SEARCH.

SEIZURE AMP PERSONAL LIBERTY IN INDIA

A. INTRODUCTION
If human rights are not embodied in the constitution and the law, or even if
guarantees are not respected, no citizen would be safe against tyranny and
authoritarianism of the government. The principles of criminal justice also envisage
the safeguards to person and personal liberty. Prior to the commencement of the
Indian Constitution the administration of criminal justice was fully governed by the
provisions of the Criminal Procedure Code and the Evidence Act. These are mainly
concerned not with the individual's liberty but with security of the state and public
peace. After the independence/Part III and Part IV of the Indian Constitution enshrined
the long-cherished desires of the people of India in the form of fundamental rights and
directive principles of state policy. Among others, articles 20,21 and 22 of the Indian
constitution especially incorporate the respect for human personality and security of
life and liberty. Articles 20 provides immunity against double jeopardy and also
protects against the testimonial compulsions and article 21 declares in unequivocal
H
terms that No person shall be deprived of his life and personal liberty except
according to procedure established by law". Article 21 has been the subject of one of
most remarkable developments of law in recent times.
The Supreme Court had for a long time taken the view that this article
merely embodies the Diceyian concept of rule of law viz. that the executive cannot
interfere with the life or personal liberty of a citizen except by authority of law.
Impliedly, interference with individual liberty under law is alright howsoever
Draconian the law may be. But for the first time in Maneka Gandhi case, the
Supreme Court held, that it is not enough merely that there is a law authorising
deprivation of life or personal liberty but such law should prescribe a procedure for
doing so and such procedure should be reasonable, fair and just. On this
interpretation of article 21 a person cannot be deprived of his life or personal liberty
except under the authority of law which prescribes a reasonable, fair and just
procedure.
Article 22 provides protection against arrest and. detention in certain cases.
Clause 1 of that article provides that arrested person shall be informed about the
grounds of arrest without unnecessary delay and the person arrested shall have a
right to consult and be defended by a legal practitioner of his choice which further
provides that no arrested person shall be kept in police custody beyond a period of
24 hours without the authority of a Magistrate.
One of the basic principles of criminal jurisprudence which governs our
criminal law; is that every man is supposed to be innocent unless proved guilty
beyond doubt. 'This cardinal principle finds place in our criminal justice system is
subject to certain exceptions in case of weaker section of the society i.e. women
where there are certain presumptions against the theory of innocence and the
accused have to prove that he is not guilty as in cases of rape and dowry deaths.
The safeguard contained in clause 3 of Article 20, the privilege against self-
incrimination has been incorporated in the Code of Criminal Procedure, in section
161, but it is not free from controversy as to which of the two interests shall prevail,
the interest of the possibly innocent or the interest of the society in detecting the
crime and punishing the guilty. To strike a balance between the needs of law
enforcement on the one hand and the protection of the citizen from the oppression
and injustice at the hands of the law enforcement machinery on the other hand is the
problem of the State. The emphasis has shifted in balancing the interests. It enacts a
measure of protection against compelled testimony through police torture, violence
or over-bearing and intimidatorv methods which are unfortunately still prevalent.
The Supreme Court in Nandini Satpathy v, P L Dani exhaustively dealt with
the Philosophy behind the privilege against self-incrimination and delineated the
contours of this privilege, the Court pointed out that the prohibitive sweep of
protection against self- incrimination goes back to the stage of police interrogation
and is not confined to court proceedings.
The ban on self-accusation and the right to silence go beyond the case in question
and protect the accused in regard to the other offences pending or imminent which
may deter him from voluntary disclosure of incriminatory matter. The Court held that if
there is any mode of pressure subtle or crude, mental or physical direct or indirect but
sufficiently substantial applied by the police in obtaining information from the
accused, strongly suggestive of guilt it becomes compelled testimony violative of the
privilege against self-incrimination.
This ruling of the Court in Nandini Satpathy’s case has not made any
appreciable change in the exercise of investigatory powers in actual practice. It is only
possible when we have highly sophisticated police force with special skill and
techniques and modern scientific methods of investigation, that police can detect and
investigate offences without resorting to testimonial compulsion during custodial
interrogation and. comply in letter and spirit with the ruling of Nandini Sathpathy case.
Administration of criminal justice involves a number of essential processes
which are partly ministerial and partly judicial in nature. The pre-trial activity in a
criminal proceeding is largely an administrative process undertaken to initiate judicial
action. The necessary phases in this process are arrest and detention of the suspects,
apprehending of the offenders, search of person and premises for collecting material
evidence so as to present the offenders in court of law for the prosecution. These
activities are to be conducted in accordance with the legal norms and directions set
by law of the land for enforcement of criminal justice and such law must be in
consonance with the constitutional principles.
The powers of search and seizure in the executive authorities of the state came to be
recognised in the interest of community at large and for the sake of safety of the
society in particular. This power of search vested in the executive directly affects the
personal liberty and right to privacy of an individual. The personal liberty includes the
right of privacy, the contours of which still remain undefined. There is no guaranteed
right to privacy in the Indian constitution but efforts have been made to evolve it from
out of article 21. On the one hand the Supreme Court wants to go to the extent of
expanding the scope and ambit of the personal liberty, and on the other in Puran Mal
case (AIR 1974 SC 348), the court frowned upon elevating the right to privacy to the
status of fundamental right. The Supreme Court also thus restricted the right to
privacy vis-à-vis search and seizure.
Now the question arises as to whether the search conducted under the
provisions of the criminal law is hit by article 20(3) of the Constitution of India? In
M.P.Sharma (AIR 1954, SC 300) case it was held by their Lordships that, having
regard to the historical background regarding Indian criminal procedural law
concerning searches, interposition of the judicial functions while ordering searches
and the person to whom the orders regarding searches are made, such searches
were not tantamount to testimonial compulsion to the accused person and for that
reason there was no invasion of fundamental right guaranteed by article 20(3) of the
Constitution of India.
In every case of arrest the person arresting shall communicate to the
arrested person without delay, the grounds of his arrest. This is fundamental right of
the arrested person under article 22, it gives him an opportunity to remove any
mistake, mis-apprehension or mis-understanding, if any, in the mind of the person
arresting. It also enables him to apply for bail, for a writ of habeas Corpus or to make
other expeditious arrangement for his defence.
The right of an arrested person to be produced before a magistrate within
24 hours has been incorporated in the constitution as one of the fundamental rights
under article 22. It is necessary to prevent arrest and detention for the purpose of
extracting confession or as a measure of compelling people to render information
and to afford an early recourse to judicial scrutiny by a judicial officer regarding the
grounds of arrest, bail , and discharge.
In normal practice there is sometimes violation of these rights, because
cases are not unknown where the persons are arrested by the .police but no entry of
arrest is made in the daily diary register and it is only when the police, decides to
produce the person arrested before the magistrate that they make an entry in the
register according to their convenience. This type of violation of constitutional or legal
right can be easily avoided if the people are conversant with the rights and there is a
greater awareness and the law and the magistracy is also keenly sensitive to the
rights of the people.
For the purposes of proper investigation, enquiry or trial, the relevant
documents and other material objects should be available to the law enforcing
agencies conducting such proceedings. If any person possessing such relevant
documents or things fails to produce the things required by the police for
investigation purposes, coercive methods are employed for obtaining these material
objects. The Code of Criminal Procedure, therefore, provides initially for summons to
produce any documents or things, but if it is apprehended that this method will not
suffice or the person to whom the summons is issued fails to produce the documents
or things required. The court has no option but to issue orders to the police for the
search and seizure of such documents and things. If the exigency of the investigation
requires the immediate search of a place, the police officer making the investigation is
empowered to search even without obtaining a warrant ( Sec 165 CrPC) from a
magistrate.
The coercive methods employed by the police for obtaining evidence by searching
the premises occupied by a person is a serious inroad upon the rights of an individual
but such encroachments, will have to be tolerated in the larger interests of the society.
An endeavour shall be made to strike a balance between the interests of the individual
and those of the society by providing certain safeguards in favour of
the individual. In State v. Bhawani Singh, it has been observed," An Indian citizen's
house, it must always be remembered, it his castle, because next to his personal
freedom, comes the freedom of his house. Just as a citizen cannot be deprived of his
personal liberty except under authority of law, similarly, no officer of the State has a
prerogative right to forcibly enter a citizen's house except under the authority of law.

In India the administration of criminal justice is generally governed by the Code of

Criminal Procedure, 1973, but where a special statute provides a different procedure
for investigation, enquiry or trial of offences enumerated therein, in that situation the
provisions of the Code of Criminal Procedure shall not apply. In other words, the Code
of Criminal Procedure 1973 is a parent statute so its provision of search and seizure
are being discussed below.

PROCESS TO COMPEL THE PRODUCTION OF THINGS

A police officer or a court may, under certain circumstances, issue a
written, order or a summons for the production of any documents or other things if it
is relevant for the. purposes of any investigation, enquiry, trial or other proceedings
under the Code of Criminal Procedure. This provision is contained in Section 91 of the
Code of Criminal Procedure, 1973 which runs as under
(1) Whenever any Court or any officer in charge of a police station considers that the
production of any document or other thing is necessary or desirable for the
purposes of any investigation, inquiry, trial or other proceeding under this Code by
or before such Court or officer, such Court may issue a summons, or such officer
a written order to .the person in whose possession or power, such document or
thing is believed to be, requiring him to attend and produce it, or to produce it, at
the time and place stated in the summons or. order.
(2) Any person required under this section merely to produce a document or other
thing shall be deemed to have complied with the requisition if he causes such
document or thing to be produced instead of attending personally to produce
the same.
(3) Nothing in this section shall be deemed-
(a) to affect ss.123 and 124' of the Indian Evidence Act, 187 2 (l of 187 2), 'or the
Bankers' ' Books Evidence Act 1891 C13 of 1891); or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in
the custody of the postal or telegraph authority.
1. APPLICABILITY OF SECTION 91 TO THE ACCUSED
An order or summons can be issued under section 91 to any person. Now a question
may arise whether summons or an order under this section could be issued to an
accused person. The language of/the section is general and prim a-facie apt to
include an accused person but there are indications that the Legislature did not
intend, to include an accused person.
In England, no person can be compelled to produce evidence against him, and,
consequently, no order can be made on him to produce documents or other things.
In India, because of the g e n e r a l words used in section 91 the courts were of the
opinion that a magistrate can issue summons against an accused requiring him to
produce the documents or things in his possession or D o w e r . A different view was
also taken in some cases and it was held that the provisions of the section does not
apply in ca.se of an accused person. Since the commencement of the. Constitution,
however, the position has considerably changed. Article 20(3) of the Constitution
provides that no person accused of any offence shall be compelled to be a witness
against himself. The matter came up for consideration before the Supreme Court in
M.P. Sharma v. Satlsh Chandra, though indirectly. The question involved in that case
related to the power of the Court to direct search of the house of the accused per son
under Section 96 (i) of the repealed Code (correspondent to section 93 (1) of present
Code. In considering that question the Court assumed that, this section i.e. section 91
(section 94 of the old Code) is applicable to the accused and that there is an el orient
of compulsion implicit in the process contemplated by .this section because, in any
case, non-compliance results in the unpleasant consequence of invasion of one's
premises and rummaging of one's private paper by the minions of law under a.
search-warrant, and that it was not possible to read this section, and section 93(1) as
importing any statutory recognition of a theory that search and seizure of documents
is compelled production thereof. A power of search and seizure is in any system of
jurisprudence an overriding necessity regulated by law. It was, therefore, held that the
constitutional protection under Article 20(3) would not be defeated by the statutory
provisions for searches.
 In coming to the decision as aforesaid, the Court also considered the
provision fora notice to an accused to produce a document under this section and
there is clear indication of the view that it would amount to compelled testimony/
which is prohibited under Article 20(3) of the Constitution.
In this view, therefore, a notice to the accused under this section to
produce. a document, even if the section is applicable to the case of an accused
person, would be hit by the provisions of Article 20(3) of the Constitution and illegal.
The Calcutta High Court in a later case, also took the view after the decision that the
reasoning of the earlier decisions of that court would no longer be valid since the
Supreme Court has decided that the production of a document preliminary to a trial
(not to speak of compelling an accused to produce a document at the trial) is in the
nature of testimonial compulsion which offends against the provisions of Article 20(3)
of the Constitution.
The Orissa High Court, however, took the view that the Supreme Court decision
applied only to private documents, and not to 'public documents' in the possession of
the accused, as they are outside the immunity conferred by Article 20(3) of the
Constitution.
Article 20(3) of the Constitution again came up for consideration before the Supreme
Court in State of Bombay v. Kathi Kali Oghad. It was pointed out that ‘to be a
witness' is not equivalent to 'furnishing evidence’ in its widest significance so as to
include also production of documents or giving of materials which-may be relevant at
a trial to determine the guilt or innocence of the accused, that the observations in
M.P. Sharma v. Satish Chandra that section 139 of the Evidence .Act has no bearing
on the connotation of the word 'witness' is not entirely well founded in law, and that
to be a witness' means imparting knowledge in respect of relevant facts by an oral
statement or a statement in writing made or given in Court or otherwise.
"To be a witness' bears a wider meaning than its ordinary grammatical sense, and
means bearing testimony in court or out of court by a person accused of an offence,
or ally or. in writing. It is thus not enough that he should become accused any time
after the statement has been made. For invoking the constitutional right against
testimonial compulsion guaranteed under this clause, it must appear that a formal
accusation has been made against the party pleading the guarantee, and that it
relates to the commission of an offence which in the normal course may result in
prosecution. The nature of the accusation and its probable sequel or consequence
are regarded as important.
To understand the full significance of the decision in Kathi Kalu Oghad's case, it will
be necessary to refer to the judgment in some further detail. It was observed:
The accused may have documentary evidence in his possession which may throw
some light on the controversy. If it is a document which is not his statement
conveying his personal knowledge relating to the charge against him, he may be
called upon by the Court to produce that document in accordance with the provisions
of Section 139 of the Evidence Act, which ,in terms provides that a person may be
summoned to produce a document in his possession or power and that he does not
become a witness by the mere fact that he has produced it, and, therefore, he
cannot be cross-examined.,.. In our opinion, therefore, the observations of this Court
in Sharma’s case that section 139 of the Evidence Act has no bearing on the
connotation of the word ‘witness' is not entirely well founded in law. It is well
established that clause (3) of Article 20 is directed against self-incrimination by an
accused per son, self-incrimination must mean conveying information based upon
the personal knowledge of the person giving the information and cannot include
merely the mechanical process of producing documents in Court which may throw a
light on' any of the points in controversy, but which do not contain any statement of
the accused based on his personal knowledge. For example, the accused person
may be in possession of a document which is in his writing or which contains his
signature or his thumb impression. The production of such a document, with a view
to comparison of the writing or the signature or the impression, is not the statement
of an accused person, which can be said to be of the nature of a 'personal testimony'
The position is, therefore, this:
Whether or not the order requiring the production of a document by an accused
person is hit by the prohibition contained in Article 20(3) of the Constitution would
1
depend upon the nature of that document. If the document is such as is not his
statement conveying his personal knowledge relating to the charge against him', he
may be called upon by the Court to produce that document. But if the order relates to
a document which contains any statement of the accused based on his personal
knowledge, the order for its production will attract the constitutional bar against
testimonial compulsion.
Article 20(3) of the Constitution will come into play only when two facts are
established:
(i) the individual concerned was a person accused of an offence, and
(ii) he was compelled to be a witness, against himself.
If only one of these facts and not the other is established the requirements
of Art. 20(3) will not be fulfilled. But to produce a document in a criminal case in
support of prosecution is a testimonial act under Art. 20(3). It would, prohibit a
summons to be issued under this section against, an accused person requiring him
to produce documents in support of a prosecution case.
Whether requiring an accused to produce a thing in his possession will
amount to testimonial compulsion, for this we turn to another case State v. Prabhu
Singh in which the Chairman and Manager of a transport company who were being
prosecuted under section 14 of the Employees1 Provident Funds Act, 1952, were
required to produce registers etc. of the Company in support of the prosecution case,
for which there was no other evidence on record, it was held that the registers would
obviously contain certain information based upon personal knowledge of the
respondents, which was to be used as incriminating evidence against them, and, that,
therefore, the order requiring them to produce the same would be violative of Art. 20
(3).
The decision of the Supreme Court in State of Gujarat v Shyamlal Mohanlal sets this
controversy at rest. The Supreme Court has held that the word 'person' in this section
does not refer to or include an accused person and, consequently, no process can be
issued or direction given to the accused for production of any document. Reliance
has been placed by the judge for this view on the use of the words ' to attend and
produce' in sub-section(1) of Section 91. It has been pointed out that the word ' to
attend' and then to 'produce' the documents would be inapt in their application to an
accused person who is already present in Court, or at the stage of investigation, was
under arrest and with the police.
In a recent decision in V.S. Kuttan Pillai v. Rama Krishanan the Supreme Court took
note of the conflict between the observations in M.P. Sharma’s case as reconsidered
in Kathi Kalu Oghad' s case, and the one in the case of Shyamlal. However, as that
case was not directly related to a summons issued under Section 9l(1),it was not
considered necessary to refer the matter to a larger bench to resolve the conflict.
2, TAKING OF THUMBMARKB.SIGNATURES OR HANDWRITING OF AN ACCUSED
PERSON
Conflicting views were taken by the different High Courts as to whether, in view of the
provisions of Article 20 (3) of the Constitution, an accused can be asked to give his
hand, foot or thumb mark or specimen of his writing or signatures and the like. While
in some cases, it has been held that a direction requiring an accused person to
furnish such material to the prosecution offended against Article 20(3) of the
Constitution, a different view was taken in other cases and it has been held that it did
not. In a third set of cases it has been held that mere asking for such material did not
offend against the aforesaid constitutional provision, but it would if the accused is
compelled to give his thumb-impression or specimen writing, etc.
The controversy has, however, been set at rest by the Supreme Court decision in
State of Bombay v. Kathi Kalu, Oghad in which it has been held that requiring the
accused person to furnish thumb impressions or impressions of foot or palm or
fingers or specimen writings or showing parts of the body by way of identification are
not included in the expression "to be a witness” and would not be violative of Article
20 (3) of the Constitution. It has been observed:
To be a witness' may be equivalent to ' furnishing evidence 1 in the sense of making
oral or written statement but not in the larger sense of the expression so as to
include giving of thumb impression or impression of palm or foot or finger or
specimen writing or exposing a part of the body by an accused person for purpose of
identification. 'Furnishing evidence' in the latter sense could not have been within the
contemplation of the Constitution makers for the simple reason that though they may
have intended to protect an accused person from the hazards of self-incrimination, in
the light of the English Law on the subject they could not have intended to put
obstacles in the way of efficient and effective investigation into crime and of bringing
criminals to justice.
But it has been held that this section does not empower the magistrate to summon
an accused person to furnish his specimen signatures or thumb marks while the
case is still under investigation. The word 'thing' in the section 91 Cr.P.C. refers to a
physical object or material and not to any abstract thing.
3. 'DOCUMENT OR THINGS WHICH MAY BE DIRECTED TO BS PRODUCED.
 For definition of 'document' we shall see Section 3 of the Evidence Act,
1872, and Section 9(16) of the General Clauses Act, 1897. A "document or thing 1"
does not include "women”.
The language of section 91 Cr.P.C. is very wide. If it were to be taken quite
literally, it might appear that anything, whatever it may be whether tangible or
movable which is capable of being produced, might be ordered to be produced if the
court chose to consider its production necessary or desirable for the purposes of any
proceeding before it. A magistrate has the power of calling upon any person to
produce any 'document', or 'thing' in that per son's possession or power, which has
any connection with the offence happens to be under investigation or inquiry. Of
course, he cannot call for anything-and everything from anybody and everybody. The
thing called for must have some relation to, or connection with, the subject-matter of
the investigation or inquiry or throw some light on the proceeding, or supply some
link in the chain of evidence. It. may be that the thing called for may turn out to be
wholly irrelevant to the inquiry, but so long as it is considered to be necessary or
desirable for the purpose of the inquiry, the power is there. The words "'document or
thing” are general and seem to cover any document the production' and inspection of
which are necessary or desirable, or will serve the ends of justice.
An accused was charged with criminal breach of trust with reference to a sum of 8s.
1,77,131-1-2 which was paid to him in 17 currency-notes of ten thousand rupees each
and the remainder in small cash. He admitted the possession of 15 of them but said
that he had given 10 out of the 15 to third person his solicitor. The solicitor who
claimed a lien on the 10 notes. The prosecution insisted on the production of these
notes including the five notes and the proceeds of the other five currency notes in the
possession of the third person (solicitor), but the magistrate refused to make an order
to that effect on the ground that he had no power to compel their production. It was
held that the magistrate was wrong and that he had no power to compel the
production of the notes and of the proceeds.
In another case, an accused stole a blank cheque form, forged 'the complaint’s
signature, withdrew a sum of money and deposited a portion of it in saving bank
account with another bank. During the course of investigation, the magistrate passed
an order under this section calling upon the bank to produce in court the amount so
deposited by the accused and on the bank failing to do so issued a search warrant for
the amount of Rs.4,000. It was held that the order was illegal. Though the language of
Section 91 is very wide, the Court's discretion must be exercised judicially. In this
case neither the accused nor the complainant could possibly have any right to any
particular sum of money in the bank. The accused had only an actionable claim
against the bank for Rs.4,000. The money was not part of the proceeds of the alleged
offence, and had no connection with the subject-matter at all. Whether the accuse was
convicted or acquitted it had to be returned to the owner, i.e., the bank.
In Re . Lloyds Bank Ltd t h e decision in t h e m a t t e r of the complaint of H. H.
The Nizam was distinguished on the ground that in the latter case the property was
held necessary for evidentiary purposes. The circumstances of the case were such
that the Court could hold and did hold that all the currency, notes v/ere connected,
with the subject- matter of the charge and were part of the proceeds of the offence.
4. THE MANNER OF EXERCISE OF JUDICIAL DISCRETION
The discretion conferred on the Court under sub-section (1) of section 91 of
the Cr.P.C. is an absolute discretion, the only condition for the same being that in the
opinion of the Court (and the police officer, where the power if exercised by him) the
production of document or thing is necessary or desirable for the purpose of the
enquiry, trial or other proceedings, as the case may be.
Some restrictions are placed on the exercise of this discretion by sub-section (3)
which provides that nothing in the section shall be deemed to affect sections 123 and
124 of the Evidence Act or to apply to a letter, post-card, telegram or other document
or any parcel or thing in the custody of the postal or telegraph authorities.
The power of the Court under sub-section (1) is, however, not limited by
section 126 of the Evidence Act. But the discretion under this section is a judicial
discretion, and it should not, ordinarily be exercised in such a way as to conflict with
the privilege against disclosure conferred by Section 126 of the Evidence Act.
Whether a document should be summoned or not is essentially in the
discretion of the trial court. Except for very good reasons, the High Court should not
interfere with the discretion conferred on the trial courts in the matter of summoning
documents.
The question whether the production of a particular document or book is
necessary or 'desirable for the purpose of any trial is one which must be decided by
the magistrate before he orders the production and in determining that question he
has to exercise his discretion judicially, in the sense that he must satisfy himself, that
the document or the book has a bearing upon and is not irrelevant to the case. When
he has so satisfied himself, his jurisdiction to order its production comes into play
and that carries with it the jurisdiction to allow the prosecution the right of inspection.
Section 91 would, apply to all cases, including summons-cases, and it gives the
magistrates discretion about the production of documents. Inhere such discretion has
been judicially exercised; the High Court will not interfere in revision.
Where an advocate of an accused asked the complainant in cross-
examination, in a defamation case, a question after looking into his brief and the
advocate of the complainant without even waiting for an answer to the question from
the complainant, got up and made an application for taking possession of the letter
referred to in the question from the brief of the advocate of the accused and the court
thereupon passed an order requiring the advocate of the accused to produce the
letter. It was held that it was not for the magistrate in the exercise of his power under
sub-section (1) of section 94 (of the old Code) to require the advocate of the accused
to produce the letter- on the entirely erroneous assumption unfounded on any
material that such letter was in the possession of the advocate of the accused-for the
purpose of contradicting the complainant and that too before the complainant had
answered the question put to him by the advocate of the accused. The order made
bv the magistrate was, therefor e, obviously illegal.
A person who fails to comply with the summons without any reasonable
excuse will impose himself to the penal consequences contemplated by Section 349
of the Code of Criminal Procedure. Intentional omission to produce a document as
required by this section shall also be punishable under section 175 of the Indian
Penal Code. It is necessary that before a person is punished for failure to comply
with the means or orders issued in this section, it will have to be proved that the
conditions for issuing a summons or orders have been fulfilled and the summons and
orders have been fully served on such a person.
PROCEDURE WITH REGARD TO LETTERS AND TELEGRAMS
If any document or thing is in custody of the postal or telegraph authorities
which are exempt from operation of section 91 of the Code of Criminal Procedure,
these matters are governed by section 92 of the Code of Criminal Procedure which
runs as under:
(1) If any document, parcel or thing in the custody of a postal or telegraph authority
is, in the opinion of the District Magistrate, Chief Judicial Magistrate, Court of
Session or High Court wanted for the purpose of any investigation, inquiry, trial or
 other proceeding under this Code, such Magistrate or Court may require the
postal or telegraph authority, as the case may be to deliver the document, parcel
or thing to such person as the magistrate or Court directs,
(2) If any such document, parcel or thing is, in the opinion of any other magistrate,
whether Executive or Judicial or of any Commissioner of Police, or District
Superintendent of Police wanted for any such purpose he may require the postal
or telegraph authority, as the case may be to cause search to be made for and to
detain such document, parcel or thing pending the order of a District Magistrate,
Chief Judicial Magistrate or Court under sub-section (1) .
The authorities mentioned in Section 92, Cr. P.C, cannot be directed to produce the
document or thing in court or before the investigating officer. They can only be
directed to -deliver the same to a person nominated by the magistrate or court, or to
detain them pending orders.
Sections 91 and 92 must be read together as they form one group. It is therefore,
obvious that no order under s.92(1) can be passed in respect of a parcel, document
or thing not in the custody of the postal, or telegraph authorities at the time of
passing of the order but which are expected to be received in future. It is also
significant that before the District Magistrate passes, an order under s.92(1) he has
to be satisfied whether the production of the document or thing is necessary or
desirable for the purposes of inquiry, investigation or any other proceeding. Prima-
facie, there can be no such, consideration by the District Magistrate in respect of a
document which is not in existence at the time of passing of the order and which may
come into existence subsequently and may be received by the postal or telegraph
authorities. However, as regards s.92(2), in the very nature of things it is not possible
to specify the documents, parcels or things that should be detained by the Postal
and Telegraph Department, because unless the investigating Officer makes some
prima-facie examination it is not possible for him to determine whether any particular
document, parcel etc. would be wanted for the purposes of investigation and with
regard to which orders may be obtained under s.92(1).
Therefore, it has been held that an omnibus order by the District Superintendent of
Police under s.9 2(2) directing the Postal and Telegraph Department to obtain the
entire mail addressed to a person was not illegal.

D. SEARCH WITH A WARRANT

Search warrant is a written authority given to a police officer or other person named
in it, issued by a competent magistrate or court directing the search of any place
either generally or for specified things or documents or for persons wrongfully
detained. A search is a coercive method in which the sanctity and privacy of a
citizen's home or premises is invaded. A search and seizure is only a temporary
interference with a right to hold, the premises searched and the articles seized. As
we have already discussed that the search and seizure of documents from the
accused does not amount to infringement of fundamental rights under Article 20(3) of
the Constitution. It is, therefore, necessary that the power to issue search warrant
should be exercised with all care and circumspection.
According to the provisions of the Code of Criminal Procedure1973 search warrants
may be issued under sections 93,94,95,97 and 98. An analysis of these sections is
attempted below.
1. SEARCH WARRANT UNDER SECTION 93 OF THE CODE OF CRIMINAL
PROCEDURE
The power to issue search warrants have been incorporated in section 93 which runs
as under 93(1) (a) Where any Court has reason to believe that a person to whom a
summons or order under section 91 or a requisition under sub-section (1) of section
92 has been, or might be, addressed, will not or would not produce the document or
thing as required by such summons or requisition or
(b) where such document or thing is not known to the Court- to be in the possession
of any per son, or
(c) where the Court considers that the purposes of any inquiry, trial or other
proceeding under this Code will be served by a general search or inspection, it may
issue a search warrant; and the person to whom such warrant is directed, may search
or inspect in accordance therewith and the provisions hereinafter contained.
(2) The Court may, if it thinks fit, specify in the warrant the particular place or part
thereof to which only the search or inspection shall extend and the person
charged with the execution of such warrant shall then search or inspect only the
place or part so specified.
(3) Nothing contained in this section shall authorize any Magistrate other than a
District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a
document parcel or other thing in the custody of the postal or telegraph authority.
 Section 93 gives very wide powers to magistrates but, in exercising them,
they have to use their discretion judiciously. Search warrants are not to be issued in a
light manner. It is important that for issuance of search warrants whether of a general
nature or of a particular nature, the issue must be confined to the strict requirements
of law. It is also equally important that in the larger interest of the public and of the
administration of justice, public officers engaged in the discharge of their duty
connected with the investigation or inquiry relating to offences or suspected offences
should be afforded fair and reasonable opportunities for searches in the course of
such investigation or inquiry, if applied for on reasonable grounds and if calculated to
further such investigation or "inquiry. Accordingly, these two conflicting
interests are to be balanced by the magistrate while exercising powers under section
93 of the Code, The section provides for two kinds of searches one particular and the
other general, A general search means a search not in respect of specific documents
or things which the officer considers as necessary and desirable for the purpose of
investigation in hand, but a roving inquiry for the purpose of discovering documents
or things which might involve Persons for criminal liability. Clauses (a) and (b) of
subsection (1) provide for a particular search, clause (c) for ''general search”.
(b) Conditions under which search can be made
Section 93 contemplates three alternative conditions under which a search warrant
can be issued, namely, -
(1) Where the Court has reason to believe that a person, to whom a summons or
order under Section 91 or a requisition under Section 92(1) has been or might be
addressed, will not or would not produce the document or thing as required by
such summons or requisition or
(2) Where such document or thing is not known to the Court to be in the possession
of any person; or
(3) Where the Court considers that the purpose of any inquiry, trial or other
proceeding under this Code will be served by a general search or inspection.
The first two alternatives relate back to Sections 91 and 92, the document or thing
referred to being the document or thing which is wanted or the production of which is
necessary for the purposes of any investigation, inquiry, trial or other proceeding
under the Code. The third alternative makes no mention of any investigation and is
confined only to inquiries, trials. The term 'enquiry ' relates to a proceeding held by a
court or magistrate other than a trial .conducted under the Code of Criminal
Procedure while an investigation relates to the step taken by a police officer or by any
person ( other than a magistrate) authorised in this behalf for the collection of
evidence.
Clause (c) of section 93(1) had nothing whatsoever to do with an investigation. It does
not provide for any step to be taken in aid of an investigation but it provides for
something which the magistrate may do for the purpose of serving an inquiry, trial or
other proceeding under the Code, The word “investigation" is omitted in this clause.
In Section 91, Cr.P.C., which provides for the issue of a summons to produce a
document, the words used axe "investigation, inquiry, trial or other proceeding”. It is
clear, therefore, from this omission of the word '"investigation" that the legislature did
not provide for action under clause (c) for the purpose of an investigation. A
magistrate who utilizes this clause with a view to help in the investigation of an
offence does something which the Code does not sanction. He cannot act under this
clause unless after consideration he is satisfied that the purpose of an inquiry or trial
of other proceeding will be served by a general search.
(c) Who may issue search warrant?
For the sake of brevity, the old Code used the terms "Court' and 'Magistrate'
generally if not always as convertible terms. It is. not that a magistrate is not
competent to issue a search-warrant unless he is sitting as a court, that is, acting
judicially in some inquiry or proceeding initiated before him. High Court and Sessions
Judge can issue search warrant. A Special Judge can issue search warrant under
section 93 (1) (c), Sub Divisional executive magistrate cannot issue a search warrant
if one has been rejected by the sub divisional judicial magistrate because they
exercise co-ordinate power.
(d) Search warrant, may be issued before any proceedings are initiated.
For a magistrate to issue a search warrant, it is not necessary that he should be
sitting as a court i.e., some proceeding under the Code should have been initiated
before him. The form of the warrant (Form No. 10 in Sch. II) contemplates the issue
of a search-warrant before proceedings of any kind are initiated.
There need not be a proceeding actually pending before the magistrate at
the time he issues the warrant. A warrant may be issued for the purpose of an
inquiry about to be made. The phrase “for purpose of" in clause (c) of sub-section (1)
which is a very comprehensive term, is not to be construed as meaning. "during the
pendency of”. All that is necessary is that the court issuing the search warrant
should consider on reasonable grounds that the purpose of any inquiry, trial or other
proceeding under the Code will be served by a general search. The phrase “for the
purpose of” is to be construed as not in itself implying either the pendency of the
specified proceedings or the immediate or imminent initiation thereof. What is
necessary in such cases is that the magistrate should reasonable be satisfied that
the search is likely to be a link in the chain which in the normal course will lead to an
inquiry under the Code if the expected material is found on the search, and that he
should also be satisfied that there is reasonable ground for the expectation.
(e) When Search Warrant shall not issue
Search warrant cannot be issued for recovery of wife from the custody of
her father on the allegations that she has been confined there wrongfully. A court
shall not issue search warrant to enforce a hire-purchase agreement to recover a
bus from the possession of a hirer. It shall neither be issued to serve the purpose of
attachment before judgment of a property in the possession of a third party. The
court shall not issue search warrant against a banker for confidential government
papers in view of section 91 (3) (a) of the Code. A general search for stolen property
is not authorised as the law requires mention of specific things in the search warrant.
A g e n e r a l search for fishing evidence is not authorised. But during the search if
any other incriminating document or thing is found in possession of the accused, it is
admissible in evidence notwithstanding the fact that the search was illegal.

(f) Search warrant against the accused.

Since section 91 does not apply to an accused and summons cannot be issued to
him for producing a document or thing so a search warrant cannot be issued, under
section 93 (1) (a) for the production of documents or thing in the possession of an
accused as held in State v. Shyamlal but search of the premises of an accused
person under clause (b) and (c) of section 93 (1) is permissible. A notice to produce
is address to the party concerned and his production in compliance therewith
constitutes a testimonial act by him within the meaning of Art. 20 (3) of the
Constitution. But a search warrant is addressed to an officer of the government,
generally a police officer. Neither the search nor the seizure are acts of the occupier
of the searched premises. They are acts of another to which he is obliged to submit
and are, therefore, not his testimonial acts. So, Article 20(3) of the Constitution does
not prohibit the police from searching either the person of the accused or the
premises in the manner laid down by the Code. The magistrate is empowered to
issue a search warrant against the accused.in this respect.
In the United States of America, the position is the same as held in Anderson v.
Maryland.
A party is privileged from producing the evidence but not from its production. Thus,
although the Fifth Amendment may protect an individual from complying with a
subpoena for the production of his personal records in his possession, because the
very act of production may constitute a compulsory authentication of incriminating
information, a seizure of the same materials by law enforcement officers differs in a
crucial respect, the individual against whom the search is directed is not required to
aid in the discovery, production or authentication of incriminating evidence.
(g) When warrant for general search may be issued under Section 93 (1) (c)
A warranty for a general search or inspection may be issued under clause
(c) of sub-section (1) if the Court is satisfied that the. purposes of any inquiry, trial
or
other proceeding under the Code will be thereby served.
A warrant for search cannot be issued under clause (c) if what is required
are specific documents or articles including books of accounts etc., alleged to be in
the custody of the accused. If they are known to be in the possession of the accused
and their location and place of storage is also known, the warrant cannot, be a
general warrant for search and inspection and cannot be issued under clause (c). It
will be covered by clause (a) of sub-section (1).
A warrant cannot be issued for the purpose of an inquiry other than an
inquiry under the Code.
A warrant cannot be issued for the seizure of records and their delivery to
the customs authorities for inquiry by them into a non-cognizable offence.
An investigation by the police is not an enquiry or trial. Under section 2(h),
an investigation under the Code, during which a police officer or any other person
authorised by a magistrate collects evidence, is a proceeding under the Code. An
investigation by the police is, therefore, a proceeding under the Code and a search
warrant may, therefore, be issued in aid of. such an investigation. The word
'investigation’ occurring in section 91 (1) has not been used in this section. But the
comprehensive expression or other proceeding under the Code will include
"investigation by the police”, and a search-warrant may, therefore, be issued in
connection with the same. This view seems to be incorrect with due respect as it
does not take into account the fact of non-inclusion of the word investigation in
section 93'(1) (c). The reason being that police has got independent powers to
search without a warrant under section 165 Cr.P.C., during the course of
investigation of an offence. Therefore, the procurement of search warrant shall not
be necessary in the course of investigation of an offence by the Police for which the
police is authorised to investigate.

(h) Exercise of discretion by the magistrate

Section 93(1) confers a discretion on the magistrate to issue a search-warrant. He is
not compelled to take action. He may issue a search-warrant. The discretion is,
however, not unfettered. It must be governed by rule, not by humour, it must not be
arbitrary, vague and fanciful, but legal and regular. He may direct on investigation by
the police before issuing the process of search-warrant under this section.
The courts will not assist the doing of what is prohibited, by law. No warrant involving
the disclosure prohibited by section 54 (1) of the Income Tax Act, 1922, (now section
138 of the 1961 Act) can properly be issued.
The issue of a search-warrant is a judicial function of the magistrate. The words
"reason to believe” coupled with other words in the section contemplate an objective
determination based on intelligent care and deliberation involving judicial review as
distinguished from a purely subjective consideration. This function being judicial, the
magistrate has to apply his mind judicially. A notice to the opposite party against
whom search warrant is to be issued is not contemplated under this section.
Therefore, a search warrant will not be invalid merely because it was issued ex-parte
without any notice to the party concerned.
(i) Meaning of "reasons to believe”
It is a condition precedent to the issue of a search warrant under clause (a)
of sub-section (1) that the court must have reasons to believe that the person against
whom the search-warrant is issued is not likely to produce the document or the thing
in his possession as required by a summons or order under section 91 or a
requisition under section 92 (1), served upon him. It is the duty of the court in the first
instance to consider if a summons to produce would not have the desired effect.
Clause (c) of section 93 (1) does not require the previous issue of a summons under
section 91. But even under that clause a search-warrant is not to be issued
automatically or for the mere asking. It can only be issued when the court considers
that the purposes of an enquiry would be served. The provision that it is only a court
that can issue the warrant and that the court will issue it only after consideration is
sufficient indication of what is required of a magistrate when he deals with such
application. The magistrate should ascertain from the officer seeking search warrant
the nature of the information, whether it is credible, reliable and contains an
allegation of an offence and is sufficient for issuance of a search warrant applied for.
The magistrate must apply his judicial mind to the question and must satisfy himself
that the issue of the warrant is necessary and that the requirements of the law for the
issue of the warrant are present. He must see whether there are sufficient materials
before him to justify the drastic action which he is being invited to take. When it
appears that a magistrate has not applied his mind in this way and when it appears
that action has been taken on insufficient material, the search-warrant is illegal and
the High Court will interfere.
(j) Recording reasons for issuing search warrant

It is not obligatory for the magistrate to record reasons. But it is desirable that he
should state briefly the reasons in justification for the issue of the warrant, so that
superior courts may be in a position to judge whether the discretion has been
properly exercised.
The issue of a search-warrant is not a mere formality, but a drastic act for those
whose premises are searched. The practice of signing a note in the case diary in
support of the warrant instead of passing an order on the application is deprecated.
The magistrate must himself be satisfied that there is necessity for the search warrant
to be issued. If there are materials on record on which search-warrant could have
been issued, the warrant is not bad. But it would be desirable for the magistrate to
pass a formal order setting out briefly the reasons for considering that the issue of a
search-warrant is called for.
In the case-of- a-search-warrant under section 26 of the Arms Act, 1878, it has been
held that failure to record reasons for the belief of the magistrate is a. grave defect.

(k) Search under other Acts

The provisions relating to searches under this Code shall, so far as they can be made
applicable, apply
(1) to a search under section 8 cl. (1) of Act XI of 1890 (Prevention of Cruelty to
Animals).
(2) to a search under Bombay Act II of 1890 (Salt) CI. 2.
(3) to searches by officers authorised by rules under Section 7 of the Indian
Explosives Act, IV of 1884
(4) to a. search under the Central Excise and Salt Act I of 1944.
(5) to search, under the Arms Act 1959 (Act No.54 of 1959) which in Bengal must be
conducted in the presence of some officer specially appointed by name or in virtue of
his office, by the Provincial Government, and all magistrates and police officers not
below the rank of Inspector have been so appointed. Searches made under the
provisions of the Opium Act I of 1878 must be made in accordance with the Code.
Under Section 25 of the Indian Arms Act, a magistrate must before causing search to
be made record in writing the ground of his belief that a person has possession of
arms etc. for an unlawful purpose, and when he conducts a search without so
recording, the search is illegal and the magistrate is guilty of a trespass if he enters
into any building. Under section 93 Cr.P.C, a magistrate has power to issue a search-
warrant for the production of copies of an infringing book, proof, etc., for the purpose
of making an order under Section 10 of the Indian Copyright Act,III of 1914 (now the
Copyright Act, 1957).
In Emperor v. Aslam, application of these provisions was explained for the
searches under the Bombay Gambling Act, 1897; Section 10 of the Prevention of Food
Adulteration Act,37 of 1954, empowers Food Inspectors to search and seize in
accordance with provisions of this Code.
(l) Power of seizure
The power of search carries with it the power to seize the documents or
things, notwithstanding the fact that this provision has not been specified in the
section itself. The power of seizure is implied. Section 93(1) (c) comprehends not only
inspection of the place but also seizure of documents or things which the court
considers necessary or desirable. An illegal search even does not vitiate the
seizure.
(m) Search by a magistrate
The Magistrate who is competent to issue a search warrant may himself conduct
the search. He can also remain present at the time of search and supervise the
search.
(n) Resistance to illegal search
Where a police officer deputed to make an investigation, but not
empowered to enter a house in search of property, does make a search without a
warrant, the illegality of such search cannot justify any resistance or obstruction
under section 99, I.P.C., unless it is shown that the officer has acted otherwise than in
good faith and without malice.
Where on the complaint of the husband that his wife was wrongfully confined by his
father-in-law, a warrant was issued under this section and the police officer attempting
to execute the warrant was obstructed and criminal force used by the accused., it was
held that the accused were not guilty as the warrant was illegal.
(o) Disposal of things seized.
If a. document had been seized by the police for investigation and the court
considers it unnecessary for investigation it may be returned to the person from
whom it was seized. Ordinarily the seized property should be returned to the person
from whom it was seized. But the property shall not be returned to the thief although it
was recovered from his possession. An article or a document involved in a criminal
case should be returned to the person entitled to possession if his possession is
found to be bona-fide and without any knowledge of criminality or criminal intention.
The disposal of property seized under the various provisions of the Code is
governed by sections 451,452, and 457 of the Code of Criminal Procedure, 1973.
(p) Search with a warrant in England and United states of America

In England except in the case of stolen goods there is no power at common law to
issue warrant authorizing the search of house, but provision is made by statute for the
issue of search warrant in certain specified cases, for example section 51 of the
Betting, Gaming and Lottery Act, section 4 of the Biological Weapons Act, 1974,
section 11 (3) of the Coinage Offences Act, 1936, section 296(3) of the
Customs and Excise Act, 1962, section 46 of the Fire-Arms Act, 1968, section 23(3) of
Misuse of Drugs Act, 1971, section 3 of Obscene Publication. Act, 1959 and section
36(1) and (3) of Theft Act, 1968 etc. The practice of issuing warrant for general
search has been condemned except in the case of search for stolen goods under the
larceny Act, 1916.
In the U.S.A. also there is no provisions for general search warrant. In accordance
with the basic right guaranteed by the Fourth Amendment of the Constitution of the
United States, the courts have the power to determine in each case whether search
and seizure have been unreasonable or unconstitutional violating the provisions of
the Fourth Amendment i.e. (1) no probable cause exists for the search warrant (2) the
search is itself unreasonable and (3) the officer issuing the warrant is impartial and
detached from the police or the prosecution .lt is because a search is a drastic act,
therefore, necessary precautions are taken that the power vested is not abused.
(q) Use of evidence obtained through illegal search in India, England and USA.
In England as well as in India the seizure of evidence by illegal means is not viewed
as affecting the quality of the materials obtained. As a consequence of this thinking
that evidence is evidence, however, it is obtained, the Courts did not refuse to admit
materials into evidence merely because they were obtained through an unlawful
search. A judge, however, has a discretion to exclude evidence, even though
technically it may be admissible, as part of his. duty to secure a fair trial of the
accused.
In R v. Sang the House of Lords reviewed this discretion and. held that a trial judge
in a criminal trial has always a discretion to refuse to admit evidence if in his opinion
its prejudicial effect outweighs its probative value. According to Jeffrey v Black the
discretion could only be exercised when the police in obtaining the evidence had not
been merely been guilty of technical infringements of the law, but has used trickery,
or had mislead someone, or had behaved in a. manner which was unfair, oppressive
or otherwise morally reprehensible.
In State of Maharashtra v. Natwarlal, the Supreme Court has reiterated that even if
the search is illegal the seizure of the articles is not vitiated where the provisions of
Cr.P.C. regarding search ere contravened the search could be resisted by.the
person whose premises are sought to be searched. It may also be that because of
the illegality of search the court may be inclined to examine carefully the evidence
regarding seizure. But beyond these two consequences no further consequence
ensues, whether such contravention would vitiate the trial or its effect would depend
upon the question of prejudice caused to the accused person.
 In United States of America all evidence obtained by law enforcement officers by
searches and seizures in violation of Fourth Amendment is inadmissible in evidence
in federal as well as state courts as held in Mapp v Ohio. This rule is known as
'exclusionary rule' and acts as a deterrent to the illegal conduct of the law
enforcement personnel.
2. SEARCH OF PLACE SUSPECTED TO CONTAIN STOLEN PROPERTY FORGED
DOCUMENTS ETC.
Section 94 of the Code of Criminal Procedure,1973 contemplates issuance of a search
warrant to search a place suspected to contain stolen property, forged documents or
objectionable articles. It runs as under:
S.94 (1) If a District Magistrate, Sub Divisional Magistrate or Magistrate of the first
class, upon information and after such inquiry as he thinks necessary, ,has reason to
believe that any place is used for the deposit or sale of stolen property, or for the
deposit, sale or production of any objectionable article to which this section applies,
or that any such objectionable article is deposited in any place, he may by warrant
authorise any police Officer above the rank of a constable—
(a) to enter, with such assistance as may be required, such place,
(b) to search the same in the manner specified in the warrant,
(c) to take possession of any property or article therein found which he reasonably
suspects to be stolen property or objectionable article to which this section
applies,
(d) to convey such property or article before a magistrate, or to guard the same on the
spot until the offender is taken before a magistrate, or otherwise to dispose of it in
some place of safety,
(e) to take into custody and carry before a magistrate every person found in such
place who appears to have been privy to the deposit, sale or production of any
such property or article knowing or having reasonable cause to suspect it to be
stolen property or, as the case may be objectionable article to which this section
applies.
(2) The objectionable articles to which this section applies are
(a) counterfeit coins;
i. pieces of metal made in contravention of the Metal Tokens Act, 1889 (l of 1889)
or brought into India in contravention, of any notification for the time being in
force under s. 11 of the Customs Act, 1962 (52 of 1962);
 ii. counterfeit currency notes, counterfeit stamps;
iii. forged documents;
iv. false seals;
v. obscene objects referred to in s. 292 of the Indian Penal Code (45 of I860)?
vi. instruments or materials used for the production of any of the articles mentioned
in cls. (a) to (f)

The section makes it. clear that

i. the search warrant can be issued only by a District Magistrate, Sub Divisional
Magistrate, or a magistrate of the First Class
ii. the person authorised to search must be a police officer above the rank of a
constable and
iii. before a warrant is issued the concerned magistrate must have reason to believe
that the place is used for the deposit or sale of stolen property etc.
iv.
In a p p l y i n g section 94 the magistrate should have information. He must also
conduct the inquiry as he thinks necessary. On the basis of such inquiry he must
have reason to believe that any place is used for disposal of stolen property. He
must apply his mind before issuing the search warrant under this section.

(a) Reason to believe

The essential requirement of the section is that there must be some allegation or
information which the magistrate believe that a particular place is used for the
deposit or sale of stolen property or for manufacture of forced documents, false
seals, counterfeit stamps, etc. Before a magistrate acts under this section, he
must have information and may make some inquiry though the nature, scope and
character of such inquiry is not defined. The expression “reason to believe” in this
section is entirely different from the expression “cause to suspect”. The former
connotes a great deal more than is conveyed by the latter. There may be cause
to suspect about the user of a place for a particular purpose, but the officer who
issues the warrant has to bring his judicial mind to bear upon the question, and
he can issue a warrant only if in his opinion there is reason to believe that a place
is used for a specified purpose
(b) Pendency of the proceedings where necessary
When a search-warrant is issued under this section it is not necessary that any
proceeding should be pending
Still the thing seized must be produced before the magistrate. It is sufficient that a
search-warrant should be in view of an inquiry to be made. The non-existence of a
pending proceeding in court can therefore, be no reason for holding that the
production- of the thing seized before the court of the magistrate is not necessary.
(c) Difference between section 93 and 94.
There are essential differences between this section and section 93 which are
listed below -
(1) Section 93 authorises any court to issue a search warrant. It will
include all magistrates and all sessions judges. This section, on the other hand,
empowers only a district magistrate, sub divisional magistrate., or a magistrate of the
first class to issue a warrant for searching a place suspected to contain stolen
property etc.
(2) Section 93 empowers the court .to issue a warrant for
searching for any document or thing, while under this section a warrant can be issued
only for searching a place use
i. for the deposit or sale of stolen property;
ii. for the deposit or sale or production of any objectionable article;
(3) Section 93 authorises a court to issue a search -warrant on receipt of
information of the commission or suspected commission of a particular offence. This
section authorises the magistrate mentioned herein upon information to issue a.
warrant for searching a suspected place of deposit of stolen property or any
objectionable article.
(4) A power to seize and take possession is not expressly given under
section 93, whereas under this section such a power is expressly vested in the police
officer searching under a warrant issued under this section.
(5) The police officer is also entitled under this section to take into
custody any person found in such a place and suspected to have been privy to the
deposit, sale, etc. of such property. Section 93 does not confer any such power.
(6) Section 94 contemplates only a. surprise search for the recovery of
articles, while under section 93 search-warrant could be issued on failure of the party
to produce an article or thing on summons.
(7) A search-warrant under section 93 can be issued to any person by
virtue of sections 99 and 72 of the Code. But this section expressly restricts the right
to a police officer above the rank of a constable and hence section 72 will not apply.
 The question of legality of a search warrant issued under section 93
depends upon whether there is any investigation, inquiry, trial or other proceeding
under the Code as mentioned in section 91. Thus, issue of a search warrant where no
investigation, inquiry or trial or other proceeding as mentioned in section 91 was
pending, the magistrate was held not to have acted judicially at the time of issuing
search warrant.
(d) Obscene Objects
The question in deciding what is and what is not obscene is always a
difficult one. Obscenity is not defined in the Penal Cede. "The test of obscenity is
this, whether the tendency of the matter charged as obscenity is to deprave or
corrupt those whose minds are open to such immoral influences, and into whose
hands a Publication of this sort may fall". For the purpose of deciding whether a
picture is obscene or not one has to consider to a great extent the surrounding
circumstances, the pose, the posture, the suggestive element in the picture, the
person into whose hands it is likely to fall, etc. No hard and fast, rule can therefore
be laid down for the determination of the matter.
(e) Final disposal of things seized.
After the warrant is issued, it is an order of the magistrate enabling the
customs authorities to take action, for without warrant they cannot enter any house
or premises. A condition in the warrant that the goods or documents should be
produced before the magistrate must be complied with, and once they are produced
before him, it is for him to decide, in the circumstances of each case, whether he
would make than over to the customs authorities or not.
Now section 105 of the Customs Act, 1962, empowers the authorities under that Act
itself to search and seize in accordance to the provisions of that Act. The customs
authorities now need not go to the magistrate for search and seizure.
(3) search and seizures of certain PUBLICATIONS FORFEITED TO
GOVERNMENT
Section 95 of the Code of Criminal Procedure empowers the State Government that
it may, by notification, declare every copy of the newspaper or book or any
document containing any matter the publication of which is punishable under
sections 124-A, 153-A, 153-B, 29 2, 293 or section 295-A of the Indian Penal Code'
forfeited to the Government and upon such declaration any magistrate may authorise
search and seizure of such material by issuance of a search warrant to any police
officer not below the rank of a Sub Inspector.
Section 95 runs as under:
s. 95 (1) Where-
(a) any newspaper or book, or
(b) any document,
wherever printed, appears to the State Government to. contain any matter the
publication, of which is punishable under section 124-A or section 153-A or section
153-B or section 292 or section 293 or section 295-A of the Indian Penal Code (45 of
1860), the State Government may, by notification, 'stating the grounds of its opinion,
declare, . e v e r y copy of the issue of the newspaper containing such matter, and
every copy of such book or other do cument to be forfeited to Government, and
thereupon any Police Officer may seize the. same wherever found -in India and any
M a g i str ate may by warrant authorize any police Officer not below the rank of Sub-
Inspector to enter upon and search for the same in any premises where any copy of
such issue or any such book or other document may be or may be reasonably
suspected to be,
(2) In this section and in Sec, 96, --
(a) "newspaper” and "'book" have the same meaning as in the Press and
Registration of Books Act, 1867 (25 of 1867);
(b) ^document1" includes any painting, drawing or photograph, or other visible
representation.
(3) No order passed or action taken under this section shall be called in question in
any Court otherwise than in accordance with the provisions of Section 96,
(a) scope
Section 95 enables the State Government by notification in the Official Gazette, after
stating its grounds for its opinion, that any newspaper, book, or document contains
i. any seditious matter punishable under Section 124-A of the Penal Code
ii. or any matter promoting enmity between different classes or at places of
worship punishable under Section 153-3 of the Penal Code or
iii. any matter containing obscene books or obscene objects punishable under
section 29 2 or 293 of the Penal Code or
iv. any matter which amounts to maliciously insulting the religion or religious
beliefs of any class, punishable under Section 195-A of the Penal Code.
' to declare every copy thereof forfeited to the State Government. Thereupon any
police officer may seize such newspaper, book, or document, wherever found in
India. Any magistrate is also authorised to issue a search- warrant for its seizure.
Under section 96 (1) any person having an interest in such publication
may apply to the High Court within -two months of the date of the order of
proscription to set aside such order on the ground that it did not contain such matter
as is referred to in section 95.
Under section 96(2) every such application shall be heard and
determined by a Special Bench of the High Court composed of three judges and
where the High Court consists of less than three judges such Special Bench shall be
composed of all the judges of that High Court.
Under Section 96(4) (5) if the Special Bench of the High Court is not
satisfied that it contains such matter as is referred to in section 95 (1), the order of
forfeiture may.be set aside.
Sub-section (3) of this section contains a prohibition against any other
mode of calling in question the order of forfeiture made under sub-section (1) except
in the manner indicated under' Section 96(1). Inhere the order of forfeiture, was made
by the Government of West Bengal and the Government of A.P. republished the
notification, thereupon the compiler of the book applied under section 99-B. (old), to
the High Court of A.P. for setting aside the forfeiture, it was held, that the applicant
should move the Calcutta High Court for it has the jurisdiction It is the order of
forfeiture that furnishes the cause of action and not the re-publication.
(b) Grounds of opinion
. The grounds of opinion are a vital and essential part of the notification. It is those
grounds which reveal the jurisdiction for the issuance of the notification. A
notification, in order to be legal and effective, must comply with and fulfill this
requirement. The compliance is a sine qua non of the validity of the notification which
does not incorporate the grounds of the opinion.
The law in this respect has to be substantially complied with It is not enough merely
to reproduce the language of sections 124-A, 153-A or 295-A of the Penal Code
without specifying as to how and in what manner there has been contravention of the
provisions of these sections.
 To state the grounds of opinion without stating facts does not amount to a statement
by the Government of the grounds of its opinion. The opinion formed by the
Government
must be stated in an exact and concrete form in the order
itself so that it rnav be a proper and sufficient opinion
for the purposes of the section. The mere fact that the very
words which are used in this section are not used in the
order passed by the Government does not invalidate the
order. But in the case of Harnamdas v. State of u".P.,
the Supreme Court has held, that where the Government did not
state the grounds of its opinion,the High Court must set
aside the order. The Supreme Court observed*
The Code no where provides for an order of forfeiture being made by the High Court.
We are, therefore, of opinion that under section 99.-15 it is the duty of the High Court
to set aside an order of- forfeiture if it is not satisfied that the grounds on which the
Government formed its opinion that the books contained matters the .publication of
which would be punishable under any one or more of sections 124-A, 158-A or 295-
A of the Penal Code could justify that opinion. It is not its. duty to do more and to find
for itself whether the book contained any such matter whatsoever,
"What then is to happen when the Government did not state the grounds of its
opinion. In such a case if the High Court upheld the order, it may be that it would
have done so for reasons which the Government did not have in contemplation at all.
If . the High Court did that, it would really have made an order of forfeiture itself and
not upheld such an order made by the Government. This, as already stated, the High
Court has no power to do under Section 99 (1) . It seems clear to us, therefore, that
in such a easel, the. High Court must set aside the order under section 99-15, for itd
cannot then be satisfied that the grounds given by the Government justified the
order. You cannot be satisfied about a thing which you do not know,- This is the view
which was taken in Am.n P-aj^n Gho.se v. Stai^^lOle^t-^Jig^l, 39 and we are in
complete agreement with it. The present one is a case of this kind. We think that it
was the duty of the High Court under section 99-B to set aside the order of forfeiture
made in this case. In view of the above pronouncement, the law laid down ' by
Andhra Pradesh 40 and Allahabad High Court,4l is no longer good law,
4. SEARCH FOR PERSONS WRONGFUIiLY CONFINED
 When any person is confined under circumstances that the
confinement amounts to an offence a search-warrant may be
issued for search of such a person under section 97 of the
Code of Criminal Procedure which runs as under - -••'
■S.97*' If any 'District Magi str ate, Sub-Divi sio'nal Magistrate ,or Magistrate of the first
class has "reason to believe that any person is confined under such circumstances
that the confinement "amounts to an of fence,he may issue a search- warrant, and the
person to whom such warrant is directed may search for the person so .confined" and
such search shall be made in -accordance therewith, and' the person, if found, shall
be immediately taken before a Magistrate,who shall make such order as to in the
circumstances'of the case seems•proper.
Before a warrant is issued under section 97 the magistrate has to satisfy
himself that a person has been wrongfully detained. However, the section does
not cast any duty on the magistrate to hold a detailed inquiry or to record such
findings which are necessary after adjudication. Nor there is any right 'for the affected
party to be heard before the magistrate issues the search warrant. This section
contains emergency provisions but it.does not mean that a warrant shall be issued
automatically without application of a judicial mind to the allegations made in the
application moved, for the purposes and other material which may be placed before
the magistrates The expression "reasons to believe181 implies a belief in judicial mind
so that it after considering all- the available material 'with- a' sense of
resoonsibi 11tv,without ignoring, so far as Possible, the
43
other side of the controversy*
This section can be invoked by a father to rescue
his married daucrhter from the wrongfully confinement by her
44
in-laws. In case of a person wrongfully confined by a
.ghar.ao a. warrant can be issued under this section for his
45 rescue.
(b) 2he^Sc.poe crL^sd^naz^L^XU^s
The warrant under section 97 is in the nature of
Writ of Habeas QQEDILS for rescue of wrongfully confined
person bv intervention of police directed bv a magisterial
 4 6 - . . . . -
order. In India the Writ of Habeas Corp-,- s is probably
never used bv husband to regain his wife and the
alternative remedy under section 97 is always used. The jurisdiction under this
section is not as wide as that conferred by Article 226 of the Constitution. The
Punjab and Haryana High Court issued a roving Writ on June l6, 1.995 for search
and production of Mr s.Phulwati, a resident of Fatehgarh-Sahib district who has been
missing for the Past several months on a Writ petition filed by her close relative
under Article 226 of the Constitution. Judge ordered that a warrant officer should be
appointed to raid
any premises in any state pointed out by the petitioner to recover the detainee.
Warrant officer might also seek
the help of the Police authorities in this regard.
(c) Ball of. person..produced
There is no provision in the Code under which a
person produced before the court under this section rna^ be
called upon to give bail.
5. PO'ffm TO COMPEL RESTORATION OF
ABDUCTED F.H-'IALES
The power to compel restoration of abducted females
is contained in section 93 of the Code of Criminal Procedure
which runs as unders
S . 9 8 Upon complaint made on oath of ithe abductfedn or unlawful detention of a
woman, or a female child under the age of eighteen years, for any unlawful purpose, a
'District Magistrate, Sub Divisional Magistrate or Magistrate of the first class may
make an order for the immediate .restoration of such woman to her liberty,or of such
female child to her husband,p a.rent, guardi an or other person having the 1 awful
charge of such child and may compel compliance with such order, using such force
as may be necessary.
(a.) SCOPE
Section 98 is intended to give immediate relief to
a person who is in unlawful detention for an unlawful
purpose. It aims at summary disposal, of an application.
A protracted inouirv in such matters would defeat the verv
 object for which this section has been enacted. Before the 'magistrate exercises-the
-power under this section,he must
be satisfied that there is detention against thr- will
of those who are lawfully entitled to the custody of the
minor girl,and the purpose of the detention is also
unlawful. Both unlawful detention and purpose must be
proved, and if either is not established the magistrate h.
not the juri sdicti ^n to pass orders under the aforesaid 51
section. In proceedings under this section, the magi str at
has no jurisdiction to decide the civil rights of the
parties. The civil right of the applicant before the
magistrate assuming that he has such a right to give the
girl in marriage does not entitle him to an order under
this section, for oroceedincrs of civil nature cannot be
52
converted into those of criminal.
53
In Par an bath XanaE.an v. j^asudasau it was held that before the magistrate
directs the production of the girl he must be satisfied that the marriage has taken
place. The proceedings should be nuashed as the dispute could be decided more
satisfactorily by a civil court than by summary order of a magistrate.
Section 98 does not authorise a magistrate to
issue notice to Persons accused of unlawful detention to
produce the detained woman. There is necessarily no offence alleged in an
application under this section and
consequently "the provisions of sections 200 and 203
which relate to the procedure to be employed by a magistrate
taking cognisance of an offence do not apply to
55
proceedings under this section. The magistrate has no
power to order a preliminary inquiry by a subordinate
magi str ate, for the provisions of section 202 do not apply
to cases under this section. Section 202 deals with a as
"complaint of an offence" while there is no complaint of
 any "offence11 under this section with a view that the
magistrate should punish the offender. A preliminary
inouirv is also not permissible or desirable under this "5 6"
section. Before issuing search warrant,the magistrate
should first issue a show-cause notice why an order under
57
this section should not be passed. 'When a magistrate passed an order under this
section in general terms,that a woman be restored to liberty,without finding that she
was unlawfully detained by anyone or without ordering any person to restore her to
liberty,it was held that the order was not one contemplated by this section. In such
situation where a magistrate has reason to beliove that a woman is being unlawfully
detained,but cannot find who so detains her,the proper course for the magistrate is to
issue an order to have the woman brought before him and to examine her
Where a. complaint is made by the husband that his father-in-law is
wrongfully detaining his -wife,the
magistrate should hold an inouiry into the matter of
the complainant, examine witnesses as to the age of the
girl, or as to the reason why the father does not
think it fit to send his daughter/girl to her husband. The
High Court in revision set aside.the order made without any W.
such incuirv#especi ally as the complaint did not state that

the girl was being detained contrary to her own wish.

(c)
The word 'complaint' has been used in a basic sense
and is not to be equated with a complaint made under
Section 200 or as one defined under Section 2(a) where it
connotes certain allegations made before a magistrate that
some persons have committed an offence. Here the word
onlv means the ventilation of a grievance about a certain
59
matter specified in the section.
The expression 'complaint on oath' does not also
mean a complaint made in a statement on oath recorded
 in court, or a complaint supported by such a statement.
If an affidavit is filed in support of the complaint,the
So .
requirements" of the law are met.
(d)
The abducted woman in unlawful detention can only be restored to her
liberty. She cannot be arrested. The
ect of the section is to afford the relief of immediate
oration of the won an to her liberty, and the only order
the magistrate can pass is to set her at liberty
hwith. It is her absolute option and fundamental right
ranteed under the Constitution to go anywhere she wants.
restriction can be .imposed on her personal liberty in
ceeding under this section.
Unlawful Purpose.
The expression ""unlawful*1 has not been defined in
Criminal Procedure Code but it has the same meaning as
word '"illegal"' occurring in section 43 of the Indian
al Code. In order that a process may be issued under this
tion the woman or the girl must be shown to have been
ained for an unlawful purpose, and applying the section
y, as it does, to women and female children,it must not be
strued so as to make it include purposes which, although
unlawful in then selves, might only become so when
ertained towards a child in opposition to the wishes 62
s guardian.
A, detention for the purpose of persuading a girl to become a
Christian,contrary to the wishes of her guardian, would not be unlawful within the
terms of this section as a girl of 18 years has a right to choose her own residence.
The true principle by which, the court should be guided
is that it should judge from the circumstances of each
particular case, and that the welfare of the infant
irrespective of 'its age should be the main feature to be
~ 63 regarded.
 held that the words "illegal5' and "unlawful" have the
same meaning under the Penal Code. The word "illegal" is
applicable to everything which is an offence or which is
prohibited by lav.7 or which furnishes ground for a civil
action. Therefore, the detention by a. Hindu father of his
minor married daughter contrary to the wishes of her
husband with the object " to remarry her would clearly
constitute "unlawful detention for an unlawful purpose"1. The
main purpose of the section is to protect women and girls
from detention for immoral purpose, although no doubt, the
section would be appropriate to cases where the purpose of th«
detention was clearly unlawful although not necessarily
65 ."
immoral.
'Stfhere the father of a minor girl,who had been declared to be the lawful
custodian of the girl by a decree of civil Court, applied under this section for the
custody
63
In the matter of Saithrl. a minor, iaiUQQ widow v. il^AhraJiailS I.L.R .16 Bom.
307
of the child alleging that the girl was unlawfully
detained by the mother, it was held, that,in the
circumstances of the case, the application was misconceived
as it could not be said that there was unlawful detention 6 6
of the child.A complaint by the husband that Ms wife
was unlawfully detained,would really, come under this
section to sav that a magistrate will have jurisdiction
67
to pass orders thereon.
C. t?*RRM!TLBSS SEARCHES AND 5SI7.URES
The general rule regarding searches is that the
search is to be conducted under a warrant issued by a
competent magistrate in this regard on the basis of
credible information and a reasonable belief that the
incriminating articles or things shall be found at a
particular place but there are certain exigencies where
it is necessary to empower reasonable police officers
to carry out searches without first apolvina to the
6s
court for authority. The Legislature h a s , however, attempted to restrict and limit the
powers of the police in case of warrantless searches and has provided certain
■safeguards in order to prevent the abuse of these powers. The emergency may be in
the form of paucity of time with the police officer or the chances of the evidence of
crime being lost i-f-immediate measures ar e not taken by the
officer authorised to make search-.
1. WARRANTLESS SEARCH BY POLICE OFFICER
The police officer who is officer in charge of the polic;
station or an investigating officer is authorised to conduct
warrantless search of the premises under section 165 of the
Code of Criminal Procedure which is as under.*
3.165(1) "Whenever an Officer~in-char ge of a police station or a Police Officer
making an investigation has reasonable grounds for believing that anything
necessary for the purposes of an investigation into any offence which he is
authorised to investigate may be found in any place within the limits of the police
station,"of which he is in charge,or to which he is attached, and that such thing
cannot in his opinion be otherwise obtained without undue delay, such officer may,
after recording in writing the grounds of his belief and specifying in such writing, so
far as possible,the thing for which search is to be made, search,or cause search to
be made, for such thing in any place within the limits of such station.
(2) A police officer proceeding under sub-section( l) , shall,if
practicable,conduct the search in person.
(3) If he is unable to conduct the search in parson, and there is no other
person competent to make the search present at the time,he may, after recording
.in writing his reasons for so doing.,require, any officer subordinate to him to make
the search, and he shall deliver to such subordinate officer an order in writing,
specifying the place to be' searched, and so far .as possible, the thing for which
search is to be made." and such subordinate officer may thereupon search for .such
thing in such place*
 (4) The provisions of this Code as- to search warrants and the general
provisions as to searches contained in Section 100 shall, so far as ma-' be, apply to
a search made under this section.
(5) Copies of any record made under sub-section(1) or, sub-section(3) shall forthwith
be sent to the nearest Magistrate empowered to take cognisance of the . of fence,
and. the owner or occupier of the place searched shall, on appli cation,be furni shed,
free of cost,with copy of the same by the Magistrate.
A search under section may be conducted either by
an officer-in-charge of the police station or by a police
officer making an investigation,and not by any police
officers generally and at large. The investigating officer
is authorised to get the search conducted through a
subordinate officer in case he is himself unable to conduct
the search by authorising in writing the subordinate
officer after recording reasons for not himself making
the search after specifying ihe writing the place? to be
searched and, so far as possible,the things for which the
search is'to be made. An investigation does not always
start after the F.I.R. has been recorded. If a police
officer receives an information while on his beat and if
he delays the search under the formalities of going to the
police station and getting the information recorded,the
purpose of the search may be lost. If he makes a search
immediately, and an receipt of the information there is
nothing illegal in it.He has the jurisdiction to make the 70
search. Btit where 'the police officer is not making an
investigation,but is only directed by the magistrate to
enquire and report to the court under section 20 2, if he
wants to seise the property,he can do so only under
section 28 6 of the Code if the conditions specified in
that section are satisfied. Further, since the matter is
pending before the court,the police officer could not seize
the property without the order of the court. The procedure
in such a case is provided u n d e r section 9 3 . -I. search
warrant may be caused to be issued. The conduct of the
police officer, if he himself seises the property,would
71
be entirely illegal,
The power to search is incidental to the
investigation of the offence which the officer is
72
authorised to investigate. Under Section 165 four conditions are imposed* (i) the
police officer must have reasonable ground for believing that anything necessary for
the purposes of an investigation of an offence cannot, in his opinion,be obtained
otherwise than by making a search without undue delay? (ii) he should record in
writing the grounds of his belief and specify in such writing as far as possible the
things for which the search i s to be mads? (iii) he must conduct the search, if
practicable, in person* and (iv) if it is not practicable to make the search himself, he
must record in writing the reasons for not himself making the search and shall
authorise a subordinate officer to make the search after specifying in writing the place
to be searched, and, so
far as possible,the things for which the search is to be made, is search is a process
exceedingly- arbitrary in character, stringent statutory conditions are imposed on the
exercise of the power. This section defines the powers of a police officer to make a
search without a warrant. These powers are given to an officer- in-, charge. of a. police
station or a police office" making an investigation, and hot to police officers generally
and at large. Assuming the officer to be of the class referred to,the next prerequisite is
that he must have reasonable grounds for believing that he will find a thing in a place
within the limits of his police station. His being of that opinion is not in itself sufficient
to justify him in making a search. The normal procedure in such a case is intended to
be that he should apply to the magistrate for a search warrant. The requirement of a
search warrant is dispensed with if he has reason to believe that the thing for which
he means to search cannot be otherwise obtained without undue delay, that is to say,
that the object of the search would be ftustrated if he waits, for a search warrant. If all
these conditions are fulfilled,the officer must record in writing the grounds of his belief
and specify in such writing so' far as possible, the thing searched for. There is one
more essential preliminary. Section 100 of the Code must be complied with, that is to
say,before making the search, he is to call upon two or more respectable
 inhabitants of the locality to attend and witness the
search which is to be in their presence. When he has done
all this, and not' befor e, the Code authorises him to search
or cause search to be made for such thing. It is very
noticeable that section 165 differs sharply from
Section 93 in the absence of a power to conduct,without
a search warrant, a general search or inspection. This section is meant to 'be used in
cases where a search warrant would be made use of in the ordinary course,but lack
of time renders it impolitic to use it.
^f the section did apply,proof of the search might be inadmissible for other
reasons,but there would be no.
necessity to call either of the witnesses to the search
having regard to the express terms of section 103. where
it is alleaed and proved that the articles were produced
by the accused himself, this section does not apply.
Section 165 applies to a search by the District
Superintendent under the Jammu and Kashmir Gambling Act,
118 of 1977 Bikrami but not to a search by a Prohibition
Officer under the Madras Prohibition Act 10 of 1937. It is
applicable to searches made by Excise Officer by virtue

of section 18 of the Central 3xci se and Salt Act. The section has no application to a
search for persons sought
to be arrested in connection with a cognisable offence.
Even if the provisions of the Code are made
applicable to a search under any other Act, as under section
13 2(13) of the Income Tax Act, 1961, the limitations
prescribed under this section are not necessarily
80
incorporated therein.
If in the exercise of the power or the performance
of the-official duty,improper or unlawful obstruction or
re si stence i s encounter ed, there is the right to use
reasonable means to renove the obstruction or overcome the 81
 resi stence, (c)
In the matter of a search under section 165,the
32
Supreme Court in S_tr.tais-SUsn v.J^ehlLan has laid down the following safeguards—
(i) the empo\\rered officer must have reasonable grounds for believing that anything
necessary for the purpose of investigation into ah-offence ( or where the search is in
connection with the liability to pay tait, for the purpose .of recovery of tax) may be
found in any place?
(ii) He must be of the opinion that such thing cannot be otherwise, got without undue
delay.
(iii) ho must rocord in writing the arounds of his belief? and
(iv) he must speed f** in such writing so f?r as Possible the thing for which the search is
made.
Regard being had to the remil-^rity of official acts, the
Court is entitled to presume th-'t the sub-inspector must
have t-hen the necessarv precautions before taking the
search. If no ouesti ^n was put t~ him as to wh^thrr he had
taken the necessary precautions, the court cannot assume
83
an"- fact against the prosecution.
If the intimation w"M ch was sent to the Sub-
Divisional Magistrate and the terms in which the
communication was sent establish that the police officer
conrnlied with the provisions of this section,
84
tn ~t should be enough, (d)
rjsjst Jla.cd-afc.K.a.t„e_______________
Sub-section (5) to Section 1.65 of the Code of Criminal Procedure retires
cooios of the records made under Sections 1.65 (1) and (3) to be sent forthwith to the
nearest Magistrate empowered to take cognizance of the offence. This provision
provides an extra-safeguard to ?rotej2t individuals against general or roving search.
For in stance, where a police officer intends to search
a house for stolen motor-cycle or a scooter and has
specified it in writing beforehand,he can hardly be
in a position to claim any legal authority to open and
search the suit cases in the house since these vehicles cannot
be concealed in a suit case. 'The safeguard consists in that
the search,when the record is sent forthwith to the
m agi str ate, woul d be in the knowledge of the magi str ate, who,
if considered it necessary,might even be present at the
olace of search and see that the search is made in
85
accordance with law®
Although the words used in the sub-section are
w
shall forthwith be sent? the Delhi High Court has pointed
out that the provision has to be regarded as directory and 86
not mandatory.
It is quite possible that there may be a situation
in which,for reasons beyond his control,the
police officer may not be able to send the record
forthwith to the nearest Magistrate. Even in such
a case,the search would become bad in law,if the
provision is regarded as mandatory,and the entire
pur-cose of conferring the power to search UP on the
police officer by section 165 would be defeated.
.
T
he safeguard thus provided i s an important and
valuable safeguard, and the re^uirenent in the sub-section
should be fulfilled by the Police Officer. If he omits to
send the record made under sub-section (1) and (3) forthwi
to the nearest magi strate, the search would not be one
in accordance with the provisions of the Code and would,
88
therefore, be irregular in law. The search would be irregular even if the copy of the
record prepared under sub-section (3) is sent to the maaistrate,but after
89
considerable delay,when the search had already been made.
Where a police officer omitted to send copies of
 the record prepared by him before the search to the
nearest magistrate,conviction for resisting the police
from conducting the search was set aside
In the case of a search by a Prohibition Officer
under the Madras Prohibition Act, it is section 29 of that
Act and not this section that applies, and there is no
obligation on the Prohibition Officer to send the records to the magistrate.
Prom the mere fact that the search, list and the
requisition made at the police station alone have been
produced it cannot be presumed that there has been

non-compliance with the provisions of the law. "Where Mahazar itself and articles'-
recovered were forwarded to
the court two months after the search, it was held that
there was contravention of the - sub- section (5) . The
provision of sub-section(5) regarding the sending of
seizure lists to the magistrate immediate!v after they
were prepared is mandatory,,
(e) Deputation of subordinate officer
Section 165(3) refers to a case where the officer
is himself unable to .conduct the search and deputes
somebody else to do so. It has no application to a case
in which the officer in the process of conducting that
search himself has a part of it actually done under his
own direction and in his own presence bv one of his 95
subordinates. -Sub-section (2) directs that the officer referred to in sub-section(1.)
shall, if practicable, (
conduct the search in person. But, in the event of it.'not
f
being practicable for him to do so,provision is made / in sub-section(3) for him to
delegate his authority ■ to a subordinate. Here again,the Legislature insists on
certain preliminary steps being taken. In the first place,the officer is required to
record in writing the reasons why it is necessary for him to delegate his duty.
Secondly, he must deliver to the subordinate officer to whom he delegates his
 authority an order in writing to this effect. Thirdly,the written authority delivered -to
the -subordinate who is ~actua-iiv -to- conduct the search
must specify the place to be searched, and so far as
possible, the thing for which search is to be made. The
sub-section concludes with these words M and such
subordinate officer may,therefore, search for such-
thing in such place." These words mean that when a
subordinate officer is instructed to carry out a search,
which it is not practicable for the superior officer to
conduct,he is to search only for the thing which he
is instructed to search for, and that he is to
search for it only in the place specified in his 96
authority. If the provisions of sub-section (3) are
not complied with, the search will be unauthorised, - - 97
In Queen v. grain the conviction of the accused ,
under section 143 and 353, 1.P.C., for resisting search,
was quashed on the ground that the subordinate police
officer conducting the search was not empowered by an
order in writing.
A subordinate police officer is not empowered,
without a warrant,to enter a house in search of property,
though he may certainly do so in search of a person
who is chprcred with having committed an offence for
which he is liable to be arrested without a warrant.
If a constable goes for search without any written
authority,he does not under sub-section (3) of section 165,
lawfully exercise the power of a public servant. To such
a case section 99,I.P.C., has no 'application. (f) Sga^j^Ejjxajr. be
Venkatapoa Naidu v. Kjng-3nperor f an Insppector
acting under section 165 seated himself outside the house
of the accused and sent'a constable into the house to
conduct the search. The accused asked the constable
for a list of the" articles he had cane to search for
and when none was produced he objected to the search for
 being carried out by the constable and pushed him out,
It was held, distinguishing pgisjsarr Empress v.. Pukot Ko.tu that
the accused'could not be convicted under section 353,1.P.C.
The Inspector himself should have personally conducted
the search and he was not justified in sitting outside
and directing a subordinate to search without giving a
written order specifying the articles to be searched for.
ruling' was dissented from in 3ata,gop_al_a_ChaxX 2
Satrughpa BehaEa. and it was held that all that was intended was that the.officer
should be present on the spot and exercise a general supervision over the search in
contradistinction to the cases where he is unable to go to the spot and,
therefore,depute a subordinate by a written order to conduct the search
in his place. (g)
The provisions of section 165 of Cr.P.C. may be
licable to searches under other Acts,depending upon
statutory provisions governing such searches.
The provisions of this section apply to searches
under section 41 (2) of the Madras General Sales Tax Act 3'
9.
Section 5 of the Public Gambling Act will prevail
r the general provisions of the Code relating to
rches. The provisions contained in this section will
therefore, be applicable to a search under section
4
the a fore-said Act.
The search under Section 105(2) of the Customs Act,
2, is however,carried out under different circumstances.
condition under this section that the reasons for
eving the facts mentioned in Section 165(1) must be
orded to enable the police officer to make a search
ently when the search warrants cannot be obtained
not be invoked in a search under Section 105(2) of the 5
stoms Act, 196 2.
Offence under the Forward Contracts (Regulation)
Act* 1952 being cognigable offences and the provisions of the
Code of Criminal Procedure having been applied to searches
under the afore-said Act under section 22-A(2) , so far as
may be,the provisions of the section will be available to
the police to make a search. The insertion of section
22-A does not exclude the applicability of the Criminal
Procedure Code to the investigation of offences under the
Forward Contracts (Regulation) &ct, 195 2. If the seizure of
documents had been made under section 165 of the Criminal
Procedure Code,then the special rules of evidence enacted
in section 22-B of the said Act are not applicable for
6
proving the offences under that Act. In other words, the presumption would not arise
and the prosecution would have to prove the documents according to the ordinary
rule of evidence. Forward Contract ( Regulation) Act, 1952 as emended by Act 62 of
I960 prescribes twin procedures for investigation, search and seizure* by inserting
sections 22-A and 22-B in the Act. A special rule of investigation has been provided
under section 22-B by raising of a presumption as a result of which the burden which
ordinarily lies on the prosecution has been shifted to the defence. Under section 22-
A(1) a special procedure of authorisation by a magistrate has been prescribed and a
special credence is to be given to the books of account and documents seized from
any place in section 22-B(i) pursuant to the
Particular procedure pr e scr i bed,1e ads to the conclusion that the benefit of
section 22-3 of the Act is confined to books of account and documents which
have been seized pursuant to a warrant authorising a police officer not below
the ranlc of sub inspector as prescribed in section 22-A(1) • In order to have
the benefit of section 22-B the prosecution must carry on the search and
seizure of the books of account and documents in the manner prescribed
under section 22~&(1) when investigation has been carried out under the
provisions of the Code of Criminal Procedure by following section 165 of the
Code the presumption would not arise and the prosecution will have to prove
documents according to the ordinary rule of evidence. Thus two separate
positions arise depending upon whether investigation is conducted under the
Act or under the Criminal Procedure Code. Ci) Searches under Foreign
Exchange fiffflil frUQn foot.* 1973
Foreign Exchange Regulation Act section 37 confers power on any
officer of en fore en en t not below the rank of Assistant Director of
Enforcement to search premises. Such power can be exercised if the officer
has reason to believe that any document which, in his opinion,will be useful
for or relevant to, in investigation or proceedings under the Act, are secreted
in any place* Section 37(2) provides that "the provisions of the Code relating
to searches, shall, so far as may be, apply to searches directed under section
37(1)M. Reading the two sections together
it merely means that the methodology prescribed for carrying out the search
provided in section 165 of the Code of Criminal Procedure has to be generally
followed.
F.B.R.A. and others it has been held that the expression "so far as may be" has
always been construed to mean that those provisions may be generally followed to
the extent possible. If section 165(1) was to be incorporated by pen and ink as
sub-section (2) of section 37, the legislative draftsmanship will leave no room for
doubt by providing that the provisions of the Code of Criminal Procedure relating to
searches shall apply to the searches directed or ordered under section 37(1) except
that the power will be exercised by the Director of Enforcement or other officer
exercising his power and he will be substituted in place of the magistrate. The
provisions of sub-section( 2) of section 37 have not been cast in any such language.
It merely provides that the search may be carried out according to the method
prescribed in section 1^5(1). If the duty to record reasons which furnishes ground for
entertaining a reasonable belief were to be recorded in advance,the same could
have been incorporated in section 37(1), otherwise a simple one line section would
have been sufficient that all searches as required for the purpose of this Act shall be
carried in the manner prescribed in
section 165 of the Code bf the officer to be set out in the section. In order to
1
give full meaning to the expression" so far as may be" sub-section (2) of
section 37 should.be interpreted to mean particularly the procedure relating to
search as enacted under section 165 shall be followed. But if a deviation
becomes j necessary to carry out the purposes of the Act in which
section 37(1) is incorporated,it would be permissible
i
except that when challenged before a court of lav/,!
Justification will have to be offered for the deviation.
So section 165(1) of the Criminal Procedure Code is
not incorporated by pen and ink in section 37(2) of
Foreign Exchange Regulation Act, 1973. j
The Immoral Traffic ( Prevention) Act, 1956 as
mended by Act No.44 of 1986 provides a provision for
search of premises without a warrant by the special
police officer or traffic king police officer under
section 15 of the said Act which runs as under*
8.15(1) Notwithstanding anything contained in any order law for the time being
in force, whenever the special police officer ( or the ' trafficking police
officer,as the case may be,) has reasonable grounds for believing that an
offence punishable under this Act has been or is being committed in respect
of a ( person) living in any premises,and that search of tlie pr anises with
warrant cannot be made without undue delay, such officer may, after recording
the ground of his belief,enter and search such pr anises without a warrant.
(2) Before making a search under sub-ection( l) , the special police officer ( or
the trafficking police officer, as the case may be) , shall call upon two or more
respectable inhabitants ( at least one of whom shall be a Woman) of the ;
locality in which the place to be searched is situate,to attend and witness the
search and may issue an order in writing to than
or any of than so to do.
(provided that the requirement as to the respectable inhabitants being
from the locality in which the place to be searched is situate shall not apply to
a woman required to attend and witness the search) •
(3) 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 187 of the Indian Penal Code (45 of I960).
(4) The special police officer or the trafficking police officer, as the case
may be, entering any premises under sub-section(1) shall be entitled to
remove therefrom all the person found therein)
(5) The special police officer ( or the trafficking police officer,as the case
may be, after removing the ( person) under sub-section(4) shall -forthwith
produce him before the appropriate magistrate.
(5-A) Any person who is produced before a magistrate under sub-section(5),
shall be examined by a registered medical practitioner for the purposes of
determination of the age of such person or for the detection of any injuries as
a result of sexual abuse or for the presence of any sexually transmitted
disease.
Explanation.— In this sub-section "registered medical practitioner * has the
sane meaning as in the Indian Medical Council Act,1956.
( 6) The special police officer ( or the Trafficking police officer,as the case may
be,) and other person taking part in, or attending and witnessing a search shall
not be liable for any civil or criminal proceeding against than in connection
with, or for the purpose of the search.
(6_.?0 The special police officer or the Trafficking police officer, as the case
may be, making a search under this section shall be accompanied by at least
two women police officers, and where any woman or girl removed under sub-
section(4) is required to be interrogated,it shall be done by a woman police
officer and if no woman police officer is
avail able, the interrogation shall be done only in the presence of a lady
member of a recognised welfare institution or organisation. Explanation.-For
the purposes of this sub-section and section 17-A "recognised welfare
institution or organisation" • means such institution or organisation as may be
recognised in this behalf by the State Government) .
(7) The provisions of the Code of Criminal Procedure, , 1973 ( 2 of 1974) , shall,
so far as may be, apply to any search made under the authority of a warrant
issued under section 94 of the said Code) • This section is in pari-materia with
section 1$5 of the
Criminal Procedure Code, 1973.8
• ^ ............................................................ .................. 9
held that the provisions of search contained in section 165 of the bode of
Criminal Procedure are applicable to the search conducted under section 15 of
the Immoral Traffick ( Prevention) Act. If search is in contravention of section
165 of the Criminal Procedure Code,the trial is not rendered illegal tanless the
 accused has been prejudiced. This is irregularity which is curable under
section 537,Cr.P.C. Recording of reasons under section l65,Cr.P.C.,does not
confer on the officer jurisdiction to make search though it is a necessary
condition for doing so. The jurisdiction or power to make search is conferred
by the statute and is not derived from the recording of reasons. It cannot be
held that if a search is not carried out strictly with the provisions of that
section the trial is rendered illegal.
Gold Control Act, 196s empowers the Gold Control
Officer under section 58 of the Act,power of search and
10
seizure on suspicion only.
The Central Excise and Salt Act, 1956 enables
authorised officer to make search only for investigation
of an offence. By virtue of section 18 of the Central Excise
and Salt Act the provisions of section l65,Cr.P.C. must be
followed for any search under rule 201 of the Central Excise
and Sales Tax Act. Recording of reasons under section 165,
Cr.P.C. prior to search is obligatory and ilon-ccmpliance
of the provisions makes searches Illegal. The search made
...................... . .... -............ 11
in case St*te> of Rajasth^n v.R^saaB in contravention of the
provisions of section 1^5 of the Code was held illegal
and the appeal of the State was dismissed. Karnatka Excise
Act 1966 also follows the provisions of section 165 of the
Code of Criminal Procedure and the inspector who searched
the car of the appellant
Kprnstka. had not made any record of the grounds of his reasonable belief that an
offence under the Act was being committed before proceeding to search the
car. This, therefore, renders the entire search without jurisdiction and as a
logical corollary vitiates the conviction.
Jail Manual under rule 55 2-A provides for a search of the person who
wants to interview a prisoner. A person who desires to interview a prisoner
may have to subject
himself or herself to the search in accordance with the
rules and regulations governing the interview. In case
such a person is a female she can be searched only by a
■ 13..
matron or a female warder.
The Narcotic Brugs and Psychotropic Substances Act, 1985,provides a
special procedure for issue of warrant of arrest and authorization for searches and
investigation of the offences under the Act by the State Government in this behalf.
The relevant provisions are contained in sections 41,42,43,49,50 and 51 of the -Act
which are given belows
S.4l(1) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate
of second class specially empowered by the State Government in this behalf,may
issue a warrant for the arrest of any person whom he has reason to believe to have
committed any offence punishable under Chapter IV,or for the search,whether by
day or, by night,of any building,conveyance or place in which he has reason to
believe any narcotic drug or psychotropic substance in respect of which an offence
punishable under Chapter IV has been committed or any document or other article
which may furnish evidence of the commission of such offence is kept or concealed.
(2) Any such officer of gazetted rank of the departments of central
excise,narcotics,customs, revenue intelligence or any other department of the
Central Government or of the Border Security Force as is empowered in this behalf
by general or special order by the Central Government,or any such officer of the
revenue, drugs control,excise,police or any other department of a State Government
as is empowered.
in this behalf by general or special order of the State Government, if he has
reason to believe from personal knowledge or information given by any person
and taken in writing that any person has committed an offence punishable
under Chapter IV or that any narcotic drug, or psychotropic substance in
respect of which any offence punishable under Chapter IV has been committed
or any document or other article which may furnish evidence of the
commission of such offence has been kept or concealed in any buiiding,
conveyance or pi ace,may authorise any officer subordinate to him but
superior in rank to a peon, sepoy, or a constable,to arrest such a person or
search a building,conveyance or place whether by day or by night or himself
arrest a person or search a building,conveyance or place.
(3) The officer to whom a warrant under sub-section (1). is address and the
officer who authorised the arrest or search or the officer who is so authorised
under sub-section (2) shall have all the powers of an officer acting under
section 4 2.

S.42( l) Any such officer ( being an officer superior in rank to a peon, sepoy or
constable) of the departments of central excise,narcotics, customs,revenue
intelligence or any other department of the Central Government or of the
Border Security Force as is empowered in this behalf by general or special
order by the Central Government, or any such officer (being an officer superior
in rank to a peon, sepoy or constable) of the revenue,drugs control,excise,
police or any other department of a State Government as is empowered in this
behalf by general or special order of the State Government, if he has reason to
believe from personal knowledge or information given by any person and
taken down in writing,that any narcotic drug, or psychotropic substance,in
respect of which an offence punishable under Chapter IV has been committed,
or any document or other article which may furnish evidence of the
commission of such, offence is kept or concealed in any building,conveyance
or enclosed piace,may,between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place?
(b) in case of resistence,break open any door and remove any
obstacle to such entry"
.(c) seize such drug or substance and all ipajserials used in the manufacture
thereof .and any. .other article and any animal or conveyance which he has
reason to believe to be liable to confiscation under this Act and any document
or other article which he has reason, to believe may furnish evidence of the.
commission of any offence punishable under Chapter IV relating to such drug
or substance? and
Cd) detain and search, and,if he thinks proper, arrest any person whom he has
reason to believe to have committed any offence punishable under Chapter IV
relating to such drug or substance?
 provided that if such officer has reason to believe that a search warrant
or authorisation cannot be obtained without affording opportunity for the
concealment of evidence or facility for the escape of ..an offender,he may
enter and search such building,conveyance or enclosed place at any time
between unset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-
section(1) or records grounds for his. belief under the proviso thereto,he shall
forthwith send a copy thereof to his immediate officer superior.
Power of pukjiajaLac&s
S.43* Any officer of any of ..the department mentioned in Section 42 may—-
(a) seize,in any public place or in transit, any narcotic drug or
psychotropic substance in respect of which he has reason to believe an
offence punishable under Chapter IV has been committed, and, along with
such drug or substance, any animal or conveyance or article liable to
confiscation under this Act, any document or other article which he has
reason to believe may furnish evidence of the commission of an offence
punishable under Chapter IV relating to such drug or substance*
(b) detain and search any person whom he has reason to believe to
have committed an offence punishable under Chapter IV, and,
if such person has any narcotic drug or psychotropic substance in his
possession and such possession appears to him to be unlawful, arrest him
and any other person in his company.
SScplanati n.— For the purposes of this section, the expression "public place"
includes any public conveyance,hotel, shop, or other place intended for use
by,or accessible to,the public.
S.49? . Any Officer authorised under Section 42,may,if he has reason to
suspect that any animal or conveyance is, or is about to be,used for the
transport of any narcotic drug or psychotropic substance, in respect of which
he suspects, that any provision of this Act has been, or is being,or is about to
be,contravened at any time stop such animal or conveyance, or, in the case of
any aircar ft, compel it to land and—.
(a) rummage and search the conveyance , or part thereof?
Cb) examine and search any goods on the
... , animal or in the conveyance*
(c) if it becomes necessary to stop the animal or the conveyance,he may use all
lawful means for stopping it, and where such means fail,the animal or the
conveyance may be fired upon.

Se50(1) When any officer duly authorised under.Section 42 is about to search

any person under the provisions of Section 41, Section 42 or Section 43 he
shall, if such person so requires,®^ take such person without unnecessary
delay to the nearest Gazetted Officer of any of the departments mentioned in
section 42 or to the nearest Magistrate.
(2) If such requisition is made,the officer may detain the person
until he can bring him before the Gazetted Officer or
the Magistrate referred to in sub-section(1) .
(3) The Gazetted Officer or the Magistrate
before whom any such person is brought shall,if he sees no reasonable
ground for search,
forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone except a female.
gr,oyj.sipns of ,CQde of CgAminal
S.51- The provisions of the Code of Criminal Procedure, 1973(2 of 1974) shall
apply, in so far as they are not inconsistent with the provisions of this Act,to all
warrants issued and arrests, searches and seizures made under this Act.
..........................................................................................1-4-
In State of Punj ah v. AnqrSingly a Bivision
Bench of the Punjab and Haryana High Court has held that when the prosecution
has failed to prove that the Head Constable was authorised to conduct investigation
under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, so,the
judgment of acquittal passed by the trial court was affirmed.
I of P»i """ ..................^
Division Bench of the Punjab and Haryana High Court has held that Section 50 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 is mandatory and the
 failure to comply with the mandatory provisions vitiates the trial. Their Lordship
observed* -
In dealing with the provisions of Section 50 of the Act,it cannot but be
observed that, it would be rendering them negatory if the safeguard provided thereby
to the person apprehehended,to be searched in the presence of a gazetted officer or
magistrate can be brushed aside on
merely the bald statement of a police officer,that such
offer was declined by him. As is well knox-m,the
legislature has always been somewhat wary of accepting
statements made to the police, as would be apparent from
the provisions of Section 162 of the Code of Criminal
Procedure,whereby, statements made by an accused to the
police in the course of investigation,are made inadmissible
and if such statement is a confession,it is also hit by
section 25 of the Evidence Act.
16
In ,Sud,ar_shan.. Kumar-' ,s case it has no doubt been
suggested that such offer should be made before two
reliable and independent witnesses,but with respect it
would be appropriate and more in consonance with the
interests of justice that as a rule of general practice,
the person apprehended should be taken before gazetted
officer or a magistrate and searched in his presence.
The stringent minimum punishment prescribed by the Act
clearly renders such a course imperative. Search
otherwise than before a gazetted officer or Magistrate
should,therefore, be the exception and that too for sound
and convincing reasons founded upon reliable material
on record. The onus of showing that the person to be
searched declined such option is upon the prosecution.
Seen in this light,there can be no escape from the
conclusion that violation of the provisions of section 50
of the Act,in case of the appel 1 an t-Jimr it Singh, stands 17
writ large".
Cii)
McLtor,
Under Section 206 of the Motor Vehicle Act any police officer or other
person authorised in this behalf by the State Government may seize if he has
reason to believe that there is any false document pertaining to motor vehicle,
and also the driving licence of the driver of the motor vehicle charged with any
offence under the Act, if the officer has reasons to believe that such driver
shall abscond or othervd.se avoid service of summons? in exchange for
ac)cnowledgement of the seizure of the licence. The seized licence has to be
forwarded to the court taking cognizance of the offence. Acknowledgement of
seizure of the licence authorises the driver to drive the vehicle till the licence
is returned to him or until the date specified in the licence. This period may be
extended if, for no fault of the driver,the licence is not returned to him within
this period.
wn'tbajai;
certificate of .fiegLstratnon,pennii^tc
The authorised police officer 6r other person is empowered to seize a
vehicle under section 207 of the Motor Vehicle Act which —(1) has been or is
being used in contravention of section 3 and 4 i.e. driving without a valid
licence or (2) has been or is being used without a certificate of registration as
required by section 39, or (3) has been or is being used without a permit as
required by section 66(1), or (4) has been or is being used in contravention of
condition of the permit relating to the route,area in which and the purpose of
which the vehicle may be used.
the
Supreme Court has observed*
A precondition, to the seizure and detention ©f the vehicle is that the police officer or
authorised person must have reason to believe that one of the other of the offences
specified, punishable as we have seen under Section 123 ( now Section IS 2 ) , has
been or is being committed, Whenever property involved in the commission of an
offence is seized,the seizure is generally expected to serve a manifold purposes
such as to prevent repetition of the offence, to use the thing seized as material
evidence in the prosecution,to preserve the property so as to enable the court to
pass appropriate orders for its disposal by way of destruction, confiscation,or
delivery to any person claiming to be entitled to possession thereof or otherwise.
There is no reason to assume that the seizure under section 129-A ( now section
207) is any different and is not to serve any of these purposes or any purpose at all.
19
Where a truck is seized on the ground of plying without
a permit the proper course for the magistrate is to
direct the owner to approach the authority concerned
for renewal of the permit and that authority can also call
for the payment of dues by way of taxes and penalties.
Seizure of the vehicle for contravention of a condition of the permit not
relating to the route or area or purpose of operation of the vehicle is not covered by
section 207.
Where the vendee of a vehicle is granted permission
to hold the permit that had been granted earlier to the
vendor,the vdiicle cannot be seized under this section
even though there be no actual endorsenent of the transfer
entered in the permit. Seizure of the vehicle is unauthorise*
and illegal if the accused has not violated section 66(1) .
A violation of the section 66(1) takes place only when the
vehicle which is being driven is not covered by the permit.
It is not necessarv that the person running the vehicle
21
should be the holder of the permit.
Where a vehicle has been or is being used in contravention of the provisions
of section 3 or 4 or \tfithout a permit the authorised police officer or person is given
an option by the proviso to seize the certificate of registration instead of the vehicle.
This action will disable the plying of the vehicle.
Under sub-section (2) of section 207 the owner or the person in charge of
the vehicle which has been seized and detained may apply to the transport authority
or authorised person for release of the vehicle. He must submit the relevant
documents such as?
(a) the driving licence, or
(b) the certificate of age, or
{c) the certificate of registration, or
 (d) the permit whichever is required and for want of which the vehicle
was seized and detained. After verification of the document, the vehicle may
be released subject to such conditions as may be imposed.
(h)
mandatory
The police officer is bound to record in writing the
grounds of his belief as to the necessity for search, and
specify clearly the article or articles for which the
22
search is to be made. The recording of the reasons is an
important step in the matter of search, and to ignore it
is to ignore the material part of the provisions governing
searches. If this step is ignored,the search would be a
search in contravention of the provisions of the Code. The
requirenents of sub-section(1) of section 165 are clearly
intended to restrain a police officer from initiating
or conducting anything in the nature of a general search.
The different High Courts have expressed conflicting
views as to the mandatory or directory nature of the
provisions and the effect of the non-compliance with the sane
The Allahabad High Court has taken the view that the failure
to record reasons is not a material error so as to vitiate
the conviction, if the circumstances point to the guilt but where the search was
conducted in contravention of the provisions of sub-section(1) and accused
assaulted the
Sub Inspector and the injuries caused proved fatal, it
was held that the accused has the right of self-defence
and could not have said to have voluntarilv caused death
and was entitled to acquittal. Bombay High Court has taken
the view that the search carried out in contravention of
sub-section (1) ? it may be an irregularity,but it will
not vitiate the action taken in the absence of maLaficLas.
Calcutta High Court is of the view that the failure to
record reasons under section l65(1) of the Code of Criminal
 Procedure relating to the search is not illegality which
can be urged as a ground for acquittal. Delhi High Court
has held that the provisions of the section are only
directorv and not mandatory. The Lahore High Court had
taken the view in M^inaai^Sis^v.G^uXgEuMoM that the
provisions of the sub-section are directory aid not
mandatory,but in v.MoM^Siiah the provision has been
held to be mandatory and not directory,though the position
is eccepted that the safeguards may be carried out as
nearly as they can be in the exigencies and the circumstance
of each case. Patna High Court has held in £Q0±_ilah£a v. Emperor that where a
police officer without complying
with the requirements of the section, attempted to search,
he cannot be said to be acting in good faith within the
meaning of section 5 2 of the Indian Penal Code. An accused
would be justified in pushing him back in order to prevent
a search,which is not in accordance with law. The Punjab
High Court is of the view that the provisions of the
section are mandatory and must be carried out fully or as
nearly as they can be, in the exigencies and circumstances 33 .
of the case. The recording of reasons is an important
subject in the matter of search and to ignore it is to
ignore the material part of the provisions governing
searches,the search in such a case will be a search in
contravention of the provisions of the Code.
The First draft of the Haryana Police rules 1977 Vol.III. in rule 25.23
describes the procedure of search as follows"
25. 23(1) The rules regarding searches by police officers are contained
in sections 165 and l66,Code of Criminal Procedure. Notices of search under
section 1^5, Criminal Procedure Code, summons to persons to witness search
under section 100(4) Criminal Procedure Code, and search lists under section
100(5) ,Criminal Procedure Code, shall be prepared in forms 25.23 (1) (a) (b)
and (c) ,respectively.
 (2) Kn officer in charge of a police station receiving a requisition to
search,under Section 166 Code of Criminal Procedure,or other 1 aw applicable, shall
comply without unnecessary delay and shall take all necessary precautions to
ensure a successful search.
Sk police officer making such requisition may attend personally and assist in
such search or may send one or more of his subordinates for that purpose.
(3) Gazetted officers supervising investigations
and inspecting officers shall take disciplinary action
against investigating officers who carry out searches
under section 1^5,Code of Criminal Procedure, TArithout
35
sufficient justification. Rule 25.5 2(3) provides that
detailed lists of stolen property, or of property seized
in the course of a search, shall be entered in the first
case diary aub&iitted after the facts relating to such
property were reported to,or discovered by,the
investigation officer. .Sub clause (4) of this rule further
provides that tfee fact that copies of the record prepared
under the provisions of section 165 or 166 Code of
Criminal Procedure,have been sent to the nearest
magistrate empowered to take cognizance of the offence
36
shall also be recorded.
Himachal Pradesh High Court has held in B.g.Thind V. 37
StatP of w.P. ^nd ^nnther that non-compliance of sub-sectioi
(1) and (5) of section 165,Cr.P.C. do not render the entry
in the searched premises as illegal. In this case the
reasons for the search under section 165(1) and (3) Cr.P.C.
were recorded in the zlmnies (case diaries) and were not
prepared separately as envisaged in section l65 fCr.P.c.
These copies of the record prepared under section 165(1)
and (3) of the Criminal Procedure Code is not only sent to
nearest magistrate empowered to take cognizance of the
offence but copies thereof are also supplied to owner
or occupier of the place searched, on his making
application to the magistrate as provided in section 165(5)
of the Code of Criminal Procedure. If such record forms
part of zjnmi.es it cannot be made available to the owner/
occupier of the place searched who is an accused as z rimni s
are privileged documents under section 172(3) Cr.P.C. with the
result the provisions of section 165(5) Cr.P C., is rendered
nugatory and the valuable right to the owner/occupier of
the place searched who is an accused is lost. The court
held that this is merely an irregularity and entry of
Shri B.S.Thind in the searched premises does not amount 38
to trespass.
(i) ' aaacsk-ija ■ wrather -So1 i cq qsjlLs
ia&Ljadirt^on unflfir" gftnUon- I66,QT,P.C«.
Normally a police officer can make a search only within his -own-jurisdiction.
But section 166(1) provides
that an officer-in-charge of a police station or a police officer { not below the rank of a
sub-in spec tor) making an investigation,may require an officer-in-charge of another
police station to cause a search to be made in any place, and under sub-section(3)
of the sane section,
if the delay occasioned by requiring an officer-in-charge
«
of another police station to cause a search to be made
might result in the evidence of the commission of an
offence being concealed or destroyed,he may himself
search or cause to be searched any place in the limits
of another police station. If the police officer making the
search suspects that the help of the police officer of the
other police station would not be readily available there
would be justification for him to take the search himself
39
even outside his own jurisdiction. (j) Effect of i .11 egal searrh on seizure
.aad conviction
 The failure to comply with the provisions regulating searches may cast doubt
upon the bona des of the officers conducting the searches. But when once the
evidence has been believed,it is obviously no defence to say that the evidence was
obtained in an irregular manner. There is nothing in the law which makes such
evidence inadmissible. While upholding the search conducted under section 13 2 of
the^ Income Tax Act,196i,a bench of five judges of the
Supreme Court dealt with the question whether evidence
illegally obtained could be admitted. The Court said it
could be admitted- and for this reliance was placed on a
41
Privy Council decision in ICuruma v. Tja£^Q11£eEL,i955 A.C. 197.
The Supreme Court quoted with approval the following passage
from the said Privy Council decisions
The test to be applied,both in civil and
criminal cases,in considering whether evidence
is admissible is whether it is relevant to the
matters in issue. If it is, it is admissible and
the Court is not concerned with how it was 42
obtained.
It is not correct to say that where there has been illegal search,evidence of
either the finding of articles or of circumstantial facts or of the witnesses making the
search is inac&nissible. The mere illegality of the search will not at all shut out in the
way of making inadmissible any evidence otherwise admissible. No doubt it is true
that where there has been illegal search it will be reasonable to view with more than
ordinary caution the
43
evidence of those persons who have made the illegal search.
If the seizure is illegal,the seizure of the
articles is not vitiated. In another case the Suprene
Court has held* "Assuming arguendo, that the search was
illegal,then also, it will not affect the validity of the
seizure and further investigation bv the customs

authorities or the validity of the trial".

In ILa^haklshaB v. Sisi^MJLE..*the appellant was a
postman. He and his father were living in the sane house.
Certain undelivered postal articles were recovered from
an almirah in the house,the key of which was produced by
the father. The appel 1 ant,Radhakrishan was tried and
convicted of an offence under section 5 2 of the Post
Offices Act, for secreting postal articles. One of the
contentions raised on behalf of the appellant was that the
search and seizure was illegal inasmuch as it was in
contravention of the provisions of sections 103 and 165
of the Code of Criminal Procedure. Mudholk,p„r * J»speaking
for the Court,repelled this contention,thus*
"So far as the alleged illegality of the search is concern©!, it is sufficient to say that
even assuming that the search was illegal the seizure of the articles is not vitiated. It
may be that where the provisions of Ss. 103 and 165,Code of Criminal Procedure,
are contravened the search could be resisted by the person whose premises are
sought to be searched. It may also be that because of the illegality of the search the
Court may be inclined to examine carefully the evidence regarding the seizure. But
beyond these two consequences no further consequence ensues.
Again, in ffhyam Lai v. State of
Jaganmohan Reddy,J,delivering the opinion of the Bench,
held that even if the search is illegal being in
contravention with the requirements of section 165,Criminal
Procedure Code, 1898,that provision ceases to have any
application to the subsequent steps in the investigation.
In St at a of Kpral P v.Alasssrry MghfWffCir question
arose,whether the failure on the part of the Food Inspector
to comply strictly with the statutory provisions,would
vitiate the trial and conviction of the respondent. The

Supreme Court answered this question in the negative, and

referred with approval to the decision in Stone v. Powell
wherein the Supreme Court of the United States of America
made a clear departure from its previous decision in the
 application of the "exclusionary rule* of evidence. The
prosecution in those cases relied upon the evidence of searcl
and seizure,which were said to be unconstitutional and unlaw:!
unlawful , Mr .Justice Powell, who delivered the leading
majority judgment,made these pertinent observations*
Upon examination,we c&nclude, in light of the nature and purpose of the Fourth
Amendment exclusionary rule,that this view is unjustified. We hold,therefore, that
where the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, the Constitution does not require that a State prisoner be granted
federal kahaas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial. 50
In his concurring opinion,Chief Justice Burger
highlighted the injustice that often resulted from application of the exclusionary rules.
Said the learned Chief Justice.
*To vindicate the continued existence of this Judg-made rule, it is incumbent upon
those who seek its retention--and surely its extension— to demonstrate that it serves
its declared deterrent purpose and to show that the results outweigh the rule* s
heavy costs to rational enforcement of the Criminal Law. (See,e.g. ffirJlPP.qrh v.
IZniJ^L^£a££S,5l The burden rightly rests upon those who ask society to ignore
trustworthy eMdence of guilts, at expense of setting obviously guilty criminals free to
ply their trade. 52
In United States of Jtoerica all evidence obtained
by law enforcement officer by searches and seizures in
violation of Fourth Amendment of American Constitution :
is inadmissible in evidence in federal as well as
State Courts as held in Mapp v. Oh jo. Subsequent Court
decisions have somekhat pinched back application of the
rule as in Stone v.Powel 1 discussed above, or simply
refused to extend it further as indicated in Calandra and Janis cases. It is also
important to note that Mapp did not
bind the states to follow all interpretation of the
federal judiciary in the area of criminal procedure but
only those rulings which stemmed from Constitutional
guarantees. Still,for all of the Burger courts prunning
Mapp itself remains good law.

Section 153 of the Code of Criminal Procedure 1973 authorises any

officer incharge of a police station without a warrant within his local
jurisdiction for the search of a place where he has reasons to believe that
there are in such place any weights,measures or instruments for weighing
which are false and to seize them and. further, to tjive information of such
seizure to the magistrate having jurisdiction.
This power of search and seizure in respect of false
weights and measures has been bestowed to an officer
incharge of a police station specifically and not to other
police officers as was held, in .Ja3&s£a£ v, Nannk QhaPfU In
this case information was given .to the Tehsildar by an
informer to the effect that there short weights were
being commonly used and an enquiry was then made by the
Sub Inspector of Police under orders from the District
Magistrate and District Superintendent of Police. Section
153 of the Code specially authorises an inspection of ..
weights and measures by the officer, incharge.of the
police station and to that extent there can be no.
59
objection to thei procedure adopted* Because under section
36 of the Code of Criminal Procedure police officers superior in rank to an
officer incharge of a police station may exercise the same powers,throughout
the local area to which they are appointed, as may.be exercised .by such
officers within the limits of his station.
Section 100 of the Code of criminal Procedure
prescribes certain requirements which are to be
complied with in conducting the searches of the premises
which are as unders
S.lOOt 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 — ' ---- '' tanner provided

(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 si
tu at e or of any other locality if no such inhabitants of the said
locality is available or is willing to be a witness to the search,to attend ard
witness the search and may issue an order in writing to them or any of them
so do do.
(5) The search shall be made in their presence
and a list of all things seised 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), list of all things
taken possession of shall be prepared, and a copy thereof shall be delivered to such
person.
(8) &ny 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 desned to have committed an
offence under section 187 of the Indian Penal Code (45 of I860) .
The section has three important aspects*
(a) The occupant of a place liable to search is required to give all reasonable
facilities to the persons authorised to conduct a search? (b) The police and others
authorised to search are armed with necessary powers for the proper and effective
execution of the search? (c) Procedures have been designed " to obtain as reliable
evidence as possible of the search and to exclude the possibility of any concoction
or malpractice of any kind".60
The provisions of the section apply to searches under a warrant and as well
as for a search without a warrantunder section 165 of this Code as far as
possible,6i
They are not applicable to the seizure made in the course of investigation under
section 157,Cr.P.C. In an investigation under section 157 the recoveries could be
proved even by the solitary evidence of the Investigating Officer if his evidence could
otherwise be believed. The evidence relating to ( such) recoveries is not similar to
that contemplated under section 103 of the Criminal Procedure Code( of 1898)
where searches are required to be made in the presence of two or more inhabitants
of the locality in which the place to be searched is situ ate. 5 2
But on the facts of a particular case the
Court may require that the recoveries must be proved by
examining the witnesses who had witnessed the recovery.
The provision contained in section 10(7) of the Prevention of Pood
Adulteration Act, 1954 is akin to the
 lav; relating to search laid down in section 100(4) of
the Cr.P.C. 1973. The provision is enacted as a safeguard
against any possible allegations of excesses or reportto
unfair means by the Pood Inspector. This being the object
it is in the interest of the prosecuting authority to
comply with the provisions of the Act,the non-compliance
of which may in some cases result in the testimony of
64
the Pood Inspector being rejected.
The provisions of section 100 Cr.P.C. do not apply to recoveries in
consequence of a statement made by an accused person in custody under section
27 of the Evidence Act. The opening words of this section make it clear that
its provisions are confined only to a search under Chapter VII. The section
refers only to search of places. It does not apply to discoveries made from, the
accused persons in consequence of statsnents made under section
of the Evidence Act as held in State v.Mukandl Lai,„
t it was no longer a secret that the police had been
ng section 27 of the Evidence %et indicriminately and
such a very strong proof of the highest standard was
uired to prove the recoveries and in case no independent
ness of the locality is joined by the investigating
cer at the time of recoveries from the house of the
cused it casts a shadow of doubt on the police version
nce the guilt against the accused is not established
as a matter of caution provisions of section 100 Cr.P.C.
ould be made applicable to recoveries under section 67
Evidence Act.
S^Efft of fhg nnl •? hp narty________________________
The persons of the search witnesses and of the
ice party must be searched before they are allowed to
er the house so that the person against whom search
being taken may not have reasonable ground for
specting that someone among the search party had planted
mething surreptitiously in his house.- The rule is that
everyone engaged in a raid must be searched to see that

there is no objectionable article upon him in the presence of each other, (iii)
There is a vital difference between section 103(1)
of the 1898 Code and its corresponding provision, section
100(4), in the Code of
1973. While under the
former,* two
or more respectable inhabitants of the locality" were
to be called to attend and witness the search,now an
alternative is available. If two or more respectable
inhabitants of the locality are not available or not
willing to attend and witness the search,such witnesses
may be called from 'any other locality*. Therefore, the
entire case law under the old Code on the consequences
of not calling the witnesses of the locality has lost
its significance. The prosecution has to show that
witnesses of the locality were not available or were
unwilling. Once that fact is established,there is no
rule attached to the calling of witnesses from any
other locality. This provision should be strictly complied
with, so as to give full assurance to the court that the

recovery is in fact true. Provisions of this section are

 intended to prevent or check the clandestine use of the
powers conferred on the officers.
The provisions of the section are mandatory,
designed to guard against possible chicanery and unfair
dealings and must be strictly complied with. Every
departure does not,however, render the search illegal.
But unless an explanation is given of the omission to
secure respectable inhabitants of the locality as
witnesses,the Court will view the evidence with deep 71
suspicion. Where they are departed from, the burden lies
on the prosecution to explain the circumstances under
which it was not possible to comply with those 72
provisions. (iv)

from where.

There are only three important stages in a search,

vi z, *
(1) that there must be some respectable persons present at the spot to
witness the search*
(2) that every process in the conduct of the search must be witnessed by
those witnesses? and
(3) that a list must be prepared which will bear the signatures of those
witnesses and of the things seized in the search.
With regard to the first stage,no authority is needed
to show that the witnesses must be in attendance before
the search actually begins. With regard to the second
stage,both the letter and the spirit of the section,namely,
the provisions that the panches are to attend,witnesses
the search and that the search shall be made in their
presence,require that the panches should actually accompany
the persons making the search and should be actual
 witnesses to the fact of the finding of the property. It is
not sufficient compliance with this section that the
panches be merely summoned and kept present outside a
building while the search is being carried on within it
and then called in to see what has been found. With regard
to the third stage,i.e., the search-list,the presumption
of validity of a search arises from the search-list which
has been signed by witnesses. There is sufficient
compliance with the provisions of the section if the
search-witnesses are present before the search began

and witnessed the search. It was held in Sujtan ffiiap, v.

State that in course of a search when certain outsiders
enter in a room wherefrom certain offending articles were
alleged to have been recovered without having their
persons searched it would undoubtedly raise doubt about
criminality of accused for possession and accused would be entitled to benefit of
doubt, <v)

calL-thfm during psa&clLJiBfi&ajJ.flnfl

It is the duty of the prosecution to see that
the witnesses are respectable inhabitants of the locality.
But it is not an inflexible rule that in cases where
the search-witnesses do not satisfv the provisions of
this section,the whole proceedings should be quashed.
Assuming that the witnesses who actually witnessed the
search were not respectable inhabitants of the locality
that circumstance would not invalidate the search. It
would only affect the weight of the evidence in support
77
of the search and the recovery, /As observed bv ©as, J,, in
 Ladm. v. ffnperor
It is with some object that the Legislature has provided safeguards and when they
are deliberately broken it is,in our opinion, not for the accused to show that they have
been prejudiced. The prejudice is,in our opinion, on the face of the record. They
should not have entered the premises without search witnesses,the object being that
it may not be in their power to smuggle articles into the house and bolster up a false
case against them.
Respectability does not connote any particular
status or wealth or anything of that kind, Any person
is entitled to claim respectability provided he is not
disreputable in any way,that is,if he is not a thief
or a criminal of some kind or a person perhaps of
80
grossly immoral habits. The intention of the Legislature
is that those persons should be chosen as witnesses
who can be reasonably relied on to secure the desired
result and in whose trustworthiness and ability towards the
carrving out of the particular duty reauired of then
confidence may be felt. A person who has been convicted
of serious crimes like forgery or robbery cannot be
described as a respectable inhabitant of the locality.
It is objectionable to be constantly calling the same person
to witness searches. As far as possible the police should
avoid utilising persons who have already act©! as search
witnesses. The fact that a person frequently acts as a
search-witness leads to the inference that he is easily
available and amenable to the police. In other words, he
is a professional search witness. But the mere fact that
a person had previously acted as a search-witness is not
enough for discrediting him. Merely being a prosecution witness in several
cases is not sufficient to deprive one
his title to respectability.
Section 100 Cr.P.C., clearly contgnplates the
esence of two respectable witnesses unconnected in any
ay with the Government and its officers. So the calling
of headman of wards who is appointed by the Commissioner
Police and has certain duties to do or of the Village
unsif and Karnsm, is not sufficient compliance with the
ovisions of this section, and the premises so searched
uld nbt be deaned to have been duly entered and searched,
as to cdve room for the presumption that the place was a

mmon ganing house. Purpose of associating respectable

ople is to avoid criticism of the conduct of the
arching officers at the stage of trial. The object of
nducting the search and seizure in the presence of
spectable inhabitants is to present planting of articles
interested parties and prevention of fabrication of
se evidence.
The case law in regard to the calling of witnesses of the locality has to be
understood in the context of the change that has been made,viz, witnesses of any
other locality also can be called if the witnesses of the locality are not available or
unwilling to attend the search.
The gist of this section is that there must be respectable
search-witnesses. The stress is on the word "respectable"

and not on the word "locality". Where the respectability

of the witnesses is not challenged,the failure or
inability of the police officer to secure search-witnesses frc
the locality is not more than an irregularity. If the witness is an independent person
not subject to the influence of the police officer who took him, his evidence would
inspire confidence of the court and cannot be
discarded merely because he came from a distant village.
A witness who was not a permanent resident of the locality
where the search was carried on,but at the time of search
he was staying there temporarily as a guest with his
relative was competent witness, 'She fact that the relative
 of the witness belonged to the Party opposite to that of
the accused would not make him an interested witness.
Similarly,the mere fact that the witnesses are taken from
another locality should not be looked upon as a fact or
militating against their respectability. Under the Code of 1898, one of the witnesses
to attend the search had been brought from a place four miles away. The challenge
to the conviction of the accused on the ground of non-compliance
of the provision was negatived because it was only an
irregularity and it had not caused any prejudice to
-
the accused. In Gnrnam Si ngh v.State of Punjab the
conviction was set aside because in the course of conductir
the search ( at the time of investigation) a person not
belonging to the locality had been taken as a witness to the
search and it had not been recorded that no independent
person of the locality was available. It is submitted
with respect that this decision is wrong and against the
principle well-settled. The accused was presented at the
police station along with the books seized,but there was
no seizure list. It was held that it was a defect in the
course of investigation and it had not caused any
miscarriage of justice and therefore, the trial of the
conviction could not be said to have been vitiated. But
it does not mean that the investigating officer can have twc
or three people accompanying him everywhere he goes for 98
searches.
When a search is organised a secret information received,it will generally not
be feasible to associate persons of locality with the raid as there will be every
likelihood of the secret information leaSing out and purpose of the raid being
frustrated in most cases. It is a
matter of common knowledge that there is a general
disinclination on the part of citizens to associate
than selves with police raids.
But except in such cases respectable persons can be
found in the neighbourhood and the police officer making
a search takes with him persons whose respectability is
questionable or who cane from a distance, it may not
be unjust! fl ed £q presume that he was prompted by a
desire to have such witnesses as would be easily persuaded

to support any story he might put forward.

The word "locality" does not mean the seme quarter
of the town as the place searched. The word is a
comprehensive one and may well include villages within
three or four miles of the village where the search is.
to be conducted. The police may experience difficulty in
finding respectable persons in the immediate vicinity. But
where respectable persons can be found in the neighbourhood
and the police officer making a search takes with him
persons whose respectability is questionable or who came
from a distant locality,the inference is that he was
prompted by a desire to have such witnesses as would be
easily persuaded to support any story which he might put
forward
Failure to call inhabitants of the locality as
witnesses is no more an irregularity. Even when the
failure to call witnesses of the locality was considered
to be an irregular! ty, the courts had held that it would
affect not the adnissibility of the evidence as to recovery,
but would only affect the weight of evidence and that it
was for the court of fact to consider the weight, (vi)

Penal Code
$hen a person called upon by an JUbkari Inspector to
attend a search under this section refused to sign the
search-list and was thereupon charged under section
187,1.P.C., with intentionally omitting to assist public
servant in the execution of his duty, it was held that the
conviction was bad, as the assistance which person is
bound,by the earlier part of section 187,1.P.C.,to render is
eiusdem generis with the various forms of assistance
referred to in the later part of the section,and that it
must have some direct personal relation to the execution
of the duty by the public officer. The signing of the list,
required by this section, is an independent duty which in
ordinary circumstances the party assisted could do for 5
himself. Sub section (8) only makes penal refusal without
reasonable cause to attend and witness a search. It does
not compel the person witnessing the search to sign the
search list also. Signing the search-list is not part of
witnessing the search and a refusal to sign the search-list

is not,therefore, an offence under section 187,1.P.C. Cvii)

of theJtoifse

The spirit of sub-section (6) is that the

'occupant* of the place searched shall be present which means that he is to be given
the option of being present and not that he is to be allowed to be present only if he
demands it. But the right of presence given by this section applies only to the
'occupant* of the place searched or some person on his behalf, and the words
'occupant of the place' are not intended to cover every person who may happen to
be in the place at the time, but they refer back to the person residing in or being in
charge of the place. Where, therefore, after the discovery of a gun and search of
thertrpersons,the accused,who were the occupants of the place,were sent out of the
room and the search was continued,it was held that there was a violation of the rule
enunciated in this section which was one not merely of technicality,but of substance,
in that it was enacted to guarantee the reality of the search and that it was an
 irregularity which made it incumbent on the court to scrutini

the evidence carefully.

seized articles
The list of all things seized in the course of the search and of the
places in which they are respectively found shall be prepared by the police
officer or other persons making the search and shall be signed by the
witnesses. It is considered highly objectionable to make the accused sign or
put his thumb impression on the
search list as held in ,Narain Rao v. State of Andhara Pradesh
Where the search memo was signed only by a police man
accompanying the Head constable and not by any independent
witnesses though they were present,the entire prosecution
9
story was held in Bkag&an»JSiiigh v. iifcal^-jifcilaj asthan as unnatural and
doubtful. Section 100 Cr.P.C. further makes it obligatory that the copy of the
list of things seized in a search shall be delivered to the occupant or his
nominee in whose presence the search has been made. Similarly, a copy of the
list of things seized from a persor on his personal search is required to be
given to such a person. This would ensure that the things seized are properly
accounted for.
(ix) Butv Qf Pro.qgcuti ori to rrall spsf^ Mi.taes.siss
The court is,bound to summon the search-witnesses if evidence of
search is material. It is not usual to call every search witness. But it is the duty
of the prosecutior to mention the nsnes of search witnesses so that the court
mav summon them if it so desires and to produce the

witness for search at the trial. In Mal^k Kha.n v. Brio er or

the Privy Council held that there would be no necessity
to call either of the witnesses to the search having regarc
to the express terms of the section 103,"(now section
100 (4) of the 1973 Code) . Putting in search-lists, signed
by the search-witnesses as part of the evidence of the
police officer is worthless,except to corroborate the
 evidence of the officer that witnesses were employed and
to show that the provisions of sub-section (1) and (2)
were complied with. If the evidence of the witnesses is
to be relied upon,they must be called and the accused
must have an opportunity of cross-examining then. The
last words in the sub-section(5) ( old 103(2) do not
11 12 negative this right. In Mohanlal v. Emperor
Beaumont,C.J.
observed?
If the police hold a panchnana, and do not offer to call the panch, an inference
may be drawn against thai frcra the fact that the panch is not submitted for
cross-examination. The putting in of a panchnsma without calling the.panch is
not only an infringement of the rules of evidence against the admission of
hearsay evidence
but it is unfair to the accused,because it enables the police to get the advantage of
evidence in corroboration without putting that evidence to the test of cross-
examination Such cross- examination might show that the panch was nothing but a
police agent, and that his evidence is worthless.
In Rgni Dans v. ILtata-Qf U.P. under the
Prevention of Food Adulteration Act,where the witnesses
ing to the taking of the sanples were not examined, 13
it was observed by S.D.Singh J:
.... but if the evidence establishes that the sample was taken from the shop of a
particular dealer,then even though no witness has been called., there is no reason
why his (Sanitary Inspector's) solitary statement may not be believed. The
prosecution is entitled to urge that the truth of the allegations which are being made
against an accused person may be judged on the basis of the evidence which is
exsmined in the case and if that evidence is satisfactory and there is no reason
whatsoever to doubt the truth thereof, then the prosecution can very well urge that
even though certain witnesses may not have been examined,the Court should record
a finding of guilty against the accused.
(x) jg^jdfrnc^ of Police Offioers and
stoqk wi -hnesses
 To utilise the same person as panch witnesses, results in a presumption that
witnesses are stock witnesses
under the thumb of the police. It was held in Ved Parkas?; v.

State that "conviction should not be based on the evidence of a person who is
proved to be stock witnesses of the police and has been going about giving evidence
in various police cases from different localities and who does not
appear to have scruples to speak the truth in the
witness box". It depends upon the facts and circumstances
of each case. There are persons who join in order to help the
police and trace real offender. It will be injustice to dub
then as stock witnesses. Lgnbardars and chowkidars are not
................................................................................................15
stock witnesses as held in Dwarka Dags v. Statfy In
- . -........................16
Bnperor v. Dipu it has been held that mukhiars and
sarpanches are respectable persons and they are appointed/
elected to these offices because of their respectability. The
law nowhere says that the testimony of the police or excise
officers necessarily be discarded unless it is corroborated
by independent witnesses. Chagla C.J. has laid down the
principles for believing police evidence in Shanker Mann v. 17
Bnpepor? "where the law makes it obligatory for a search to
take place in the presence of panches and the only evidence
on which the prosecution asks for conviction of the accused
is police evidence,the court will not ordinarilv act on that 18
evidence* The presumption that a person acts honfestly applies as much in favour of
police officer as of other persons and it is not a judicial approach to distrust and
suspect him without good grounds. Therefore, such an attitude could do neither the
credit to the magistracy,nor good to the
public. It can onlv run down the prestige of the magistracy
----- • -;............................................ 19. .
as held in flher Rp„j p EhiiZLa v. State. Supreme Court in
20
 Natlm nqh v. State held that mere fact that prosecution
witnesses are police officers is not enough to discard their
evidence, in the absence of evidence of their hostilitv to
.. . 2 1 the accused. In Jgnsa ifiatta G^utam v.
State,Supreme Court
believed the testimony of a police constable in a murder
case when there was no possibility of his developing enmity
with the accused. In an appeal against the acquittal,Punj ab
22
and Haryana High Court has held in St^.te v.Rgn Park ash that
non-jining of independent witnesses would be a suspicious
circumstance which would require the court to scrutinise
evidence with more caution and care but in no case by itself
it can warrant the discredit of the prosecution case.
However, official witnesses alone cannot foe believed,
if no independent witness has been joined.
(a) inspite of the fact that there is ample
opportunity to join them especially while conducting
23
excise raids as held in Baj Singfo v.
(b) Wot taking any witness while going on patrolling
duty as crime detection is the main purpose of
patrolling party of the Ilaqa police and they could
expect that some crime may be detected as held in
Ha£± Sjngh v. State?
<c> When a police officer takes a stock witness
25
intentionally with him as held in Plara Singh v. Skate?
(d) When in absence of non-official evidence,evidence
of officials is discr ep ant #i neon si stent and not
reliable and snacks of hostility as held in Et.ate v. 26
Ha.karn, 5j r.rrh?
Ce) When independent witness resiles and evidence of
official witnesses is discrepant and a stock-witness
 27
is joined as held, in Kundan Singh v. estate?
(f) When huge quantity is recovered, the evidence
of official witnesses is to be relied upon especially
when there is no earlier enmity between the accused
28
and official witnesses as held in Inderjit v« ,S.tat,e?
(g) When independent evidence was admittedly
available but still not joined,official evidence alone
29
rejected in FaOir Chand v. Statp of Punjab
The net result is that where police officers suddenly
come across a working still or they may come across a
person in whose possession there are incriminating
articles and they may have to seize the still or the
incriminating articles from the person of the accused.
In cases like these it would be open to. the trial court to
accept the police evidence and convict the accused if the
court is satisfied that the evidence is of a satisfactory
character and the guilt of the accused is proved.
There is again another class of cases where there is
prior information/secret information with the police and
there is sufficient time for independent witnesses to be
called and an arrest/search to be made in their presence.
In these cases the police should associate independent
respectable inhabitants of the locality as witnesses to
avoid further criticism at the stage of the trial and also
prove the recovery of incriminating articles beyond 30
reasonable doubt.
irregularity in a search and the failure to obtain a warrant would
always afford a ground for scrutiny, but if after close scrutiny,the court comes
to the conclusion that the articles were recovered from the
31
possession of the accused, the conviction would be sound.
 Where,however, it is not possible to make a search
in the presence of the panches or where property is found
without a search being made for example,where a person is
seen carrying a bottle of liquor in his hands, or where
under the law it is not obligatory to make a panchnana,it
would be open to the court to convict the accused on the
evidence of police officers alone, if after examining that
evidence carefully the court feels satisfied that it is 32
true. Where there is no evidence to prove that more
respectable witnesses or iequally respectable witnesses were
not available in the locality or that the local witnesses
were unwilling to come forward as search witnesses, a
search in which both the witnesses were from a different
locality and both were not very respectable it was held that
33
the search was illegal. Each case must be decided upon its owi
facts and circumstances and if there is the slightest
apprehension that the accused might have been the victim
of a piece of chicanery or sharp practice on the part of
any member of the raiding party, a Court of Justice must
give him the full benefit of it and set aside his 34
conviction,
35
In Radha Ki sh?n v, State of U.P. it was held that when in conducting a
search,the procedure laid down in section 100 Cr.P.C. is not strictly
followed,the evidence
discovered by the search does not thereby become inadmissible nor is the conviction
based upon such evidence illegal. The mere illegality of the search will not make
inadmissible any evidence otherwise admissible. It may only be reasonable to view
with more than ordinary caution the evidence of those persons who made the illegal
search. In this case the Supreme Court has further observed: "Even assuming that
the
36
search was illegal, the seizure of the articles is not vitiate*
A mere irregularity in conducting the search by reason of
non-compliance with the oro visions of lav/ does not vitiate
37
the trial, or make the evidence inadmissible,unless it is
shown that the irregularity caused a miscarriage of justice
38
or prejudiced the accused. If the evidence is relevant, it is
admi ssible, and the court is not concerned with how it is 39
obtained. "It matters not how you get it, if you steal it
40
even,it should foe admissible". An'irregularity in the search
or seizure may affect the weight of the evidence. That has
to be judged on a careful scrutiny of all the materials the
court has before it,but the admissibility of the evidence
41
remains unaffected."
It may be that where the provisions of sections 100 ( old section 103) and
165 of the Cr.P.C. are contravened,the search may be resisted by the person
concerned, or the court may inclined to examine carefully the evidence regarding the
•seizure. But beyond these two consequences no further
consequence ensues.
But where the provisions are contravened without
proper justification,there is the possibility of the search
and the recovery being viewed with suspicion and courts may
refuse to act upon the solitary evidence of the investigating
' 43 officer.
What is really intended by section 100 Cr.P.C. is
that it should be strictly followed to the extent it is
possible to ensure that the incriminating articles were
recovered as alleged and it leaves no room for doubt. The
reason is that it forms a material part of the evidence which
is necessary in matters of conviction for alleged possession
44
of incriminating articles. Conviction or acquittal depends
 upon the credibility of the witnesses as assessed by the
court and not on the question whether their presence on the
scene of the alleged offence was in accordance with a
45
particular legal procedure. Although the failure to comply with the provisions
regulating searches may cast doubts upon
he koaa fi de<3 of the officer conducting the search,there
nothing in law which makes the evidence relating to an
regular search inadmissible and a conviction based on
46
uch evidence is not invalid on that ground alone. If such
estimony is found by the court to be entirely reliable
here cannot be any legal impediment to the conviction 47
f the accused. Witnesses not going inside the house of
ccused but standing outside,would make the search irregular
48
ut would not affect legality of prosecution.

Section 100 Cr.P.C. in terms applies only to

earches made under the Code of Criminal Procedure. The
rovisions of this section do not apply to searches under the
49 50
ombay Prevention of Gambling Act,the Public Gambling Act,1867
51
r the U. P. Gambling Act, 1867. For the applicability to
52
ssential Commodities Act 1955,we turn to a decided case.
The provisions of this section would not be applicable,
or could they be intended to be applicable to surprise
aids,the object whereof would be frustrated if on reaching
he place attsnot is made to procure respectable persons of
53
he locality to be witnesses to the search.
The police party raided the house of the accused at
about 3 a.m. when the accused was distilling illicit liquor
inthe courtyard of the house and was actually feeding
the fire under the still. In a case such as this, if
timely warning is given to the alleged culprits of the
imepdning raid by calling respectable inhabitants from
the locality to witness the raid,the whole object of the
54
sudden raid would be completely frustrated.
But if the rules under the provision under which
search is carried out provide that the search of the
constables and the search-witnesses, should be carried out
before entering the house,the rule ought never to be
neglected, specially in view of the fact that an informer
under the Excise Act obtains a substantial rex-rard for
information leading to a conviction and there is a great
temptation for him acting in conjunction with the Dolice
55
constables, to plant excisable articles in the house.
Even if the provisions of the Code are made applicable
to a search under any other Act, such as, under section
132(13) of the Income Tax Act, 19 61, all what is intended
is that the officer concerned shall issue the necessary
warrant,keep present respectable persons of the locality
to witness the search and generally carry out the search
in the manner provided by" the Code.. But this does not imply
that the limitations prescribed by section 165 of the Code
56
are also incorporated therein.
Under Section 54 of the Mysore Excise Act, 1966, an
Excise Officer without recording the grounds of his belief
before proceeding to search a car,which he should have done,
searched and recovered bottles of liquor. The accused was
 convicted at the trial. The Supreme Court set aside the
conviction because section 54 had been violated. It observed*
"This, therefore, renders the entire search without
jurisdiction and as a logical corol 1 arv vitiates the 57
conviction. It is submitted with respect,that this reasoning is contrary to the well-
accepted principle that illegalitv in search will not vitiate the trial or
58
conviction unless prejudice to the accused is established.
The evidence of customs officer alone, to prove the
recoveries,!s enough and conviction can be based on that 59
evidence. There is no rule of law that conviction cannot
60
be based on the sole testimony of a Food Inspector. 2. SEIZURE OF PROPERTY
Where a search warrant is issued for the search of any particular thing,the
police officer or the other person making the search has been empowered to seize
such things if recovered during such search. Similarly where a police officer during
the investigation of any offence searches any place for any particular thing,he has
the power to seize such
things if recovered in the search. However, the police officer making any
search has far wider powers to seize any incriminating things other than those
specified things for which the search is made. Such powers are necessary for
the effective discharge of police functions and has been provided in section
102 of the Code of Criminal Procedure which is as follows?
r-qr tM n 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 incharge 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,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.
Maaning, nf property
In legal usage,1 property' is perhaps the most comprehensive word
which can be employed and it may signify either the subject-matter in which
rights or interests exist, or it may signify valuable rights and interests
protected by law or it may signify both. The term may have different meanings
depending on the
text in which it is used and in the manner its user 6l
ontemplated.
Where the offence committed is of criminal misconduct
as defined in section 5 (1) (e) of the Prevention of
Corruption Act, 1947,the bank account would be property
pable of being seized under section 10 2 of the Criminal 62
Procedure Code.
(b) Power of poliop to sett ?.e property
Section 10 2 Cr.P.C, gives the police very wide powers
to seize property which is alleged or suspected to have been
stolen or which may be found under circumstances which
63
create a suspicion of the commission of any offence. The Police Sub Inspector acted
rightly in seizing and detaining the lorry in view of the fact that neither the plaintiff nor
the driver tried to satisfy police Sub Inspector Shimpi that the driver had a licence
under section 9.3 of Motor Vehicle Act, 1939 or the requirements of the provisions of
sections 22 and 42 of the said Act were fulfilled by the documents,if any,which were
in possession of the driver or the plaintiff* In the circumstances,the police Sub
Inspector was justified by the powers given to him under section 129-A of the said
-Act in seizing and detaining the lorry in the
64
circumstances mentioned in section 550 ( new Section 102).
The Police Officer has no power to seize the property when
he is not making anv investigation but was only directed to
65 *
enquire and report. The section speaks of "any offence* and
s wide enough to cover offence created by the Defence
of India Rules. Rule 124 of these rules has not abrogated 66
right. The words "any offence" in this section show
mistakably that even though there may be the commission
non-cognizable offence, a police officer may seize any
67
perty found under suspicious circumstances*
The word "seize* in this section can only mean the
of. taking actual physical possession of the property
able of being so seized. The section does not appear to
template a police officer prohibiting the payment of a
t by a debtor to the accused person. As long as the
ney is in the possession of the thief and capable of
ure,it may.be open to the police officer to seize it on
ground that it was, or was suspected to be, stolen
perty,but once it passes into the hands of the debtor and
monev becomes unidentifiable,there can be no question
68
s being seized by the police officer. An order passed
a police officer directing a bank not to allow accused
withdraw money or property from his account and locker
the bank,cannot be Passed under this section and 69
st be quashed.
Where at the moment when the seizure was made there was no
investigation pending there was no charge pending, there was no information of the
commission of cognizable
offence proved to have been pending before the police
officer concerned, it was held that the seizure was illegal.
Section 10 2 of the Code relates to seizure of 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. Thus where the seized
paddy was neither alleged or suspected to have been stolen,
nor had been w found under circumstances which create
 suspicion of the commission of the offence",the provisions
of Section 550 of the old Code ( new Section 10 2) in terms
do not apply to the seized paddv and so the police could
71
not have seized the sane on the basis of that section, (c) gjeiTwr^ of goodFf under
cp fitQsaff.. Law....-
Police officers can seize property under this section only in cases where they
can investigate into the offences under the Code or-under any other law. Offences
under the Customs law are not investigated by the Police officers. Customs officers
should not, therefore, make use of a police officer to seize articles under this section
72
on suspicion or commission of an offence under such law.
Customs officer is entitled to seize articles or goods
not on the strength of search-warrants obtained from the
magistrate but they have been given power to seize the
articles or goods under the Qistems Act, 196 2. In the instant 73
case the truck was seized by the Customs Officer,which
has been alleged to have been used for transporting or
carrying the muggled goods. As such a seizure was made in
exercise of the power vested under that Act in the Customs
authorities and the vehicle was in custody of that authority
when application was given by the petitioner to the Judicial
Magistrate First Class. The Judicial Magistrate had no
authority or power to pass the order to return the vehicle
on condition of giving security and undertaking to produce tha J
74
vehicle in court whenever so ordered. <d) SHgnrp of goods tinder Essent-f

In M-Peeru Kannu v. ?tat,P of Kerala it has been held that in all eases of
seizure of vehicles,vessels and other conveyances for carriage of
commodities in contravention of any law governing the matter,the proceedings
for confiscation should be conducted and completed and orders passed within
 two months of the seizure. Simply because the particular enactment does not
insist on any time limit,it
es not mean that the authority concerned can take its own
me. If there is a stay from a competent court it goes
hout saying that the period of stay can be excluded.
according to the authority who is to conduct the inquiry
e pendency of a case before any court stands in the way
the inquiry the authority should move that court and get 76
arl fi c ati on,
In the case of seizure under the Motor Vehicle Act
ere is not provision for preparing a list. In the very
ture of things where the property is seized and not recovered
ring a search it is not possible to comply with the
ovisions of sub sections (4) and (5) of section 100 of the
iminal Procedure Code. In the case of seizure under the
otor Vehicle Act,there is no provision for preparing a list
things seized in the course of the seizure for the
vious reason that all those things are seized not
parately but as part of the vehicle itself. But it is in
e interest of the very officer or person seizing the
hicle so that he may not be open to any charge being laid
ainst him later that such officer or person takes care
prepare a list of detachable things which are ordinarily
t part of 'the vehicle and given a copy of the list to the
rson incharge of the vehicle at the time of seizure as
77
ld in Transport Commi .qwi nn^r .A.P. v. S.Sarflar AH,.

On seizing property under section 10 2, Cr.P.C. the

police officers must prepare a list of the articles seized.
He cannot detain any property without includina the sane
78
in the seizure list. The seizure of paddy,bulls and bullock-
carts is illegal as no copy of the mahazar was given and
as the mandatory provisions contained in section 102 and
103 of the Code of Criminal Procedure,have not been complied
79
with at the time of seizure. Sessions Judge ought to have
followed the ruling of the High Court which is binding on
him and should have held that the seizure was illegal. It
is binding on the subordinate Courts to follow the rulings
of the High Court unless they are clearly distinguishable
on facts or on law. Failure to do so will amount to
80
dereliction of duty.
(g) l££j£gai"ri.tv in Sfilzuxjs
It cannot be laid down as a universal preposition
of law that any irregularity in not following the procedure
under sections 102 and 103 of the Code vitiates the entire 81
proceedings.
To take an obvious example,the possession of an unlicensed gun or a stolen
property, is by itself an offence.
If the search and the seizure is not in accordance with
1 aw,it mav be open to the person accused to complain that
the seizure was never made, or that the evidence as to
seizure cannot be accepted,but once it is made out that
the weapon or the stolen property was seized from the
accused,the mere fact that the search and seizure were
82
not in accordance with law would not vitiate the seizure*
There is neither a statutory requirement nor
precedential mandate for handing over the seal used by the
police officer in the course of an investigation to a third
person forthwith* It necessarily follows therefrom that even
where it has been so done, the non-production of 'such a
witness cannot by itself af'ect the merits of the trial*
 Criminal trials ordinarily turn and must continue to do so
on the credibility and acceptability of the evidence on
record. It cannot be said that a criminal trial would
succeed or fail merely on the technicality of the delivery
of an investigation seal to a third person or the
ter' s refusal or inability to appear as a witness 83
about the same.
Mhere the shirt was seized from the accused, and was produced before the
magistrate after six days of the seizure.
The prosecution has given no explanation for the delay.
Such delay is contrary to the directions contained in
section 10 2(3) of the Code of Criminal Procedure. The
attestors of roahap-ar of recovery signed the same after
two days. One attesting witness also stated that he did not
notice whether there was anything (bloodstains) on the
shirt. In the face of such irregularities the recovery of
84
shirt cannot be made use of against the accused.
3. SEARCH BY A MAGISTRATE
-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. Under the
provisions of section 103 of the Code of Criminal
Procedure, 1973 the magistrate may instead of issuing a
35
search war rant, direct a search to be made in his presence. The practice of
magistrates than selves making searches becoming witnesses for corruption trap
eases,has,however,
been deprecated.
...........................- ........................■ • 8 6
In Shlv Bahadur Singh v. State the Supreme Court
approving the views of the Calcutta High Court in
M.C.Mittra v. State with regard to the traps by the police lai
down that there is no justification for the police
 authorities to> bring about the taking of bribe by
supplying the bribe money to the giver,the duty of the
police being to prevent crimes and not to provide the
instruments of the offence? and further that the magistrate
should not be employed by the police authorities to bear
witness, to the giving of the bribe as this practice
undermines the independence of the judiciary and lowers
its prestige in the eyes of the public.
4. CONCLUSION "WITH COHPaRATTVS PERSPECTIVE
Search warrant is generally required for conducting
search in India as well as in United States of America
and Britain, The search warrant is to be issued upon
showing of a probable cause by an impartial magistrate
not connected with the police or law enforcement agency.
The magistrate has to apply his mind to the facts stated
before him and on being satisfied about the credibility
and reliability of the information shall exercise his
judicial discretion in issuing or refusing to issue
search warrant applied for.
There are certain exception to the general rule of
the requirement of a search warrant before conducting a
search in Britain,United States of America and India. The
right of the police to sear coincidental to an arrest
has been recognised by the Supreme Court of United States 88
of America and in India statutory under the provisions of
sectionsSl and 5 2 of the Code of Criminal Procedure.
Similarly#procurement of warrant may be dispensed with in
exigent circumstances where it is impracticable for the
89
police first to obtain a warrant from the magistrate .
e exigency may be that the evidence may be removed away
the purpose of the search shall stand frustrated if
mediate search is not conducted. In United States of
merica the examples of such emergent circumstances, are
 the vehicle searches, administrative searches and sfcdp and 90
sk cases. ' In' India whenever an officer incharge of a
lice station or a police officer making an investigation
s reasonable grounds to believe that something necessary
the investigation of an offence may be found in a
rticular place and that such thing cannot be otherwise
tained without undue del ay, he may conduct the search on
s own authority under section 165 Cr.P.C.
The important difference in the procedure of
nducting search with a warrant or without a warrant is
at an Indian Police Officer must select two or more
spectable citizens of the locality or its vicinity as 91
nch witnesses to accompany him during the search
erations so as to inspire confidence in the police conduct
d also to safeguard the rights of the accused during the

arch and later for authenticating its property.

The use of these impartial panch witnesses is an economical method for a country
of limited financial resources to•prevent police chicanery, to verify the discovery of
evidence in the searched pranises and to inspire public confidence and the
involvement of the public in the active adninistration of criminal justice. These panch
witnesses should be impartial men of integrity and good moral character and not
professional panch witnesses in any way connected with the police as stock
witnesses as discussed elaborately above. Such a system of panch witnesses is not
prevalent in Engl and and United States of America where the police force is held in
high esteem and inspires confidence of the public and the courts unlike their
counterparts in India where there is a chronic distrust and lack of confidence towards
police forces.