CODE OF CRIMINAL PROCEDURE

SEARCH/SEIZURE POWERS OF POLICE

ARMY INSTITUTE OF LAW, MOHALI

IN PARTIAL FULFILMENT OF BALLB 5 YEARS

SUBMITTED BY - SUBMITTED TO - ,

Sarthak Sharma Dr. Bajirao Rajwade

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 ACKNOWLEDGEMENT

This project encompassing the powers of the police department in terms of search/seizure of
person/property has been extremely riveting and has opened my mind to the nitty-gritties of
criminal law in India by dispensing me with further knowledge of the interaction between the
judiciary and the executive forces in India. I would like to thank my Indian Penal Code
Professor, Dr. Bajirao Rajwade for his unconditional time, support and guidance throughout this
project.

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INTRO

Search and seizure is a procedure used in much civil law and common law legal systems by
which police or other authorities and their agents, who, suspecting that a crime has been
committed, commence a search of a person's property and confiscate any relevant evidence
found in connection to the crime.
Some countries have certain provisions in their constitutions that provide the public with the
right to be free from "unreasonable searches and seizures". This right is generally based on the
premise that everyone is entitled to a reasonable right to privacy.
Though specific interpretation may vary, this right can often require law enforcement to obtain a
search warrant or consent of the owner before engaging in any form of search and seizure. In
cases where evidence is seized in a search, that evidence might be rejected by court, by moving
a motion to suppress the evidence under the exclusionary rule.

Search– The term ‘search’ denotes that action of government machinery which includes looking
through or examining carefully a place, area, person, object, etc. in order to find something
concealed or for the purpose of discovering evidence of a crime. Such search of a person or
vehicle or premises or of any other thing can only be done by taking proper and valid permission
of law.

Seizure– The act of seizing is well known as seizure. It is a forceful action in which an object or
person is suddenly taken over, grabbed, removed, or overwhelmed.

As regards to English approach in previous days, in the Miller v. United States it was stated that
“The poorest man may in his cottage bid defiance to all the force of the Crown. His cottage may
be frail, its roof may shake, the wind may blow through it, the storms may enter, the rain may
enter but the king of England cannot enter. No matter the nature of forces, they dare not cross
the threshold of the ruined tenement.”

Gradually, it came to be recognized that the power of search and seizure was a necessary power
in the interest of the community and without it, the process of law enforcement might suffer to

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the detriment of public interest and therefore, subsequent legislation in England started
conferring such power on the police and various other officers from time to time. In India too,
the power of search and seizure for prevention and investigation of offences was for the first time
conferred under the Code of Criminal Procedure and since search and seizure is a process
exceedingly arbitrary in character, stringent statutory conditions were imposed on the exercise of
the power.

The Madras High Court in the R.S. Jhaver v. Commissioner of Commercial Taxes, case
elucidates the point: “All that is necessary therefore, is that there should be a balance struck,
just and equitable, in all the circumstances between the sanctity of the property or individual
rights and the interest of the community in law enforcement either in regard to tax collection or
suppression of crimes or any other by the insistence upon proper safeguard against oppression
or violation of guaranteed basic rights under the Constitution”.

Let us take a look at how the Indian legislations handle this balance:-

Search and seizure is also a significant stage in the process of effective investigation. There are
two ways by which the police can affect search and seizure. One under a warrant issued under
any of the provisions of Sections 93, 94, 95, and 97 and the other is without a warrant under any
of the provisions of Sections 103, 165 and 166. General provisions as to search and seizure are
set out in Section 100 of CrPC. The procedure laid down in the section is generally followed in
offences committed under the Indian Penal Code as well as in special and local laws with a little
variance. Thus, in all circumstances of search and seizure, the investigating police should follow
the procedures laid down under Sections 100 and 165 CrPC.

Search of arrested person: - Whenever an arrested person cannot legally be admitted to bail, or
is unable to furnish bail, the police officer making the arrest (or to whom the arrested person is
made over after arrest by a private person) may search such a person, and place in safe custody
all articles, other than necessary wearing apparel, found upon him. A receipt showing the articles

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so seized shall be given to such a person. The police’s failure to take out a recovery memo is an
irregularity and was however held not vitiating the trial. Where the arrested person is a woman
the search shall be made by another woman with strict regard to her decency as provided under
Section 51 of CrPC.

Seizure of offensive weapons: - The police officer or other person making any arrest may take
any offensive weapons from the person arrested which he has in his person, and shall deliver all
weapons so taken to the court or officer before which or whom the arrested person is to be
produced under Section 52 of CrPC.

The Police power to search a place: - Under Section 47 of CrPC the police are empowered to
effect search a place and an occupier of a house is under a legal duty to afford to the police, and
to any person acting under a warrant of arrest, all the facilities to search the house for the
purpose of making arrests. If such facilities are denied or obstructions are put in the search, the
police shall have power to use force for getting entry into the house for search and also for the
purpose of liberating himself in case he is detained in the house. These powers are subject to
reasonable restrictions if the part of the house to be searched is in occupation of any pardanashin
woman. In such instances either she should be called out of the house or the search is to done in
the presence of a woman or a woman police.

Section 93-

This section states the situations in which search warrants may be issued. The situations are as
follows-

a) Where the court has certain reasons to believe that any person to whom a summon or
requisition has been addressed, will not duly produce the said document or the thing which is
required,

b) In cases where the said document or thing is in possession of any person but is not known to
the court.

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c) In cases where general search and inquiry are a must for carrying out inquiry, trial or other
proceeding.

d)In cases where only a specific place or part needs to be searched and inspected then in that case
the same shall be explicitly mentioned in the warrant.

e) However, any magistrate other than a district magistrate or chief judicial magistrate shall not
be authorised to search for any document, parcel or other thing in the custody of postal or
telegraph authority.

In the case of V. S. Kuttan Pillai v. Ramakrishnan, the constitutional validity of search warrants
was upheld, wherein it was opined that a search of the premises occupied by the accused does
not by any means results in compelling him to give evidence against himself and hence was not
violative of Article 20(3) of the Constitution of India

Section 100-

This section directs the persons residing in, or being in charge of, any such place where search or
inspection is to be carried out shall allow the officer free ingress and access to all reasonable
facilities for such search.

In case of violation of the above by the owner, the officer may proceed according to section
47(2) of the code of criminal procedure.

In cases where the owner of such places is suspected of concealing any article which is of crucial
importance for the search then in that case such person can also be searched and in case such
person is a woman then the search shall be made by another woman strictly.

It is important that before making the search or inspection the officer is bound to call upon two
or more independent and respected members of the locality, where the search is supposed to take
place and in case if no such person is available or they depict reluctance then in such situation an
order is to be issued to them to make them attend and witness the search.

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The search is carried out in the presence of such witness and a list of all things seized in the
course is prepared and then it is signed by the witness. Anyhow, such witness has no boundation
to attend the court until unless summoned to do so.

Under this section, in the case of Sadhu Singh vs. State of Punjab, it has been stated that in
search or inspection of an enclosed area, public witness should not join, however attempt can be
made to make them join according to the situations and in cases of reluctancy shown by public
witness to join then genuine attempts should be made.

Section 101-

When a search warrant is being executed which is of any place beyond the local jurisdiction of
the court which issues such warrant then in that case, if the thing for which the search is made is
found, shall be immediately taken before the court issuing the warrant. However if the magistrate
which has jurisdiction in such case has the court nearer then such thing shall be taken to that
magistrate having competent jurisdiction.

In Matajog Dobey vs. H.C. Bhari , the court has stated that in cases where salutary provisions
have not been complied with, then this may affect the weigh of evidence in support of the search
and may lead to disbelieving the evidence produced unless the prosecution provides proper
explanation for such lack of compliance to provisions.

What is the power of police in case of seizing certain property?

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Under section 102 of the Code, if any police officer suspects and property to be stolen or if such
thing is found to create suspicion that any offence is being committed then in that case he may
seize such property.

The police officer is supposed to report the seizure to the magistrate with competent jurisdiction
and in cases where the property seized is of such nature that it is inconvenient to transport it to
the court then the officer may execute a bond to the owner of such property to produce the
property before court as and when required.

Here it is to be noted that ‘bank account’ is to be ascertained as property under section 102,of the
code and the police officer has power to seize the operation of such bank account in case such
assets have direct link with the commission of offence for which the investigation is being
carried on. This has been upheld in the case of State of Maharastra vs. Tapas D. Neogy.

Procedure to be followed while carrying out search

● Without a valid search warrant issued by the proper authority, no search of premises
should be carried out
● The presence of a lady officer in the search team is not negotiable.
● The search and seizure should normally be done after sunrise and before sunset.
However if it is conducted after sunset and before sunrise, the grounds as to why it
was felt necessary to take such action and why it was not possible to obtain a warrant
should be recorded and copy of the grounds so recorded must be sent within 72 Hours
to the immediate official superior. However, search, seizure and arrest may be carried
out any time if there is court warrant or if there is authorization from an empowered
gazetted officer or if the gazetted officer himself is carrying out the same.
● The officers before starting the search are required to disclose their identity by
showing their identity cards to the owner of the premises and by taking their
signatures on the search warrant.
● It is also important to take signatures of at least two witnesses on the search warrant
and the search should be made in the presence of such two independent and respected
witnesses of the locality.

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 ● A document known as the Panchnama / Mahazar, should be prepared on the spot
which contains the proceedings of the search. A list of all goods, documents recovered
and seized/detained should be prepared and annexed to this Panchnama/Mahazar. This
document and the list of things seized needs to be invariably signed by the witnesses
and the owner of the premises before whom the search is conducted and also by the
officers who are carrying out the said search.
● After examination of the seized goods or things by the authority, the original copy of
the samples is supposed to be sent to the chemical Examiner within 72 hours through
a test memo for further research.
● It is mandatory here to prepare Form-F and to send it immediately to the respective
authorities.
● Once the search is over, the search warrant should be returned in original to the
issuing authority with a report regarding the outcome of the search. It is necessary that
the names of the officers who participated in the search be mentioned in the search
warrant.
● It is to be noted that a copy of the Panchnama / Mahazar, so formed should be given
to the person in- charge/owner of the premises being searched under
acknowledgement.

Are Search Warrants and seizures an invasion to privacy?

It was when question, arose in the case of M.P Sharma vs. Satish Chandra, in front of the apex
court, that whether search warrant is an infringement to fundamental rights or not, the court then
stated that search warrants and seizures are only means of temporary interference with the right
to hold premises searched and the articles seized. Hence, the court upheld the fact that there is no
infringement of article 19 or article 20(3) of the Constitution.

Since Search warrants and seizures are considered equivalent to invasion of fundamental rights
the code has laid down certain limitations with regard to searches and seizures which are–

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1) The thing or document to be searched or seized must be explicitly mentioned.

2) A magistrate other than a district magistrate or a chief judicial magistrate cannot issue a search
warrant with a respect to a document of postal authority.

3) It is expected that judicial discretion be excercised by the magistrate while issuing search
warrants.

4) The provision to section 100 of Cr.P.C. need to be complied with while exercising search and
seizures.

What is meant by ‘reasons to believe’?

The reason to believe is to have knowledge of facts which, although not amounting to direct
knowledge, would cause a reasonable person, knowing the same facts, to reasonably conclude
the same thing. As per Section 26 of the IPC, 1860, “A person is said to have ‘reason to believe’
a thing, if he has sufficient cause to believe that thing but not otherwise.” ‘Reason to believe’
contemplates an objective determination based on intelligent care and evaluation as distinguished
from a purely subjective consideration. It has to be and must be that of an honest and reasonable
person based on relevant material and circumstances.

Warrant warranted?

As per the law dictionary and as observed in different judicial decisions, the term ‘search’, in the
simplest language, denotes an action of a government machinery to go, look through or examine
carefully a place, area, person, object etc. in order to find anything concealed or for the purpose
of discovering evidence of a crime. The search of a person or vehicle or premises etc., can only

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be carried out under proper and valid authority of law. It is also well established that search
should have a nexus with the crime, it cannot be a random search.

A search warrant is a written order which is issued by a Judge/ Magistrate or a Court to a police
officer or any other person authorizing them to conduct a search of a person, location or vehicle
for evidence of a crime and confiscate illegal evidence of a crime. The court in Kalinga Tubes
Ltd. v. D. Suri and in many other cases has cautioned the police officer to use search warrant
with a little precaution and care and do not abuse their power.

Section 165 of CrPC provides for the circumstances and the way in which search is carried out
by a Police Officer. A police officer while making an investigation should have reasonable
grounds for believing that something very necessary for the purpose of investigation into an
offense which he is authorized to investigate may be found in any place within the local limits of
the police station in which he is in charge. He is also required to make a record in writing
specifying his grounds of belief and why the search was conducted within the limits of such
station.

Section 165 CrPC is enacted as an exception to this general law of searches because it is
recognized that in certain exceptional emergencies it is necessary to empower responsible police
officers to carryout searches without first applying to the courts for authority. The legislature has,
however, attempted to restrict and limit the powers of the police under the section and provided
the concerned citizens with safeguards in order to prevent the abuse of the powers.

When a search has to be conducted in the jurisdiction of another station, whether in the same or a
different district, an officer- in- charge of a police station making an investigation may require
under sub-section (1) of Section 166 CrPC, the officer- in- charge of the former station to make a
search or cause search to be made. But, where there is reason to believe that the delay occasioned
by such a procedure might result in evidence being concealed or destroyed, the investigating
police officer may, under sub-section (3) of the Section 166 of CrPC, make the search himself or
cause the search to be made, in which case, he shall forthwith send a notice of the search together
with a copy of the list prepared under Section 100 CrPC to the officer- incharge of the police

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station, within the limits of which the place searched is situated and to the nearest Magistrate
empowered to take cognizance of the offence.

Conclusion

The authority to search and seizure is an essential power for the betterment of society; Search
and Seizure is an extremely subjective mechanism by nature, and specific procedural limitations
have been placed on the exercise of power. The officers empowered to perform a search and
seizure have specific powers and reporting to a senior official responsibly is required at each
level so that no officer acts in an arbitrary manner.

The authority to search and seize must be specifically prescribed in the law and the officer in
question must act in compliance with the specified rules and procedure laid down. Police officers
are provided with the authority to conduct inquiries, arrest people, conduct searches, conduct
seizures of persons and their property and even use appropriate force in the line of duty; Yet this
power must be exerted within the limits of the law, and when officers exceed those limits they
jeopardize the admissibility of any information gathered for prosecution.

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