Section 193(3) Of The BNSS: Sequence Of Custody

Clause (i) of sub-section (2) of Section 173 of the Code of Criminal Procedure, 1973 (for short 'the Code') states the requirements regarding the contents of a police report (charge-sheet) which shall be forwarded to the Magistrate by the officer in charge of the police station, after completing the investigation of a case. This provision now stands replaced by clause (i) of sub-section (3) of Section 193 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (for short 'the BNSS').

Clause (i) of sub-section (3) of Section 193 of the BNSS, when compared to clause (i) of sub-section (2) of Section 173 of the Code, provides for inclusion of an additional item in the police report/charge-sheet. This additional requirement is mentioned, in sub-clause (i) [after sub-clause (h)] of clause (i) of sub-section (3) of Section 193 of the BNSS, as “the sequence of custody in case of electronic device”.

What is meant by 'sequence of custody'?

“Sequence of custody” means “chain of custody”. In the case of Prakash Nishad @ Kewat Zinak Nishad,¹ the Supreme Court had dealt with an appeal by a person, who was convicted by the trial court for committing the offences of rape and murder. The Apex Court ultimately allowed the appeal and acquitted the accused. It was a case of brutal rape and murder of a tender child aged six years. There was only circumstantial evidence to prove the prosecution case against the accused. The entire prosecution case against the accused was more or less based on the report of DNA analysis which disclosed that stains of semen of the accused were on the dress belonging to the victim and that the vaginal swabs and blood stains found on the banian of the accused were that of the victim. The Supreme Court found that there was no evidence of medical examination of the accused in compliance with the statutory requirements imposed under Section 53A of the Code and that there was unexplained delay in sending the samples to the Forensic Science Laboratory for analysis and “the possibility of contamination and the concomitant prospect of diminishment in value cannot be reasonably ruled out”. Therefore, the Apex Court reached the conclusion that the reliability of the DNA report in that case was not infallible and the charges levelled against the accused could not be proved.

In the case of Prakash Nishad, the Supreme Court had laid emphasis on the need to establish the 'chain of custody' of the DNA samples to rule out their contamination. Emphasis was also made on documentation of the chain of custody. The Apex Court referred to the guidelines issued by the Ministry of Home Affairs, Government of India, to explain what is meant by chain of custody.

Chain of custody implies that, right from the time of taking of the sample, to the time when its role in the investigation and subsequent processes is complete, each person handling the sample being duly acknowledged in the documentation, so as to ensure that the integrity of the sample is not compromised. A chain of custody document is a document, which should include, the name or initials of the individual collecting the evidence, each person or entity subsequently having custody of it, the date on which the items were collected or transferred, the details of the investigating agency and the case number, the names of the victim and the suspect and a brief description of the item collected.

The decision in “Kattavellai @ Devakar”

Recently, in the case of Kattavellai @ Devakar v. State of Tamil Nadu,² the Supreme Court has issued certain directions with regard to the common procedure to be followed in the collection and preservation of DNA evidence. The directions issued are the following:

• The collection of DNA samples once made after due care and compliance of all necessary procedure including swift and appropriate packaging including, (a) FIR number and date; (b) Section and the statute involved therein; (c) details of the investigating officer, police station; and d) requisite serial number, shall be duly documented. The document recording the collection shall have the signatures and designations of the medical professional present, the investigating officer and independent witnesses (the absence of independent witnesses shall not be taken to be compromising to the collection of such evidence, but the efforts made to join such witnesses and the eventual inability to do so shall be duly put down in record).
• The investigating officer shall be responsible for the transportation of the DNA evidence to the concerned police station or the hospital concerned, as the case may be. He shall also be responsible for ensuring that the samples so taken reach the concerned forensic science laboratory with dispatch and in any case not later than 48 hours from the time of collection. Should any extraneous circumstance present itself and the 48 hours timeline cannot be complied with, the reason for the delay shall be duly recorded in the case diary. Throughout, requisite efforts shall be made to preserve the samples as per the requirement corresponding to the nature of the sample taken.
• Pending trial, appeal etc., no package containing DNA samples shall be opened, altered or re-sealed without express authorisation of the trial court acting upon the statement of a duly qualified and experienced medical professional to the effect that the same shall not have a negative impact on the sanctity of the evidence and with the Court being assured that such a step is necessary for proper and just outcome of the investigation/trial.
• Right from the point of collection to the logical end, i.e., conviction or acquittal of the accused, a Chain of Custody Register shall be maintained wherein each and every movement of the evidence shall be recorded with counter signature at each end thereof, stating also the reason therefor. This Chain of Custody Register shall necessarily be appended as part of the trial court record. Failure to maintain the same shall render the investigating officer responsible for explaining such lapse.
• The Directors General of Police of all the States shall prepare sample forms of the Chain of Custody Register and all other documentation directed above and ensure its dispatch to all districts with necessary instruction as may be required.

Thus, practically, the Supreme Court has made the provision contained in clause (i) of sub-section (3) of Section 193 of the BNSS, regarding sequence of custody, applicable to DNA evidence also.

Cases under the NDPS Act

In cases dealing with offences under the Narcotic Drugs and Psychotropic Substances Act, the Supreme Court had, even decades back, pointed out the obligation of the prosecution to establish that the samples had reached the analyst without any tampering. In State of Rajasthan v. Daulat Ram,³ it was held that all the links starting from the seizure of the samples till the same reached the hands of the analyst shall be proved so that the court could conclude that the seals on the sample packets remained intact throughout.

In Valsala v. State of Kerala,⁴ the Apex Court had held that, when the prosecution has got a case that the sample was kept in the police station before it was produced in the court, it is necessary to prove that it was kept in proper custody and proper form.

More recently, in State of Uttar Pradesh v. Hansraj @ Hansu,⁵ it has been held that there shall be evidence to show as to, how and at what time and date, the samples were taken by the carriers for analysis. Emphasis was laid on the necessity for the prosecution to lead evidence to show as to how and in what conditions the articles were preserved at the police station and how safely they were taken from there to the chemical examiner by the carriers.

In Hanif Khan @ Annu Khan v. Central Bureau of Narcotics,⁶ it was observed as follows:

“There is no credible evidence that the FSL sample produced related to the very same contraband stated to have been seized from the appellant. ……There can hardly be any difference between a case of non-production of a sample and the production of a sample doubtful in its identity in being co-related to what was seized from the accused. In both the cases, it will become doubtful if the FSL Report is with regard to the very sample seized from an accused”.

Again, in Vijay Pandey v. State of Uttar Pradesh,⁷ it has been held that the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related.

Conclusion

The report being submitted by the police officer under Section 193(3) of the BNSS is a very important piece of document from the view point of the prosecution, the defence and the court. In Dablu Kujur v. State of Jharkhand,⁸ the Supreme Court has directed that the investigating officer shall strictly comply with the requirements under Section 173(2) of the Code (Section 193(3) of the BNSS). Therefore, it is now mandatory that the police reports (charge-sheets) forwarded to the court by the police officer shall contain the sequence of custody, in cases involving electronic devices and DNA evidence.

Collecting or drawing the samples and preserving them properly in compliance with the statutory requirements, if any, and taking steps, without any delay, to send the samples for analysis are indispensable to ensure the purity of such evidence. The investigating officer has to take precautions against potential contamination of physical evidence which may occur during collection, packing and forwarding and he has the obligation to preserve the evidence without any contamination or damage. As observed by the Supreme Court in Prakash Nishad, the investigating officer, in ensuring a fair and proper investigation into crimes affecting the society, has also a moral duty to take all possible steps within the letter of the law to bring the offenders to the book.

Author is Former Judge, High Court of Kerala

Views Are Personal

References: 

1. Prakash Nishad @ Kewat Zinak Nishad v. State of Maharashtra: 2023 LiveLaw (SC) 461
2. 2025 LiveLaw (SC) 703: 2025 SCC OnLine SC 1439.
3. AIR 1980 SC 1314.
4. AIR 1994 SC 117.
5. (2018) 18 SCC 355.
6. (2020) 16 SCC 709.
7. AIR 2019 SC 3569.

8.  2024 LiveLaw (SC) 227