instrument which is not duly stamped cannot be received in evidence by any
person who has authority to receive evidence and it cannot be acted upon by that
person or by any public officer. This is the penalty which is imposed by law on
the person who may seek to claim any benefit under an instrument if it is not
duly stamped. Once detected the authority competent to impound the document can
recover not only duty but also penalty, which provision, protects the interest
of revenue. In the event of there being criminal intention or fraud, the persons
responsible may be liable to be prosecuted. The availability of these
provisions, in our opinion adequately protects the interest of revenue.
Unbridled power available to be exercised by any person whom the Collector may
think proper to authorize without laying down any guidelines as to the persons
who may be authorized and without recording the availability of grounds which
would give rise to the belief, on the existence where of only, the power may be
exercised deprives the provision of the quality of reasonableness. Possessing a
document not duly stamped is not by itself any offence. Under the garb of the
power conferred by Section 73 the person authorized may go on rampage searching
house after house i.e. residences of the persons or the places used for the
custody of documents. The possibility of any wild exercise of such power may be
remote but then on the framing of Section 73, the provision impugned herein, the
possibility cannot be ruled out. Any number of documents may be inspected, may
be seized and may be removed and at the end the whole exercise may turn out to
be an exercise in futility. The exercise may prove to be absolutely
disproportionate with the purpose sought to be achieved and, therefore, a
reasonable nexus between stringency of the provision and the purpose sought to
be achieved ceases to exist.

 The abovesaid deficiency pointed out by the High Court and highlighted by the
learned counsel for the respondents in this Court has not been removed even by
the rules. The learned counsel for the respondents has pointed out that under
the Rules the obligation is cast on the bank or any other person having custody
of the documents though it may not be a party to the document, to pay the duty
payable on the documents in order to secure release of the documents.

 For the foregoing reasons we agree with the view taken by the High Court that
Section 73 of the Indian Stamp Act as amended in its application to the State of
Andhra Pradesh by Andhra Pradesh Act No. 17 of 1986 is ultra vires the
Constitution. As we do not find any infirmity in the judgment of the High Court
all the appeals are dismissed.