Law and You >Procedural Laws > BNSS > General Provisions Relating to Searches (Ss. 44, 102 to 104 BNSS)

Search and seizure is also a significant stage in the process of effective investigation. In the investigation process, “search” means looking into an individual or their property to find evidence, while “seizure” means taking possession of that property once the search is done.  Search can limit a person’s use of their property, but it’s necessary for legal reasons. Also note that the Article 19(5) of the Constitution of India acknowledges that the right to own property isn’t absolute and comes with some restrictions. In this article let us discuss general provisions relating to searches.

There are two ways by which the police can effect search and seizure. One under a warrant issued under any of the provisions of Sections 96, 97, 98, and 100 BNSS and the other is without a warrant under any of the provisions of Sections 108, 185 and 186 BNSS. The procedure laid down in the sections is generally followed in offences committed under the Bharatiya Nyaya Sanhita, 2023 as well as in special and local laws with a little variance. The police may have to effect search and seizure in one or more places. One at the scene of crime and the other at places where the persons involved in crime are hiding and places where the incriminating articles to crime are kept or concealed.

The entire procedure adopted shall be as per Section- 103 & sec-185 of BNSS and the police officer while acting as investigating officer shall fallow the procedure accordingly. The search of place entered by the person sought to be arrested under provision of section 44 of BNSS.

It should be noted that there are certain special and local acts such as the Narcotic Drugs and Psychotropic Substances Act, 1985, Customs Act 1962 etc. which provide for separate search and seizure procedures to be followed by the investigating police.

An officer in charge of a Police Station or an investigating officer, having reasonable grounds for believing that anything necessary for the purpose of investigation of any offence which he is authorized to investigate may be found in any place within the limits of the Police Station of which he is charge or to which he is attached and that such thing cannot in his opinion be otherwise obtained without undue delay, may search the place under section 185 of the BNSS.

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 186 of the BNSS, the officer in charge of the former station to make a search or cause search to be made.

Search of Place Entered by Person Sought to be Arrested

Section 44 of the BNSS deals with the search of a place where a person is believed to be present to be arrested. It outlines the procedures for allowing entry and search of premises where a person to be arrested might be hiding, including the possibility of breaking into the premises if necessary. 

If a police officer or someone acting under an arrest warrant has reason to believe a person they are seeking to arrest is in a specific location, the resident or person in charge of that place must allow them entry and facilitate a search. If entry and search are not granted after making a lawful demand and notification, the officer or individual with the warrant can break into the premises, including outer or inner doors or windows, if necessary to arrest the person. The section also allows breaking into premises to liberate a police officer or other person who has lawfully entered to make an arrest but is detained within. 

Search and Seizure at Crime Scene:

Inspection of scene of crime deserves a skilled methodical observation for the purpose of preparation of Panchnama as required u/s 103 of BNSS. Immediately on entering the scene of crime the investigating officer himself shall minutely observe and keep note of anything and everything in details as it was- if possible photograph/ video to be taken. A care must be taken not to alter, pick up and touch any object before it has been perceived and noted specially their layout. Unauthorised person must not be allowed to interfere and meddle around and touch anything of importance. Accurate sketches of the information must be drawn.

S. 102 BNSS:

Direction, etc., of Search-Warrants:

The provisions of sections 32, 72, 74, 76, 79, 80 and 81 shall, so far as may be, apply to all search-warrants issued under section 96, section 97, section 98 or section 100.

Section 102 of the BNSS deals with the direction and execution of search warrants. It outlines the procedure for issuing search warrants and specifies the provisions that apply to their execution. Essentially, it clarifies how a Magistrate can issue a search warrant and what rules apply when executing it. The Magistrate can issue such search-warrant directing the police to search a specific location or individual for a specific item or evidence. 

The Section specifies that various other sections of the BNSS, including 32, 72, 74, 76, 79, 80 and 81 shall, so far as may be, apply to all search-warrants issued under section 96, section 97, section 98 or section 100. These sections cover various aspects of search warrants, such as the power of officers executing the warrant, the procedure for seizing property, and the rights of the individuals being searched. 

S. 103 BNSS:

Persons in Charge of Closed Place to Allow Search:

(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 44.

(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 222 of the Bharatiya Nyaya Sanhita, 2023 (45 of 2023).

During a search and seizure conducted under Section 103 of the BNSS, it is crucial for the investigating police officer to adhere to specific procedures. Any deviations or violations of these procedures can have adverse consequences for the prosecution case and may invalidate the trial. The processes in these steps have been designed to obtain reliable evidence and exclude possibility of malpractice. It contains 8 sub sections which are explained below:

1. Access and Facilities: Under S. 103(1) BNSS, the person who is in occupation of any place and when that particular place is closed then the authority who has the competent power can search such place which is liable for the inspection and the concerned individual should make all the reasonable facilities to the concerned authority for the search.
2. Entry and Breaking: Under S. 103(2) BNSS, the police officer conducting the search is authorized to enter the premises. If necessary, they can forcefully open outer or inner doors or windows after properly notifying their authority and purpose and demanding admittance. Section 44(2) BNSS includes safeguards to protect the privacy of a pardanashin woman during the search. It’s essential to note that if improper or unlawful obstruction or resistance is encountered during the exercise of this power or the performance of official duty, reasonable means can be used to overcome such obstacles.
3. Search of Persons: Under S. 103(3) BNSS, when the police officer suspects someone from that place to be concealing what is being searched, he can be searched. A woman shall be searched by another woman with strict regard to her decency (modesty).
4. Presence of Witnesses: Under S. 103(4) BNSS, the search must take place in the presence of at least two independent and respectable residents (often referred to as “panch witnesses”) of the locality where the search is being conducted. However, if no such residents from the locality are available or willing to act as witnesses, individuals from another locality can serve as witnesses. It is important to emphasize the respectability of the witnesses rather than their specific locality or independence. The officer or person conducting the search may issue a written order for this purpose. This provision of presence of witness is intended to prevent potential manipulation and unfair practices by those authorized to conduct the search and to ensure that any incriminating evidence claimed to have been found in the searched premises was genuinely discovered there and was not planted by the search party. Having witnesses during a search is always recommended and their absence can weaken or even invalidate the admissibility of evidence regarding the discovered items.
5. Preparation of List: Under S. 103(5) BNSS, the officer conducting the search must prepare a list of all items seized during the search and specify the places where they were found. This list should be prepared by the police officer or the person conducting the search and should be signed by the panch witnesses. Notably, the signature of the accused on the search list is not legally required. Four copies of the list are made. One copy is handed over to the owner or occupant of the house. The second copy is sent to the Magistrate. The third copy is included with the case diary and sent to the superior officer responsible for case diaries. The fourth copy becomes part of the station records, maintaining a record of the search.
6. Presence of Occupant or his Nominee: Under S. 103(6) BNSS, in every case, the occupant of the place being searched or their nominee should be permitted to attend during the search. Denying this permission may raise suspicions about the credibility of the discovered evidence. However, if the presence of the occupier or nominee could cause undue delay and frustrate the purpose of the search, their presence may be dispensed with. One copy of the list of items seized is handed over to the owner or occupant of the house.
7. Under S. 103(7) BNSS, when a person is searched under S. 103(3) BNSS, a list of all things seized from him shall be prepared, and a copy thereof shall be delivered to such person.
8. Under S. 103(8) BNSS, if an individual ordered to act as a witness neglects or refuses to attend and witness the search without reasonable cause, they may be deemed to have committed an offence under Section 222 of the Bharatiya Nyaya Sanhita, 2023 and as per Section 103(8).

Panchnama

A Panchanama is essentially a document recording certain things which occur in the presence of Panchas (Witnesses) and which are seen and heard by them. Panchas are taken to the scene of an offence to see and hear certain things. A panchanama of this kind recorded and relied upon in support of Section 160 of the Bharatiya Sakshya Adhiniyam, 2023.

The Panchnama must in all its facets be truly a factual one incorporating what was actually seen and heard by the witnesses written in their hand and written out and or certified by them as found to be true and correct. Following points shall be considered during making of a Panchnama:

• Panchnama should mention time, date, place, reason for search and authority of search.
• Search list showing the places or persons searched and the things seized in such places or from such persons.
• Search shall be made in the presence of respectable inhabitants of the locality (Panchas) in which the place to be searched is located.
• Panchnama should mention name, occupation, age and address of the Panchas
• Search list prepared after search shall be prepared by the officer and signed by the witnesses (Panchas).
• Persons witnessing the search shall not be required to attend the court as a witness of the search unless specifically summoned by it.
• Copy of the search list shall be delivered to the person searched or the occupant of the place searched at his request.
• Refusal by any person to attend and witness a search is an offence under Section 222 of the Bharatiya Nyaya Sanhita, 2023.
• Personal search of a woman shall be made by another woman, with strict regard to decency.
• The search list shall not only give the description and quantity of the goods seized but also how their marks and numbers, any other distinguishing details.
• The search list shall indicate that the goods as per the inventory list have been seized on the reasonable belief that the same is liable to confiscation under the provisions of Customs Act 1962.
• Further where it is not practicable to seize any such goods, the proper officer may serve the owner of the goods and order that he shall not remove, part with or otherwise deal with the goods except with the prevision’s permission of such officer.

S. 104 BNS:

Disposal of Things Found in Search beyond Jurisdiction:

When, in the execution of a search-warrant at any place beyond the local jurisdiction of the Court which issued the same, any of the things for which search is made, are found, such things, together with the list of the same prepared under the provisions hereinafter contained, shall be immediately taken before the Court issuing the warrant, unless such place is nearer to the Magistrate having jurisdiction therein than to such Court, in which case the list and things shall be immediately taken before such Magistrate; and, unless there be good cause to the contrary, such Magistrate shall make an order authorising them to be taken to such Court.

Section 104 of the BNSS deals with the disposal of things found during a search warrant execution beyond the court’s jurisdiction. Specifically, it outlines what should be done with items found during a search when the search warrant is executed in an area outside the court’s local jurisdiction. 

If a search warrant is executed in an area outside the court’s local jurisdiction and items related to the search are found, these items and a list of them must be presented to the court that issued the warrant. However, if the location where the items were found is closer to a magistrate with jurisdiction in that area than to the court that issued the warrant, the items and the list should be presented to that magistrate. If presented to a magistrate in a different jurisdiction, the magistrate will usually make an order to send the items and the list to the court that issued the warrant, unless there is a good reason not to do so. 

Conclusion:

The provisions related to searches under the Bharatiya Nagarik Suraksha Sanhita, 2023 reflect an attempt to balance effective law enforcement with the protection of individual rights and liberties. While the BNSS retains much of the structure of the Code of Criminal Procedure, 1973, it introduces certain procedural refinements aimed at transparency, accountability, and the use of technology in criminal investigations. Key safeguards such as judicial oversight, proper documentation, and the rights of the person being searched remain central to the process. As the legal community and enforcement agencies adapt to the new code, its success will ultimately depend on consistent implementation, judicial scrutiny, and the evolving jurisprudence that defines the limits and scope of search powers in a democratic society.

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