Search – There has to be a nexus for a search, it cannot be random.
Section 165– Search by police officer : Here the Investigating officer/ or the OC is conducting search when they have reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge.
Elements of Section 165:
- When can he search? … Reasonable Grounds for believing – Section 93(1) gives the grounds under which the search warrant may be issued. The same standard of reasonable doubt exists.
Reason suspect is not equal to Reason to believe. Reason to suspect is a better ground.
- What can be found? … Necessary for the purpose of investigation
- Offense authorised to investigate – there are various levels of police officers who have responsibility. The job can be delegated but a junior officer cannot do the job at will. This is also given in Section 165(3)
- Limits of Police Station
- The search can become illegal if the search is not recorded in the Diary.
Procedure for Search: The police officer would come and get two ppl from the locality called the ‘Panchas’. The evidence of these ‘panchas’ are imp. if something is ceased. There is a document which they sign validating the search and its procedure. This is important otherwise the happening of the search cannot be substantiated.
|A search memo needs to be made and submitted to the Magistrate. The Magistrate sends the memo to the owner/ the occupier of the place. This owner and occupier may not be the accused. Therefore, the accused may, at times, not get the memo at all, until the trial.|
Section 47 – Search of place entered by person sought to be arrested: This gives duty to the person who or whose premises need to be searched by the person holding the warrant. If the police is not allowed in, they are allowed to break open the door. There is also an allowance for a ‘no-knock break-in’ to take place; this is to take the person by surprise.
A search memo needs to be made and submitted to the Magistrate. The Magistrate sends the memo to the owner/ the occupier of the place. This owner and occupier may not be the accused.. Therefore, the accused may, at times, not get the memo at all, until the trial.
Section 166 – When officer in charge of police station may require another to issue search warrant: A person of another limit may be requested to conduct any search, by the officer who is already conducting a search under Section 165. This has to be in accordance to Section 165. This other police officer must prepare a report and submit it to the original OC, after the search happens.
However, if an immediate search needs to be conducted in another jurisdiction, the officers may do so, but they would need to send a notice and the list of the search to the police station and to the nearest Magistrate.
Section 100 – Persons in charge of closed place to allow search
A police carrying a warrant should be allowed to conduct a search. If he is not allowed to conduct the search, then force may be used. The force used should however, be reasonable. The search is not only of premises but also of person. If it is a female, a female officer must search, with decency. The search should be made before two respectable people from the locality. If there are no people from the locality, then people from outside the locality may also be taken. These are the ‘Panchas’. The panchas need to sign the search document. These people need not necessarily be called as witnesses, infact they can’t be called as witnesses.
Section 187 of the IPC states there should be no omission to assist public servant when bound by law to give assistance.
Section 91 – Summons to produce document or other thing
- Who can issue the summons? Court or Officer in Charge of Police Station
- What can they summon? Document or any other thing
- Why would they summon it? Necessary or desirable
- Who would they summon it from? Whoever the police believes is in possession of the document or is in possession of the object
- Where would the person produce it? The person may attend and produce it, or to produce it, at the time and place stated in the summons or order. The person may also ask someone else to produce it on his behalf.
- Which documents cannot be summoned? Things under Bankers book, things under Section 123 and 124 of the Evidence Act (‘Evidence as to affairs of state’ and ‘Official communications’ resp.)
Section 92- Produce as to letters and telegrams
District Magistrate, Chief Judicial Magistrate, Court of Sessions or High Court are the only ones who can ask for the letters and telegrams to be produced. Other Judicial officers may as well however, ask for the stopping of such letters and telegrams, but such letters and telegrams would not be delivered to the officers.
Section 349 – Imprisonment or Committal of person refusing to answer or produce document
Section 345 – Procedure in some cases for contempt
Section 346 – Procedure where Court considers that case should not be dealt with under Section 345. – This becomes a case of perjury.
|A person producing a document does not become a witness. Section 139 of the Indian Evidence Act it says that the person producing a document cannot be cross examined unless he is specifically called a witness.|
Impounding – this is pertaining to documents.
Constitutional Implications of Search and Seizure
There is no express constitutional bar to search and
Section 460– Irregularities, which do not vitiate proceedings
Amendment 4 and 5 of the US constitution
Exclusionary rule of evidence – this states that things which are found out of an illegal search or seizure are not admissible: Silverthrone Lumber Co. v. USA. The exceptions are that
- they are discovered in spite of the tainted source, i.e., if whatever was found was stated by a witness who had no connection to the search.
In India however the ERoE is not generic in nature. One needs to show that the search was unfair in nature.
- There is no exclusionary rule in India because under the India Evidence Act this is not there – Puranmal Case
- State of Punjab v. Baldev Singh
- State v. Natwarlal
M.P. Sharma case
State of Gujarath v. Shyamlal AIR 1965 SC 1251
Wire tap – Tapping of the phone. The power to do this the power is given by Section5(2) of the Indian Telegraph Act
UCL v. Union of India
Pooran Mal v. Dy. Of Inspections
Facts: A search warrant is issued under the Income Tax Act against the petitioners. The petitioners claim that this is illegal and the evidence cant be admissible. Furthermore, they ask for the exclusion of that part of the evidence which is acquired from the property which was not mentioned for in the search warrant.
Decision: The court hold that any statute can call for search and seizure to be conducted, as long as it broadly follows the principles as laid down in the CrPC. It also said that the findings of a search and seizure cant be held to be inadmissible merely on the ground of the illegality of the search and seizure. Also, it held that if there are some materials acquired during the search which are useless, this doesn’t mean the entire evidence is inadmissible. There are no constitutional prinicples or fundamental rights interpretation which gives for exclusion of evidence.
State of Punjab v. Balbir Singh
Issue: Whether any arrest and search of a person or search of a place without conforming to the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short), becomes illegal and consequently vitiates the conviction.
Held: If a police officer, even if he happens to be an “empowered” officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions ‘of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.
Neither Section 41(2) nor Section 42(1) mandates such empowered officer to record the grounds of his belief. It is only proviso to Section 42(1) read with Section 42(2) which makes it obligatory to record grounds for his belief. To that extent we have already held the provisions being mandatory. A fortiori, the empowered officer though is expected to record reasons of belief as required under Section 165, failure to do so cannot vitiate the trial particularly when Section 41 or 42 do not mandate to record reasons while making a search. Section 165 in the context has to be read along with Sections 41(2) and 42(1) where under he is not required to record his reasons. The general principles laid down regarding the irregularities committed in such searches, equally apply even to cases where the grounds of belief as required under Section 165 are not recorded.
The provisions of CrPC namely Sections 100 and 165 would be applicable to such arrest and search.
Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.
State of Punjab v Baldev Singh
The petitions are regarding the exact scope and effect of sec 50 the Narcotic Drugs and – Psychotropic Substances Act, 1985. Section 50 states that, the designated officer, prior to the search, must inform the person to be searched about his right to be searched in front of a gazetted officer or magistrate. The question arises is this mandatory?
The court when discussing the nature and scope of the protection mentions that this is a protection offered by the legislature to a person being accused of such an act and one who is to be subject to the search. The purpose of this section is two-fold, it protects the person from fallacious charges and false claims and it ensures that there is a force of authority granted to the prosecution as well. This fulfills both purposes.
The court holds that this is obligatory on the officer in the case. Lack of such notice may not vitiate the trial process itself, but any conviction made solely on the basis of such evidence is unsustainable.
Also, any evidence adduced from such a search cannot be used as a presumption for a future search as, the grounds under 54 state that it must be in compliance with sec 50.
The provisions for search and seizure are in compliance with those of the CrPC, in sec 100 and 165 and the court relies on the decision of the court in state of Punjab v. Balbir Singh.
State of Maharashtra v. Natwarlal Damodardas Soni (SC – 1979)
Facts: The Anti-Corruption Bureau of the Police raided the house of the respondent and recovered gold biscuits with foreign markings stitched in a jacket lying in a steel trunk underneath some clothes. At the time of the raid, the respondent was not in the house but his wife and mother were present. At about the same time the Customs Authorities also raided his house and took proceedings under the Customs Act, 1962 in respect of the smuggled gold found in the house. The respondent, who remained absconding, surrendered to the police a week thereafter.
At the trial the respondent contended that the gold was brought into his house by someone and left there in his absence and that, therefore, he had no connection with the gold.
On appeal to this court it was contended on behalf of the respondent that (i) the search of his house and the seizure of gold by the police was illegal; (ii) that section 123 of the Customs Act was not applicable because the seizure was made not by the Customs Authorities but by the police under the Code- of Criminal Procedure and therefore the burden of proving the offence lay on the Police which it did not discharge.
Issue: Whether an illegal search will vitiate the trial? – relevant Sections of CrPC are 103, 105 and 165.
Analysis: Taking the first contention first, the court observed that the police had powers under the Code of Criminal Procedure to search and seize this gold if they had reason to believe that a cognizable offence was being committed. Even if the search was illegal (assuming), then also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs.
Two case-law were cited: In Radhakrishan v. State of U.P. – “So far as the alleged illegality of the search is concern ed, it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of ss. 103 and 165, Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.”
In Shyam Lal Sharma & Anr. v. The State of Madhya Pradesh: “even if the search is illegal being in contravention with the requirements of Section 165, Criminal Procedure Code, 1898, that provision ceases to have any application to the subsequent steps in the investigation.”
V. S. Kuttan Pillai
This is given under Statements to Police – Self Incrimination