Law and You >Procedural Laws > BNSS > Miscellaneous Provisions Relating to Searches (Ss. 105 to 109 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 previous articles, we have discussed general provisions related to searches. In this article let us discuss miscellaneous provisions relating to searches.
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
S. 105 BNSS:
Recording of Search and Seizure through Audio-Video Electronic Means:
The process of conducting search of a place or taking possession of any property, article or thing under this Chapter or under section 185, including preparation of the list of all things seized in the course of such search and seizure and signing of such list by witnesses, shall be recorded through any audio-video electronic means preferably mobile phone and the police officer shall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class
This is a new provision under the BNSS, unlike the previous CrPC, which did not have a specific mandate for audio-video recording of search and seizure.
Section 105 requires police officers to record the entire search and seizure process using audio-video equipment, such as mobile phones. The recorded evidence must be promptly forwarded to the District Magistrate, Sub-divisional Magistrate, or Judicial Magistrate of the first class. This provision aims to enhance transparency in police procedures and ensure that searches are conducted lawfully and fairly, protecting the rights of individuals involved.
In addition to the audio-video recording, a search list is also prepared, signed by witnesses, and included in the documentation.
This section is applicable to the search of any place or the seizure of any property, article, or thing.
S. 106 BNSS:
Power of Police Officer to Seize Certain Property:
(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.
(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.
(3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same:
Provided that where the property seized under sub-section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of sections 503 and 504 shall, as nearly as may be practicable, apply to the net proceeds of such sale.
Section 106 empowers law enforcement to secure property that may be connected to a crime, while also providing guidelines for its proper management and disposal.
According to Section 106 BNSS, a police officer can seize any property that is suspected of being stolen or found under circumstances that raise suspicion of an offense. If the seizing officer is subordinate to the officer in charge of a police station, they must report the seizure to their superior. Additionally, all seizures must be reported to the Magistrate with jurisdiction.
If the seized property is difficult to transport or store, or if its retention in police custody is not deemed necessary for the investigation, the police officer can entrust it to someone who executes a bond to produce it before the court when required.
If the seized property is subject to speedy and natural decay and the owner is unknown or the property’s value is low, the Superintendent of Police can order its sale through auction.
S. 107 BNSS:
Attachment, Forfeiture or Restoration of Property:
(1) Where a police officer making an investigation has reason to believe that any property is derived or obtained, directly or indirectly, as a result of a criminal activity or from the commission of any offence, he may, with the approval of the Superintendent of Police or Commissioner of Police, make an application to the Court or the Magistrate exercising jurisdiction to take cognizance of the offence or commit for trial or try the case, for the attachment of such property.
(2) If the Court or the Magistrate has reasons to believe, whether before or after taking evidence, that all or any of such properties are proceeds of crime, the Court or the Magistrate may issue a notice upon such person calling upon him to show cause within a period of fourteen days as to why an order of attachment shall not be made.
(3) Where the notice issued to any person under sub-section (2) specifies any property as being held by any other person on behalf of such person, a copy of the notice shall also be served upon such other person.
(4) The Court or the Magistrate may, after considering the explanation, if any, to the show-cause notice issued under sub-section (2) and the material fact available before such Court or Magistrate and after giving a reasonable opportunity of being heard to such person or persons, may pass an order of attachment, in respect of those properties which are found to be the proceeds of crime:
Provided that if such person does not appear before the Court or the Magistrate or represent his case before the Court or Magistrate within a period of fourteen days specified in the show-cause notice, the Court or the Magistrate may proceed to pass the ex parte order.
(5) Notwithstanding anything contained in sub-section (2), if the Court or the Magistrate is of the opinion that issuance of notice under the said sub-section would defeat the object of attachment or seizure, the Court or Magistrate may by an interim order passed ex parte direct attachment or seizure of such property, and such order shall remain in force till an order under sub-section (6) is passed.
(6) If the Court or the Magistrate finds the attached or seized properties to be the proceeds of crime, the Court or the Magistrate shall by order direct the District Magistrate to rateably distribute such proceeds of crime to the persons who are affected by such crime.
(7) On receipt of an order passed under sub-section (6), the District Magistrate shall, within a period of sixty days distribute the proceeds of crime either by himself or authorise any officer subordinate to him to effect such distribution.
(8) If there are no claimants to receive such proceeds or no claimant is ascertainable or there is any surplus after satisfying the claimants, such proceeds of crime shall stand forfeited to the Government.
Section 107 of BNSS provides a framework for the state to seize and manage assets derived from criminal activities, ensuring that proceeds of crime do not remain with offenders and are forfeited to the government or restored to rightful claimants.
Attachment and Forfeiture:
If a police officer investigating a case believes that any property was acquired through criminal activity, they can request the court or magistrate to seize it. The court or magistrate, after reviewing the evidence and giving the concerned parties a chance to be heard, can order the attachment of the property if it’s deemed to be proceeds of crime. A notice is issued to the person holding the property, requiring them to explain why it shouldn’t be seized. The court then considers their explanation before making a decision. If the person doesn’t respond within the specified time (14 days), the court can proceed with an ex parte order, meaning a decision can be made in their absence.
In situations where giving notice could jeopardize the seizure, the court can order immediate attachment, which remains in effect until a final decision.
If no one claims the property or if there’s a surplus after satisfying claims, the property can be forfeited to the government.
Restoration:
The law provides a mechanism for those who believe they have a legitimate claim to the property to come forward and present their case. The court will consider the claims and evidence presented and decide whether to restore the property to the claimant.
Unlike CrPC, BNSS allows for attachment and forfeiture at any stage of the investigation, even before a final judgment. The process is streamlined, allowing for quicker action against proceeds of crime.
The law aims to balance the need to tackle crime with the protection of property rights, although there may be legal challenges regarding this balance.
The process emphasizes giving notice and providing an opportunity to be heard, promoting transparency and accountability in the handling of seized assets.
S. 108 BNSS:
Magistrate may Direct Search in his Presence:
Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search-warrant.
Section 108 of the BNSS, allows a Magistrate to personally supervise a search operation. Instead of just issuing a search warrant, the Magistrate can direct the search to be carried out in his own presence. This provision ensures greater transparency, fairness, and legal accountability during searches, especially in sensitive or serious cases.
S. 109 BNSS:
Power to Impound Document, etc., Produced:
Any Court may, if it thinks fit, impound any document or thing produced before it under this Sanhita.
Section 109 of the BNSS, grants any Court the authority to impound documents or items that are presented before it. The Court has the discretion to decide whether or not to exercise this power.
For example, a party presents a suspicious document as evidence in a case. The Court may choose to impound that document if it finds it necessary for further investigation.
Conclusion:
The provisions on searches and seizure under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 mark a significant evolution in India’s criminal procedural law. While largely building upon the framework of the erstwhile Criminal Procedure Code (CrPC), the BNSS aims to introduce greater clarity, transparency, and efficiency. It emphasizes the protection of individual rights by codifying judicial safeguards, promoting technological integration (such as audio-visual recordings), and ensuring accountability of law enforcement agencies. However, the practical effectiveness of these reforms will ultimately depend on robust implementation, continuous training of personnel, and vigilant oversight. As India moves forward with this new legal regime, balancing state powers with civil liberties will remain a cornerstone for upholding the rule of law.