Search And Seizure – The Best Practices


28 Sep 2023 2:43 PM GMT

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  • Search And Seizure – The Best Practices

    Search and seizure are an important tool in the hands of law enforcement agencies (LEA) to properly investigate a case. The power to search and seize can be exercised by the police either suo moto under section 165 of Code of Criminal Procedure, 1973 (hereinafter referred as CrPC) or under a warrant issued by the court under section 93 CrPC. While the law authorizes the police to...

    Search and seizure are an important tool in the hands of law enforcement agencies (LEA) to properly investigate a case. The power to search and seize can be exercised by the police either suo moto under section 165 of Code of Criminal Procedure, 1973 (hereinafter referred as CrPC) or under a warrant issued by the court under section 93 CrPC. While the law authorizes the police to conduct searches under their authority under section 165 CrPC, the police officer has to show that the exigency of the situation demanded prompt action and that time and circumstances did not permit him to obtain a search warrant from the court. Thus, in sensitive cases and when time and circumstances permit, it is better to approach the Magistrate to issue a search warrant.

    The issuance of a search warrant is not a mechanical act but the court must apply its mind to see whether there is any reason to believe that issuance of such a warrant is necessary and that there is a possibility of finding incriminating material.

    Section 93 CrPC states that the court may issue search warrant in three circumstances: -

    • When the court has reason to believe that a person to whom a summons or order under section 91 CrPC has been or might be issued, would not comply with that summons or order
    • Where the thing for which search is to be made is not known to the court to be in the possession of any person
    • Where a general search or inspection is considered necessary by the court

    I. Search List

    Searches must always be carried out in strict conformity with the law. Provisions of sections 165, 166, 100, 101, 102, and 103 CrPC must be fully complied with. Section 100 CrPC applies to searches made by police either under section 165 CrPC or section 93 CrPC and provides fundamental safeguards to citizens against arbitrary searches. Section 100(5) deals with a search list which is essentially a copy of the record of the entire search & seizure proceeding. Section 101 CrPC provides that when search is conducted beyond jurisdiction of Magistrate issuing warrant, the articles seized during the search together with a list of the same has to be submitted to the court. This search list has to be provided to the Magistrate forthwith after concluding the search proceedings along with the search warrant. A copy of it has to be given to the person whose premises are searched.

    A search list is a document containing details of the search conducted by police. It has to be prepared by the police officer to whom the search warrant has been endorsed or to whom authorization under section 165 CrPC is given. The search list should contain: -

    • Name of the police station
    • FIR No. and sections of law
    • Name and address of the person whose house is searched
    • Name and addresses of witnesses to the search
    • Description of the articles which are seized
    • Description of the place where seized articles are found
    • Any other remarks

    The search list must be signed by the investigating officer, constables accompanying the investigating officer, independent witnesses (at least two), and the person searched.

    The search list should contain the name of the court by whom the search warrant was issued and the name of the IO to whom it was addressed. In case the IO is deputing any subordinate officer to conduct the search, his name must be endorsed on the original search warrant and returned to the court after execution of the search.

    The search list should mention the time when the search team reached the premises and the time when it left. The description of the premises which are searched should be given e.g., whether it is private or government accommodation, number of bedrooms, halls, balconies, lockers, etc. If any incriminating documents were found on the premises or taken into police possession, the same should be mentioned. The exact location from where the document/article is seized must be mentioned location-wise/room-wise because the exact spot and manner of recovery of a document, article, cash, etc. may have significant evidentiary value in certain cases for example, disproportionate assets cases.

    Whenever a property is seized by police in pursuance of a search warrant, the property comes under the custody of the court and if the LEA wants to retain the property for the purpose of investigation, it must make an application to the court under section 457 CrPC.

    The search list should be prepared on the spot and not after reaching the police station. Efforts should be made to prepare the search list using the official laptop and printer of police personnel.

    II. Good practices while conducting searches

    The search team should be cognizant of the following things while raiding/searching any premises: -

    • The search team should introduce itself and the purpose of the visit. The Identity cards of the police personnel, search warrant, and the FIR should be shown to the person whose premises are to be searched. The owner of the premises should be given an opportunity to go through the contents of the search warrant and his signatures should be taken on the warrant as a token of having seen the same.
    • The search team should politely offer their personal search before entering the premises so as to remove any apprehension from the mind of the owner that the police party may plant anything secretly in the house. Similarly, the search team should offer their search before leaving the premises. This fact should also be mentioned in the search list.
    • The search list should mention the time of commencement and conclusion of search proceedings.
    • No harm should be caused to any person or damage to any property. If the occupier of the premises does not cooperate in the search, then reasonable means can be employed to restrain him from causing a nuisance.
    • Due decency should be shown towards the female inmates of the house.
    • A copy of the search list should be provided to the person searched with proper acknowledgment.
    • All legal and codal formalities should be observed before, during, and after the search proceedings.
    • Once the search party reaches the house, it should physically take charge of all telephones so that the possibility of leakage of information can be negated.
    • The members of the search party should behave politely with the inmates of the house/place which is the subject matter of the search. Women, the elderly, and specially-abled persons should be treated properly.
    • Even though the search should cover the entire premises, due respect should be shown to the place of worship in the premises.
    • If any cash is found in the premises, then the denomination and the total amount should be recorded. The owner should be asked the reason for the accumulation of such cash. If the reasons are satisfactory (for example, he may say that the cash amount is his personal savings or gifts made to him, etc.), the same may be returned to him after counting. The fact regarding return of money should be mentioned in the search list.
    • Efforts should be taken to complete the search during day time. But if the search of the entire premises cannot be completed on the same day, then the portion of the premises which is left should be sealed and secured under a proper guard.
    • It is nothing but prudent that once the search operation has begun, no resident should be allowed to leave the premises and no outsider should be allowed to enter the premises.
    • It is but natural that search party should have control over all entry and exit points to the premises. However, police party should be sensitive enough that in case of genuine medical emergencies or where there are school-going children, they may be permitted to go and come after a proper personal search.
    • Wherever practicable, the search operation should be videographed.
    • Where incriminating material is found, colour photography of various parts of the house may be done. In such cases the photographer should sign at the back of those photographs and his 161 CrPC statement should be recorded.

    III. Digital evidence

    The contemporary world is a virtual world. Today, not only cybercrimes but even conventional crimes are committed with the use of computer resources/computer networks or electronic gadgets like smartphones, laptops, etc.

    Laptop/smartphone has today replaced the workspace. Hence whenever a smartphone is seized during the investigation of a crime, it is essentially like searching the entire workspace from where an offence may have been committed. Unlike conventional office space, a smartphone/laptop is not limited to its physical dimensions as data can be stored on it not only remotely through cloud applications or remote servers but even in locked-up folders that are not easy to access. Computer-based evidence is very fragile in nature. Information stored on such equipment can be lost inadvertently by clicking a button or giving a wrong command, which results in the destruction of crucial evidence of the case. Hence the thrust of the searches should be to look for digital/electronic devices that contain such digital records and evidence. Search parties should particularly look for desktop computers, laptops, ipads, notepads, pen drives and other storage disks, mobile phones, surveillance equipment like CCTV cameras, etc. containing incriminating digital evidence. Email exchanges by the accused and suspect persons on the subject of the investigation may be of special significance from the point of view of electronic evidence. All devices used for exchanging mail by such persons should be particularly looked for, email IDs identified, and passwords noted in the seizure memo.

    That first and the foremost thing which must be ensured during investigation is that I.O. should take the hash value of the electronic record at the time of seizure. The use of Hashing to authenticate electronic records is detailed in section 3(2) of the IT Act, 2000. Hashing procedures must be done before packaging the hard disks and hash values must be recorded in the seizure memorandum. This would maintain the sanctity of digital evidence from the inception and no allegation will be raised from the other side.

    Whenever any electronic equipment is to be searched, a forensic expert should accompany the search team to better appreciate the handling of such digital/electronic equipment.

    The IO must carry out the search of smartphones/computers/any other electronic gadget in a scientific manner to maintain the sanctity of the search of electronic devices/computers. In this respect, proper training for the IOs pertaining to handling and preserving digital evidence must be given.

    If during the investigation or at the time of seizing the document, it is necessary to access the data to ascertain any lead, the use of Right Blocker must be done so that the relevant data should not be tampered with and no allegation regarding tampering by access may be made.

    While conducting searches in a computerized environment, it would be better to have computer literate witnesses.

    IV. Changes introduced in Bhartiya Nagrik Suraksha Sanhita Bill 2023

    The newly introduced Bhartiya Nagrik Suraksha Sanhita Bill 2023, (hereinafter referred to as BNSS Bill) has brought some sweeping changes in the chapter pertaining to ‘processes to compel production of things’. Earlier section 91 CrPC, empowered the officer in charge of a police station or court to issue a written order/summons to produce a document or other thing which is necessary for the purpose of investigation, inquiry, trial, or other proceeding. Now section 94 of BNSS Bill which is akin to section 91 CrPC, has enlarged the scope of authority to order the production of any document, electronic communication, including communication devices which is likely to contain digital evidence or other thing.

    The Information Technology Act defines communication device under section 2(ha) to include cell phones, personal digital assistance, or combination of both or any other device used to communicate, send or transmit any text, video, audio or image. Therefore, now the IO, in its section 94 BNSS notice can issue a written order to produce a mobile or laptop or any other electronic device. This has wide ramifications, as a mobile or a laptop is an entire workspace in itself. It can give access to bank account details, email communications, financial transactions, WhatsApp chats, social media accounts, internet search history, orders placed on e-commerce websites, photographs and images stored in a cloud network, etc. Not to mention that people who work from home (WfH), their electronic devices are an important means of livelihood. The non-compliance with an order under section 94 BNSS is a punishable offence under section 175 Indian Penal Code (now, section 208 of Bhartiya Nyay Bill, 2023). Similarly, section 96 of BNSS empowers the court to issue search-warrant for the purposes mentioned in section 94 of BNSS if the court has reason to believe that the order under section 94 of BNSS will not be complied with. Section 69 (1) of the IT Act empowers the specified officers to pass orders compelling decryption of information stored in any computer resource which would also include a smartphone.

    Until now there was no particular framework in CrPC for search of a smartphone or electronic equipment. The general provisions of search and seizure were applicable to search and seizure of electronic gadgets. The safeguards prevalent in a normal search and seizure will have to be modified when the articles to be searched is an electronic equipment. The Hon’ble Karnataka High Court in VirendraKhanna v. State of Karnataka WP No. 11759/2020 has ruled that,

    “Once an investigating officer has access to the said smartphone, electronic equipment, or e-mail account, he would have complete access to the data. Such data though may not be incriminatory, may be very private or secret to the person or such data could incriminate the said person in any particular offence………the responsibility of safeguarding the information or data which could impinge on the privacy of a person will always be that of investigating officer”.

    The Hon’ble High court has further observed that,

    “There are no rules formulated by police department regarding the manner of carrying out a search and/or for preservations of the evidence gathered during the said search in respect of smartphone……….it would be in the interest of all stakeholders that detailed guidelines are prepared by the police department.”

    Hon’ble Karnataka High Court in the abovementioned case has passed a slew of guidelines that the search party must adhere to while searching and preserving electronic gadgets. Against this backdrop, even the Hon’ble Supreme Court in Ram Ramaswamy vs. Union of India & others WP(Crl.) No. 138 of 2021, has sought a response from LEAs in a petition seeking guidelines for the search and seizure of personal electronic devices.

    The code of criminal procedure deals with the manner of search and seizure of documents and articles. Search and seizure are effective weapons in the hands of investigation agency but this weapon has to be used after due circumspection so that it does not lead to harassment of innocent people. Now with the introduction of Bhartiya Nagrik Suraksha Sanhita Bill 2023, the power to search, seize and summon has been statutorily extended to electronic equipment. The safeguards provided in the code are necessary to balance the interest of accused and investigation agency. The Hon’ble Apex Court in Dr. Pratap Singhv. Director of Enforcement Foreignexchange Regulation and others (1985) 3 SCC 72, has ruled that failure to comply with the safeguards enshrined in the code, might make the search illegal, however the illegality of the search would not make any seizure made during the search as inadmissible. But the probative value of the article seized can be questioned. Today, there is a need to statutorily frame guidelines for the search and seizure of digital equipment in a scientific manner so that the integrity of the digital record can be maintained.

    The author is an Assistant Public Prosecutor at the Central Bureau of Investigation. Views are personal.

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