THE TAMIL NADU NATIONAL LAW SCHOOL,

TIRUCHIRAPPALLI.

ACADEMIC SESSION:
2016-2017

LAW OF EVIDENCE

PROJECT ON

Admissibility of illegally obtained evidence

SUBMITTED TO: SUBMITTED BY:

PROF. DEEPA MAICKAM KUSHAGRA TRIVEDI

TNNLS B.Com., LL.B. (HONS.)

Tiruchirappalli
ROLL NO. BC0140032

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Title Illegally Obtained Evidence: Admissibility and Developments in India.

Justification of Title The advent of the advance techniques of tracing the evidence has
posed threats to the basic human rights of individuals ranging from privacy to the malicious
prosecution and mishandling of the accused in the court. Democracy is also being threatened
through the rigging of elections and accusation based on telephone tapping with involvement
of politicians like Rajiv Gandhi. Therefore it becomes prominent for the judicial system to
acknowledge the evidence obtained illegally that is in breach of the basic structure of the
constitution and whether this (valid) evidence would be entertained in the judicial
proceedings or not.

Chapterization

1. INTRODUCTION
2. INDIAN APPROACH
3. APPROACH IN COMMON LAW
4. ARGUMENTS FOR EXCLUSION OF EVIDENCE
5. CONCLUSION

Research Question

To acknowledge the Indian approach towards the admissibility by examining the trend
in the decisions of the cases.
Comparative analysis to the common law
Understand the newly developed principles and doctrines in regard to the illegal
evidence

Research Methodology

The researcher will be following doctrinal research method and the relevant material for this
paper has been collected from the primary as well as secondary sources. The doctrinal
research is the research which deals with the laid principles or prepositions. It is more based
on the sources like books, case laws and online portals.

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Hypothesis

The hypothesis taken is that courts in India believe in the rules and procedure and without it
no justice can be granted due to which numerous situations arise where the perpetrator is held
not guilty. Therefore this belief should be followed in where the evidence is illegally obtained
but yet valid so as to provide the real justice that the subjects thrive for.

LIST OF CASES

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INDIAN CASES

1. Shyni Varghese v. State (Govt. of NCT of Delhi) (2008) 147 DLT 691 (Del)
2. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300
3. Lekhraj vs. Manipal, (1878) I.L.R. 5 Cal. 744 (P.C.)
4. Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345, 364
5. State of Maharashtra v. Natwarlal Damodardas Soni, A.I.R. 1980 S.C. 593.
6. Bai Radha v. State of Gujarat, A.I.R. 1970 S.C. 1396.
7. Harikisandas Gulabdas & Sons v. State of Mysore, 27 S.T.C 434 (1971).
8. Agrawal Engineering Stores v. State of U.P., 29 S.T.C. 446 (1972).
9. S. Natarajan v. Joint Commercial Tax Officer, 28 S.T.C 319 (1971).
10. Balwant Singh v. R.D. Shah, 71 I.T.R. 550 (1969).
11. In R.M. Malkani v. State of Maharashtra, A.I.R. 1973 S.C. 157.
12. Ukha Kolhe v. State of Maharashtra, A.I.R. 1963 S.C. 1531.

FOREIGN CASES

13. Kuruma v. R. (1995) 1 All E.R. 236 (P.C.).

14. R. v. Leathem, (1861) 8 Cox C.C. 408, 501 (Per Crompton. J.).
15. R. v. Sang, (1979) 3 W.L.R. 263, 288 (H.L)
16. People v. Cahan, 44 Cal 2d 434 (1955)
17. Mapp v. Ohio, 6 L Ed 2d 1081 : 367 US 643 (1961).
18. People v. Arnau, 58 N.Y.2d 29
19. Weeks v. United States, 232 U.S. 383.
20. People v. Martinez, 38 Cal.2d 556.

INTRODUCTION
The advent of the advance techniques of tracing the evidence has posed threats to the basic
human rights of individuals ranging from privacy to the malicious prosecution and
mishandling of the accused in the court. There are various instances within which the
authorities indulge in illegal means for collecting the evidence. At these situations the illegal
evidence although sufficient for the culprit to be held guilty becomes an illegal evidence.
There are several methods by which evidence may be illegally obtained, e.g., by

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eavesdropping, illegal search, violating the body of a person and other methods which shock
the human conscience.

In India there has not been any statutory provision or legislation that prohibits the
admissibility of such evidence and therefore the Indian judicial system follows the traditional
approach that follows that the means of obtaining evidence does not affect the admissibility
within the court.1 According to report submitted by the law commission of India, there are
various models in the common law countries where the approaches towards the admissibility
varies and the models are as follows

1) Strict Approach the strict approach is followed in nations like India wherein the
illegality or the illicit means of procuring the evidence does not render the evidence
obtained as inadmissible in the court. However this approach has been existing due to
the lack of any statutory provision which would prohibit such evidence from being
entertained in the court.2
2) Moderate approach these situations arise in in nations like Australia and Scotland
wherein the admissibility of the illegal evidence or the improper means of evidence is
determined at the time of trial and rests on the discretion of the judges.
3) In the third category the evidence is excluded from admissibility by some specific
statutory provision and such admissibility is in violation of some substantive norm of
conduct.3
4) In the fourth category (where countries like USA are included) a constitutional
guarantee or a judicial construction of a constitutional guarantee, excludes certain
evidence from use at the trial, where the evidence has been obtained in the violation
of such constitutional guarantee. In the United States the Fourth Amendment
(protection against unreasonable search and service) and the Fourteenth Amendment
(the Due Process Clause) provides for such protection.4

1 Law Commission of India, Ninety Fourth Report on Evidence obtained illegally or improperly.

2 An example of this can be Section 123 of the Indian Evidence Act which prohibits unpublished
records of the Government from being called as evidence unless and until prior sanction is taken from
the Head of the Department/Minister, Comments and Suggestions on 185th Report on Indian Evidence
Act, Draft by Bimal N. Patel, November 2013, GNLU

3 Section 24 of the Indian Evidence Act (Referral).

4 Supra note 3.

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The approach in India has been that under the Evidence Act, 1872 which is a law
consolidating, defining and amending the law of evidence permits relevance of a piece of
evidence as the only test of admissibility of evidence. 5 The courts have taken the view that
there is no law in force that excludes relevant evidence on the ground that it was obtained
under an illegal search or seizure, or was otherwise illegally obtained. 6 Thus under these
circumstances it is necessary to evolve out of the former English judgements on which the
Indian judiciary relies upon and develop certain standards to be followed to restrict the
admissibility of such evidence in the courts since the phrases illegally obtained evidence and
improperly obtained evidence have been interchangeably used and refer to those evidence
which have been obtained broadly by employing methods in breach of privacy, personal
security, violence, torture and entrapment.7

INDIAN APPRAOCH

5 The Evidence Act, 1872, Section 5; Fruits of the Poisoned Tree: Should illegally obtained evidence
be admissible, Talha Abdul Rahman

6 Shyni Varghese v. State (Govt. of NCT of Delhi), (2008) 147 DLT 691 (Del); M.P. Sharma v. Satish
Chandra, AIR 1954 SC 300

7 Supra Note 5.

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The Indian Courts and the legal system sway towards the first approach in judging the
admissibility of evidence which has been obtained by illegal or improper ways, i.e., the
admissibility of such evidence is not affected by such illegality and they are mostly admitted
in a Court of law as evidence except when a statute forbids the admissibility of such
evidence.8 Such approach has been a result of the early codification of the major laws in India
and the Indian law on evidence i.e. Indian Evidence Act was established and codified prior to
many commonwealth nations. Later developments in allotting the judiciary with the freedom
and the discretion to regard certain evidence as inadmissible could not be followed up in the
Indian scenario due to the likewise upbringing of the courts in a manner of the codified law.

The criminal procedure code and the Indian evidence law came in a codified form and the
strict interpretation of the same resulted in the strict approach that was followed. This
approach was fortified by the well-known pronouncement of the Privy council to the effect
that the essence of a code is to be exhaustive in respect of all matters dealt with the code. 9
This approach was mainly provided for the criminal procedure code but was later adapted in
the Indian evidence act also.10 Also the admissibility of evidence has very well been codified
in the laws thus excluding the scope of discretion for the judicial system in respect of illegally
obtained evidence. Although with respect to admissibility of evidences like confessions the
courts have not provided any safeguards, the courts have provided safeguards in the Criminal
Procedure Code for the searches procedure and the seizure of evidence so as to ensure the
safety of the parties involved and thereby focussed on the inadmissibility of illegal evidence
through a separate medium.

The judicial approach is that law of evidence permits relevance of a piece of evidence as the
only test of admissibility of evidence.11 The courts believe that there is no law that excludes
the admissibility of evidence on it being illegally obtained 12 and for this SC has gone to an
extent of holding that It will be wrong to invoke the supposed spirit of our Constitution for
excluding such evidence. It, therefore follows that neither by invoking the spirit of our
8 Supra note 2.

9 Supra note 1.

10 Lekhraj vs. Manipal, (1878) I.L.R. 5 Cal. 744 (P.C.)

11 The Evidence Act, 1872, Section 5.

12 Shyni Varghese v. State (Govt. of NCT of Delhi), (2008) 147 DLT 691 (Del)

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Constitution nor by a strained construction of any of the fundamental rights can we spell out
the exclusion of evidence obtained on an illegal search13

In the matter of State of Maharashtra v. Natwarlal Damodardas Soni14, the premises of the
accused were searched and gold was seized by the authorities and as a consequence charged
with certain offences. Defence was posed that since the search was illegal the seizure was
inadmissible in evidence. It was held, assuming that the search was illegal, it did not affect
the validity of the seizure and its admissibility in evidence. In Bai Radha v. State of Gujarat
15
, it was held that non-compliance with some of the provisions relating to search would not
affect the admissibility of the evidence so collected unless a prejudice was caused to the
accused.

The tax departments have also procured evidence illegally and there has been conflict of
opinion amongst high courts regarding this. The Mysore High Court 16 held that such an
evidence could not be used but the Allahabad17, Madras18, and Delhi High Courts19 took a
contrary view. In Pooran Mai v. Director of Inspection20 the Supreme Court held that there
was no constitutional or statutory bar in using such evidence. In R.M. Malkani v. State of
Maharashtra21, the police had used an eavesdropping device to tape record conversation
between the accused and a third person about the demand of bribe by the former. The accused
contended that he could not be convicted of the charges of corruption on the basis of the
evidence of tape recordings illegally obtained. The court held the evidence to be admissible,

13 Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345, 364

14 A.I.R. 1980 S.C. 593.

15 A.I.R. 1970 S.C. 1396.

16 Harikisandas Gulabdas & Sons v. State of Mysore, 27 S.T.C 434 (1971).

17 Agrawal Engineering Stores v. State of U.P., 29 S.T.C. 446 (1972).

18 S. Natarajan v. Joint Commercial Tax Officer, 28 S.T.C 319 (1971).

19 Balwant Singh v. R.D. Shah, 71 I.T.R. 550 (1969).

20 93 I.T.R. 505 (1974). The case was followed by the Kerala High Court in Verghese v.
Commissioner of Agricultural Income-Tax 105 I.T.R. 732 (1*76).

21 A.I.R. 1973 S.C. 157.

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and said that there was warrant for the proposition that even if evidence is illegally obtained it
is admissible. However, the court made the significant observation that "the Police Officer is
more likely to behave properly if improperly obtained evidence is liable to be viewed with
care and caution by the Judge."

In Ukha Kolhe v. State of Maharashtra22, the blood of the accused was taken to determine
whether he had committed an offence under the Bombay Prohibition Act. The procedure
prescribed in section 129A of the statute was, however, not followed in that matter. There was
a provision in the statute which said that nothing in section 129A "shall preclude the fact that
the person accused of an offence has consumed an intoxicant from being proved otherwise
than in accordance with the provisions of this section." Relying on this provision the
majority, four to one, held that the evidence collected in the case was admissible. But the
dissenting judge held that in proving the alcoholic content of the blood the specific procedure
prescribed in section 129A must be followed. Since this was not done, the result of the blood
examination could not be admissible in evidence.23

22 A.I.R. 1963 S.C. 1531.

23 ADMISSIBILITY OF ILLEGALLY OBTAINED EVIDENCE, S.N. Jain

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APPROACH IN COMMON LAW

The Indian law is primarily founded on the traditional common law but the English law has
been liberal enough to identify a modernised approach towards the inadmissibility of illegal
evidence. The subject of evidence obtained illegally was represented in the leading case of
Kuruma24. The actual decision in the case was although in favour of the admission of the
evidence but the observations of the judicial committee of the Privy Council are considered
as the first point of the recognition of the subject. The council in that case held that evidence
of the accuseds unlawful possession of ammunition, discovered in consequence of an illegal
search of his person, was admissible. The Privy Council acted on the principle that provided
real evidence is relevant, it is legally admissible, however improperly, it had been obtained.
The person against whom such evidence is tendered may have a civil remedy against the
person who obtained it and the latter may be liable to disciplinary, or even criminal
proceedings. But the law is that: It matters not how you get it; if you steal it even, it would
be admissible in evidence.25

Lord Goddard, L.C.J., said:

No doubt, in a criminal case the judge always has a discretion to disallow evidence of the
strict rules of admissibility would operate unfairly against an accused If, for instance,
. Some piece of evidence. Had been obtained from a defendant by a trick, no doubt;
the judge might properly rule it out.26

24 Kuruma v. R. (1995) 1 All E.R. 236 (P.C.).

25 R. v. Leathem, (1861) 8 Cox C.C. 408, 501 (Per Crompton. J.).

26 Clayton Hutchins, Discretion of a trial Judge to exclude otherwise admissible evidence (May
1981) Vol. 6.

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In the recent judgement about the discretion of the court, R. v. Sang27, the general question by
the House of Lords was does a trial judge have a discretion to refuse to allow evidence
being evidence other than the evidence of admissions to be given in any circumstance in
which such evidence is relevant and of more than minimum probative value? the answer to
this question was provided as follows

1) A trial judge at a criminal trial has always a discretion to refuse to admit evidence if in
his opinion its prejudicial effect outweighs its probative.
2) With regard to admissions and confessions and generally with regard to evidence
obtained from the accused after his commission of the offence, he has no discretion to
refuse to admit relevant admissible evidence on the ground that it was obtained by
improper or unfair means. The court is not concerned with how it was obtained.

Another area which provides discretion in England is that the evidence may not be given of a
partys misconduct on prior occasions, if its only purpose is to show that he is a person likely
to have misconducted himself on the occasion in question. As Cross stated, In all such cases,
the judge ought to consider whether the evidence which it is proposed to adduce is
sufficiently substantial, having regard to the purpose to which it profusely directed, to make it
desirable in the interests of justice that it should be admitted. If so far as the purpose is
concerned it can in the circumstances of the case have only trifling weight, the judge will be
right to exclude it.

27 R. v. Sang, (1979) 3 W.L.R. 263, 288 (H.L)

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ARGUMENTS FOR EXCLUDING THE EVIDENCE

There are at least four accepted principles on the basis of which improperly obtained
evidence must not receive favour from courts.28

Reliability Principle - is based on the premise that determining the truth of the
criminal charges is the sole purpose of the criminal trial, and evidence should be
admitted or excluded solely on grounds of reliability. It is argued that evidence
obtained by improper means including torture, violence, or under a promise may not
be reliable.
Disciplinary Principle - requires that improperly obtained evidence should generally
be excluded, even when its reliability is not in doubt, since the court should use its
position to discourage improper practices in the investigation of crime. It is argued
that if judges routinely exclude improperly obtained evidence, the prosecutorial
system would stop resorting to improper techniques as they would cease to be useful.
Protective Principle - which is based on the premise that evidence obtained by
infringing individual right provides a prima facie justification, for the exclusion of
such evidence is one of the methods by which infringement of the right can be
remedied or vindicated. There is some support to this principle from the judgment of
Dragan Nikolic by International Criminal Tribunal for Yugoslavia as well.29

28 Peter Duff, Admissibility of Improperly Obtained Physical Evidence in the Scottish Criminal
Trial: The Search for Principle (2004) 8 Edin LR 152.

29 Cedric Ryngaert, The Doctrine of Abuse of Process: A Comment on the Cambodia Tribunal
Decisions in the Case against Duch (2007) (2008) 21 Leiden Journal of International Law 719.

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 Judicial Integrity Principle - operates on the basis that unless the courts refuse to
admit improperly obtained evidence, they are endorsing the improper conduct by
which such tainted evidence was procured. Therefore, to maintain their integrity and
respect of administration of justice, the courts must be cautious of admitting such
evidence.30 The thrust of the judicial integrity principle is not on morality but on
public confidence in integrity of the system. This is because judicial integrity is at risk
not only in the guilty escaping the conviction, but also in the manner in which the
conviction is achieved.31

Further there are certain principles that have evolved from the 4 th amendment of the U.S.
constitution to protect and safeguard the rights of the people whose basic rights are being
violated at the expense of the seizure processes being conducted against him. The most
important of the rule is the Exclusionary rule. Illegally obtained evidence applies
to criminal cases only and is typically "evidence acquired by violating a person's
constitutional protection against illegal searches and seizures; evidence obtained without a
warrant or probable cause"32 Exclusionary Rule, states "evidence collected or analyzed in
violation of the U.S. Constitution is inadmissible for a criminal prosecution in a court of law
(that is, it cannot be used in a criminal trial)". It was established in the matter of Weeks
v. United States33, also to provide certain ristrictions over the illegal search and seizures there
are approaches like Carey Winnick Approach which states that before conducting the search
a report should be sent to the magistrate for the probable methods that would be applied for
collecting and conducting seizures. Another is Border Protocol which states that there is no
permission available to the authorities to enter into other countries to collect evidence.

EXCEPTIONS

30 Origin of this principle appears to be in the American case of People v. Cahan, 44 Cal 2d 434
(1955) where the Californian Supreme Court observed that out of regard for its own dignity as an
agency of justice and custodian of liberty the court should not have a hand in such a dirty business. It
is morally incongruous for the State to flout constitutional rights and at the same time demand that its
citizens observe the law., Mapp v. Ohio, 6 L Ed 2d 1081 : 367 US 643 (1961).

31 https://www.universalclass.com/articles/law/illegally-obtained-evidence.htm

32 (Blackwell, 2004)

33 232 U.S. 383.

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 First, even when the rule applies, it only excludes illegally obtained evidence for the
purpose of proving the defendant's guilt for the particular crime. Such proof can still
be used to impeach the credibility of the defendant's trial testimony.
Inevitable Discovery Doctrine It holds that evidence obtained through an unlawful
search or seizure is admissible in court if it can be established, to a very high degree
of probability, that normal police investigation would have inevitably led to the
discovery of the evidence. In the case People v. Stith34, the court ruled that such
evidence could be admitted under this doctrine, but only as secondary
evidence. Primary evidence, or "the best and most important evidence in a case,
was still bound by the conditions of the exclusionary rule.
Attenuation Exception It states that "evidence may be suppressed only if there is a
clear causal connection between the illegal police action and the evidence". In People
v. Martinez35, a three-part test was established for this exception: "(1) the time period
between the illegal arrest and the ensuing confession or consensual search; (2) the
presence of intervening factors or event; and (3) the purpose and flagrancy of the
official misconduct".
Independent Source Exception It allows evidence into proceedings if it came from
a knowledgeable and independent source. In this sense, an independent source must
be someone utterly unconnected to the illegality of the arrest, search, and/or seizure.36
Good Faith exception - It permits the admission of some illegally obtained evidence
if it is the result of a minor or technical error. If "a magistrate is erroneous in granting
a police officer a warrant, and the officer acts on the warrant in good faith, then the
evidence resulting in the execution of the warrant is not suppressible". The good faith
exception does not apply in all such situations, however. Specifically, "(1) no
reasonable officer would have relied on the affidavit underlying the warrant. (2) the
warrant is defective on its face for failing to state the place to be searched or things to
be seized. (3) the warrant was obtained by fraud on the part of a government official.
(4) The magistrate has "wholly abandoned his judicial role'".37

34 69 N.Y.2d 313 (1987).

35 38 Cal.2d 556.

36 People v. Arnau, 58 N.Y.2d 29

37 https://www.universalclass.com/articles/law/illegally-obtained-evidence.htm

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CONCLUSION

It is argued that it is time that Indian courts should be coherent in adopting an inclusive rights
approach and must attempt to distance themselves from receiving the evidence that has been
collected in violation of individual freedom. While it may not be effective to automatically
exclude such evidence, it is important for Indian courts in appropriate cases to develop a
structure for exercise of their common law discretion to exclude evidence, something to
which the Indian courts seem to have been oblivious. However, the job of a Judge is a
difficult one, and even if assisted by a legislative change, a Judge would be required to grant
appropriate remedy in the facts of the case before it. The above discussed case laws, which by
no means are exhaustive, show the difficulties that the Judge faces in attempting to find a
comfortable way to achieving conviction without overstepping the individual rights and at the
same time keeping the reputation of a fine administrator of justice.38

In the respect of the complexity of cases that are arising in the judicial system with the advent
of modern technologies that provide for the digital evidence. An encroachment within the

38 Fruits of the Poisoned Tree: Should illegally obtained evidence be admissible?, Talha Abdul
Rahman.

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digital sphere of the person becomes a violation of the right to privacy and is an utter
disregard to the anonymity clause that is secured through the digital sphere and India has still
no provisions to deal with the Crime scene investigation in the real world. The major
deficiency that needs to be addressed is that the Indian law is statute oriented and theres no
consideration of deeper human values. The courts also need to address issues like

The fact that the evidence was collected illegally and its admissibility brings the
whole judicial system to a disrepute.
It amounts to unfairness to the person against whom the evidence has been collected
and therefore the very basic strata of the legal system i.e. justice and equity is
demolished.

In determining the admissibility of evidence several matter should be looked into

The extent to which the basic human rights were violated.

The seriousness of the case
The importance of the evidence
The question whether the harm was inflicted against the person wilfully or by mistake
Whether the actions could be justified.

It is recommended that the Indian approach discards the traditional Common law approach
and follows the U.S. approach in order to bring its statutory provisions at par with the modern
day structure. Further the human dignity and values should be kept as forefront for the judges
to determine the admissibility to the courts. In making a statutory provisions the rigid
structure would prevail and admissibility might be hindered in the most extreme of the cases.
Instead of rigidity, guidelines can be setup for the judges to determine the position for the
parties and to apply their discretion over the matter that whether there was unfairness posed
against him. Also it would be assisting in securing the belief in the judicial system to act
against and authoritative law enforcement authorities.

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