FRUITS OF THE POISONOUS TREE

Payal Chawla

No recovery of drugs was made from the person of Aryan Khan. There is no evidence of consumption. The entire case sought to be made out against Khan is on the basis of alleged WhatsApp chats. These are the facts, as we know them from publicly available information.

In these circumstances Khan’s detention and arrest have presumably been made in terms of s.43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) – due to him having been allegedly found in the “company” of a person from whom recovery of a contraband was made.

Without commenting on the contents or the veracity of the alleged WhatsApp chats, several troubling questions arise for consideration – as a matter of law – was there sufficient cause to seek, seize and search Khan’s mobile phone? Are there any limitations on what contents can be perused, scrutinised, and tendered as evidence? Would the chats (even if they reveal the commission of an offence) be treated as “tainted”, and be subject to the Article 20(3) protection against self-incrimination?

More importantly, has the investigation, in this case, been turned on its head – as a means to justify the end? In plain terms, and by way of example – can the search of a “premises” be permitted, in our constitutional scheme, without reasonable cause? And can the evidence gathered, during the course of such an illegally carried-out  search and seizure, be used to justify the commission of an offence?

Section 43, NDPS Act

Since the raid was conducted in a “public” place the search, seizure and arrest would have to have been made in terms of s.43 of the NDPS Act. However, Khan’s phone was not an ‘article’ found “along with” any “drug or substance”; therefore, it could not have been seized in terms of s.43(a). Without the recovery of any contraband, Khan’s arrest is, merely, as a companion, and therefore in terms of s.43(b) alone.

[On a separate but related note, it would not be out of place to mention that it is rather confounding, as to how Khan came to become accused no.1] .

Conscious Possession

The charge against Khan is one of “conscious possession”. Simply put, a person although not in physical control of the contraband in question, is said to be in constructive possession if s/he has power and control of the contraband and the person (found with the contraband) holds it subject to the said power or control.

A raid carried out in a private space, could as a matter of law, give rise to a rebuttable presumption of conscious possession. For instance, if contraband is found in a car, all passengers could be said to be in conscious possession, and the burden would be on the accused to show otherwise.

However, in this particular case, the raid took place in public, specifically at a cruise party with hundreds invited/present. At the first instance, it is for the prosecution to show how “company” came to be defined or “conscious possession” was arrived at.

It is this threshold burden that the prosecution seeks to discharge – not by facts that caused the arrest, but by the search and seizure of Khan’s mobile phone, in an attempt to justify the arrest.

Search and Seizure of the mobile phone

To the prosecution, perhaps, the search and seizure of the mobile phone appears to be legitimate, as an incident of Khan’s arrest. I argue, however, that such a proposition is wholly incorrect.

First, a person comes to be termed as “any other person in his company” or (colloquially) companion, under s.43(b), after the search has been conducted on him and no contraband is found on his person. It is for this reason, s.43(b) does not contemplate a search and seizure, but merely the “arrest” of the companion. The point being that the search and seizure permitted by s.43 is already complete, prior to the arrest.

Secondly, in such circumstances, the search and seizure of Khan’s mobile phone would require a second, wholly new and separate procedure, and one embodied under the NDPS Act for “private” places. The procedure for search and seizure of private and public places under the NDPS Act are different.

The reason that a mobile phone needs to be treated as a ‘private’ place, as opposed to any other article or belonging, is that mobile phones are the alter ego of our person.

Public place versus Private Place

It is now settled law that privacy attaches to a person. The traditional (and now obsolete) view was that privacy protected the ‘home’ from state intrusion (Entick v. Carrington [(1765) EWHC KB J98], which concept was embodied in the Fourth Amendment to the US Constitution. This proposition has since evolved with the judgement of Katz v United States[389 U.S. 347 (1967)]. In Katza public phone booth was held to be akin to a home, and the moment the door closed, the person inside would have a reasonable expectation of confidentiality.

Similarly, in India the “expectation of confidentiality” also extended to documents lying in a bank (District Registrar and Collector, Hyderabad v. Canara Bank, [(2005) 1 SCC 496]. More recently, the Supreme Court in the matter of Boota Singh v. State of Haryana [(2021) SCC OnLine SC 324], held that a private vehicle is not a “public place”, and its search would require compliance with s.42 of the NDPS Act.

The Karnataka High Court in the matter of Virendra Khanna v. State of Karnataka [(2021) SCC OnLine Kar 5032] held that a smart phone, electronic equipment, including an e-mail account was akin to a “closed place” in terms of s.100 of the Code of Criminal Procedure, 1973.

Should mobile phones qualify for an enhanced confidentiality standard?

In my view and in one word, yes.

A mobile phone is not an ordinary phone instrument, nor is it merely a document. Mobile phones carry every information of our lives including our private and intimate details, phone records, messages, chats, e-mails, shopping records, our digital and physical footprint, banking details, medical history, network of friends, colleagues, intimate partners, acquaintances, our religious beliefs, political affiliations, sexual preferences, what and when we surf on the net, the movies we watch, the books we read and even our most personal photographs and videos. Worse still, they could also contain our privileged communications including with our attorneys. Unlike physical documents, this digital footprint cannot even be destroyed.

Unregulated access to mobile phones is a serious invasion of privacy. This is, of course, exacerbated in the context of women. Anyone doubting the perils of this invasion need only look at the plight of the witness for the prosecution in the matter of State (Through CID CS North Goa) v. Tarunjit Tejpal [Sessions Case (Ors.) No. 10/2014]. The private contents of her mobile phone became fodder for the defence, to ask every intrusive question that the Supreme Court has frowned upon, only to result in a ‘judgement’ of her character, laboriously describing her intimate details, which had nothing to do with the assault in question. The unredacted version of this judgement passed through hands, leaving an indelible footprint.

Privacy is a fundamental right

In 2017 a nine-judge bench in matter of Justice K Puttaswamy v Union of India, [(2017) 10 SCC 1] held privacy to be a fundamental right. Yet, even in the aftermath of the privacy judgement, there have been troubling transgressions into the privacy of individuals, particularly through the extraction of data from mobile phones. 

The warrant requirement

Chief Justice Roberts provides a simple “answer to the question of what police must do before searching a cell phone” — “get a warrant” (Tim Riley v California, [(573 U.S. 373 (2014)]). More recently in 2018, the US Supreme Court held that a warrant would be required for cell phone site location information because an individual has a ‘reasonable expectation of privacy’ of movement (Carpenter v. United States, [138 S. Ct. 2206 (2018)], expanding a similar proposition which was laid down in United States v. Jones, [565 U.S. 400 (2012)] in regard to GPS.

In India, as a general rule of thumb, a warrant is mandatory for the search of a premises, including under the NDPS Act, except as prescribed by law. In the matter of Virendra Khanna (supra), the court has held an investigating officer, during the course of an investigation, can issue any directions or request the accused to furnish the password, passcode or Biometrics, of smartphone/email account. In the event of a refusal, the investigating officer will need to move the court to obtain necessary directions/warrant.

According to the prosecution, Khan handed over his mobile phone of his own volition, and hence, the statutory s.65-B compliance (at the initial stage) could be dispensed with, and presumably also the warrant requirement. Whether the mobile phone was handed over voluntarily, or by inducement or threat or promise or means of an illegal arrest, or pursuant to a waiver of his informed rights, is a matter of trial. But dehors what Khan’s defence team may contend in that context, the fact that Khan’s phone could have been seized, given the circumstances of his arrest, should give us all pause – more particularly, if the search precedes the cause.

Tainted evidence

The doctrine of the ‘fruits of the poisonous tree’, also known as the exclusionary rule, is an American evidentiary rule of criminal law. Simply put, the rule (barring a few exceptions) prohibits the courts from taking note of illegally obtained evidence, even if the evidence is of sterling quality. The rule extends to illegal searches and seizures in violation of the Fourth Amendment to the US Constitution. The rule also extends to the Fifth Amendment and prohibits the admission of any evidence that may violate a person’s right against self-incrimination or the right of an accused of access to legal counsel.

In India, the right against self-incrimination is constitutionally recognized and embodied in Article 20(3) of the Constitution, which reads – “No person accused of any offence shall be compelled to be a witness against himself”. The right to consult with a lawyer is embodied in Article 22. Courts in India, barring some exceptions, have relied even on ‘tainted evidence’. However, in regard to stringent provisions such as the NDPS, strict compliance of procedure is insisted upon.

Right against Self-incrimination and analysis of Virendra Khanna v. State of Karnataka

An analysis of Virendra Khanna (supra) is imperative since it deals with NDPS, mobile phones and self-incrimination.  According to the court a “direction to provide a password, passcode, biometrics”  did not amount to  “testimonial compulsion”, as such a direction is merely to gain “access”.The data in and of itself would need to be proved in trial. Respectfully, the court has failed to take in to consideration the dangers of first accessing the data, quite in the nature of a roving and fishing enquiry, and then force fitting the evidence to allege a crime.

The court recognises there can be no strict compartmentalisation between privileged communication, strictly private & confidential data and incriminatory evidence in mobile phones. In the same breath, the court observes that use of such data during the course of such investigation would fall within the exception carved out in Justice Puttaswamy (supra).  In my humble submission, such an interpretative leap may not be correct and may instead be contrary to Selvi v. State of Karnataka [(2010) 7 SCC 263]).  Although, the court places reliance on Selvi, it fails to consider that the three-judge bench in Selvi categorically held that the “theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of `personal liberty’ under Article 21. Hence, our understanding of the `right to privacy’ should account for its intersection with Article 20(3).

[On a slightly different but related note Virendra Khanna may require reconsideration in view of its observations on s. 91 of the Cr.P.C in view of State of Gujarat v. Shyamlal Mohanlal Choksi [(1965) 2 SCR 457] and V S Kuttan Pillai v. Ramakrishnan [(1980)1 SCC 264]]

According to the court in Virendra Khanna, privileged communication/personal data would be subject to the same safeguards afforded to physical documents, and the responsibility of these safeguards would be with the investigating officer in question. Any violations would tantamount to dereliction of duty/delinquency and will be dealt with in accordance with the law. But consider that violations abound, and with impunity. Consider, that incarcerations leave indelible scars. Consider, reputations once lost are impossible to rebuild. Consider, the trial is the punishment.

Conclusion

There can be no quarrel with the proposition affirmed in Justice Puttaswamy (supra) that there is a need for balancing interests between the State and the individual. Interests of the State would include “national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits”, and the interest of the individual would include constitutionally guaranteed rights. One such guarantee is the right against self-incrimination.

The court in Justice Puttaswamy (supra) was cognizant that “challenges which big data poses to privacy interests emanate from State and non-State entities”, and in this context, directed the Union Government to “examine and put into place a robust regime for data protection”, which balances the “individual interests and legitimate concerns of the state”. Even as the Joint Parliamentary Committee continues its deliberations on the Personal Data Protection Bill, 2019, we have the Pegasus revelations. It is, perhaps, time for the Supreme Court to lay down, at the very least, non-derogable aspects of the very protection that it has guaranteed.

At the end, no matter which side of the fence you sit on, in regard to the arrest of Aryan Khan – his continued incarceration is a looking glass into the fragility of our privacy, and its impending invasion without due process. Anyone could be next.

The author is a practising advocate and the founder of JUSCONTRACTUS, a Delhi based law firm. The author acknowledges the invaluable assistance of Ms Aastha Bhardwaj, advocate (JUSCONTRACTUS). The author is also grateful to Mr Chander Uday Singh, Senior Advocate and Mr Vikas Gupta, Advocate for their generous inputs and valuable time.

A similar version of this Article first appeared in Bar and Bench on 25.10.2021 and can be viewed by following the link – https://www.barandbench.com/columns/aryan-khan-case-fruits-of-the-poisonous-tree