How a Search Is Conducted, and What May Be Seized

Sub-section (1), free ingress. Where a place liable to search is closed, any person residing in or in charge of it shall, on demand of the officer executing the warrant and on production of the warrant, allow free ingress and afford all reasonable facilities for a search.

Sub-section (2), if refused. The officer may proceed in the manner provided by section 44(2), which is the break-open provision met in [How an Arrest Is Actually Made], with its own requirement of notifying authority and purpose and demanding admittance first.

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

Sub-section (4), the witnesses. Before making a search the officer shall call upon two or more independent and respectable inhabitants of the locality in which the place is situated, or of any other locality if no such inhabitant of that locality is available or willing, to attend and witness the search, and may issue an order in writing to them to do so.

Sub-section (5), the list. The search shall be made in their presence, and a list of all things seized and of the places in which they were respectively found shall be prepared by the officer and signed by the witnesses. But no witness is required to attend Court as a witness of the search unless specially summoned.

Sub-section (6), the occupant. The occupant of the place searched, or somebody on his behalf, shall in every instance be permitted to attend during the search, and a copy of the list, signed by the witnesses, shall be delivered to him.

Sub-section (7). Where a person is searched under sub-section (3), a list of all things taken possession of shall be prepared and a copy delivered to him.

Sub-section (8), the sanction. A person who without reasonable cause refuses or neglects to attend and witness a search when called upon by an order in writing delivered or tendered to him is deemed to have committed an offence under section 222 of the Bharatiya Nyaya Sanhita, 2023.

Section 104: things found outside the jurisdiction

Where a search-warrant is executed beyond the local jurisdiction of the issuing Court and the things searched for are found, they, together with the list, shall be immediately taken before the issuing Court, unless the place is nearer to the Magistrate having jurisdiction there than to that Court, in which case they go before that Magistrate, who shall, unless there is good cause to the contrary, order them to be taken to the issuing Court.

Section 105: the recording, and it is new

The process of conducting a search of a place or taking possession of any property, article or thing under this Chapter or under section 185, including preparation of the list of all things seized and the signing of that list by witnesses, shall be recorded through any audio-video electronic means, preferably mobile phone, and the police officer shall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.

Four points, and each is worth a line.

It is mandatory. The word is "shall".

It covers the list. Not only the search but the preparation of the list and the witnesses signing it.

It extends to section 185, which is a search by a police officer during an investigation without a warrant. So the requirement is not confined to warrant searches.

The recording goes to a Magistrate without delay. It does not stay in the police station.

Section 106: the police power to seize

Sub-section (1). Any police officer may seize any property which may be alleged or suspected to have been stolen, or which is found under circumstances which create suspicion of the commission of any offence.

Sub-section (2). An officer subordinate to the officer in charge of a police station shall forthwith report the seizure to that officer.

Sub-section (3). Every officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction. Where the property cannot be conveniently transported to the Court, or there is difficulty in securing accommodation for its custody, or continued retention in police custody is not considered necessary for the investigation, he may give custody of it to any person on a bond to produce it before the Court when required and to give effect to further orders about its disposal.

The proviso. Where the property is subject to speedy and natural decay, and the person entitled to possession is unknown or absent, and its value is less than five hundred rupees, it may be sold by auction at once under the orders of the Superintendent of Police, and sections 503 and 504 apply as nearly as may be to the net proceeds.

Section 107: attachment and forfeiture of the proceeds of crime

This section is new, it is not named by MU's syllabus, and it is in the book because rule 1.3 of the house rules requires the whole Act to be covered. It is also, in practice, one of the most significant additions the Sanhita makes.

Sub-section (1). Where a police officer making an investigation has reason to believe that any property is derived or obtained, directly or indirectly, as a result of a criminal activity or from the commission of any offence, he may, with the approval of the Superintendent of Police or Commissioner of Police, apply to the Court or Magistrate exercising jurisdiction to take cognizance, commit for trial, or try the case, for attachment.

Sub-section (2). If the Court has reason to believe, whether before or after taking evidence, that the properties are proceeds of crime, it may issue a notice to show cause within fourteen days why an order of attachment should not be made.

Sub-section (3). Where the notice specifies property held by another person on his behalf, a copy goes to that other person too.

Sub-section (4). After considering the explanation and the material, and after a reasonable opportunity of being heard, the Court may pass an order of attachment over the properties found to be proceeds of crime. The proviso allows an ex parte order where the person does not appear or represent his case within the fourteen days.

Sub-section (5). Notwithstanding sub-section (2), if the Court is of opinion that issuing the notice would defeat the object of the attachment or seizure, it may pass an interim ex parte order of attachment or seizure, which stands until an order under sub-section (6).

Sub-section (6), and this is the striking part. If the Court finds the attached or seized properties to be proceeds of crime, it shall by order direct the District Magistrate to distribute them rateably to the persons who are affected by the crime.

Sub-section (7). The District Magistrate shall distribute them within sixty days, himself or through a subordinate he authorises.

Sub-section (8). If there are no claimants, or none is ascertainable, or there is a surplus, the proceeds stand forfeited to the Government.

So the ordinary destination of the proceeds of crime under this section is the victims, and the Government takes only what is left. That is a different starting point from most forfeiture law and it is the point to make about section 107 in an answer.

Sections 108 to 110: three short provisions

Section 108. Any Magistrate may direct a search to be made in his presence of any place for which he is competent to issue a search-warrant.

Section 109. Any Court may, if it thinks fit, impound any document or thing produced before it under the Sanhita.

Section 110, reciprocal arrangements regarding processes. Where a Court in the territories to which the Sanhita extends wants a summons to an accused, a warrant of arrest, a summons to produce, or a search-warrant served or executed:

(i) within the local jurisdiction of a Court in a State or area in India outside those territories, it may send it in duplicate by post or otherwise to the presiding officer of that Court, and where a summons has been so served, section 70 applies as if that presiding officer were a Magistrate in these territories; and

(ii) in a country or place outside India with which the Central Government has made arrangements, that is a contracting State, it may send it in duplicate in the form, to the Court, Judge or Magistrate, and through the authority, that the Central Government specifies by notification.

Sub-section (2) works in the other direction: where a Court here receives such a process from a Court outside these territories or from a contracting State, it causes it to be served or executed as if it were from another Court here. A warrant executed is followed by the section 82 and 83 procedure; things found on a search-warrant are dealt with under section 104; and where the process came from a contracting State, the documents or things go back through the authority the Central Government notifies.

A worked example

A Magistrate at Panvel issues a search-warrant for a godown said to hold stolen electronics.

Getting in. The officer produces the warrant and demands free ingress, section 103(1). The watchman refuses. The officer may proceed under section 44(2) by way of section 103(2), which means notifying his authority and purpose and demanding admittance before breaking anything open.

Before searching. He must call upon two or more independent and respectable inhabitants of the locality to attend and witness, and may issue a written order to them, section 103(4). If nobody in that locality is available or willing, he may call inhabitants of another locality.

During the search. It is made in their presence. The occupant or somebody on his behalf must be permitted to attend, section 103(6). The whole process, including the making of the list and the witnesses signing it, must be recorded by audio-video electronic means, preferably a mobile phone, section 105.

A man in the godown is suspected of hiding a memory card on him. He may be searched, section 103(3). A list of what is taken from him is prepared and a copy given to him, section 103(7). If it had been a woman, the search must be by another woman with strict regard to decency.

Afterwards. A list of all things seized and where each was found is prepared and signed by the witnesses, and a signed copy is delivered to the occupant, sections 103(5) and 103(6). The recording is forwarded without delay to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class, section 105.

One of the two witnesses had refused to come. He is deemed to have committed an offence under section 222 of the Bharatiya Nyaya Sanhita, section 103(8), provided the order in writing was delivered or tendered to him and he had no reasonable cause.

The godown is outside Panvel's local jurisdiction. The things found and the list are taken immediately before the issuing Court, unless the place is nearer to the local Magistrate, in which case they go to him and he orders them on, section 104.

A car in the godown is suspected to be bought with the proceeds of the thefts. The investigating officer may, with the approval of the Superintendent of Police, apply under section 107(1) for its attachment. The Court issues a fourteen day show cause notice, hears the person, and if it finds the car to be proceeds of crime, orders it attached and directs the District Magistrate to distribute the proceeds rateably among those affected by the crime within sixty days. Anything left, or property with no claimant, is forfeited to the Government.

Distinctions

What this does NOT mean

Section 103(5) does not make the search witnesses witnesses at the trial. They are not required to attend Court unless specially summoned.

Section 105 is not confined to searches under a warrant. It applies to this Chapter and to section 185, which is a search during investigation.

Section 106's proviso is not a general power to sell seized property. All three conditions must be met: speedy and natural decay, an unknown or absent owner, and a value less than five hundred rupees.

And section 107 does not forfeit the proceeds of crime to the State as a first step. Sub-section (6) sends them to the persons affected by the crime, and only the residue is forfeited.

Quick revision

• Section 102: sections 32, 72, 74, 76, 79, 80 and 81 apply to search-warrants, so a search-warrant is executable anywhere in India.
• Section 103: free ingress on demand and production of the warrant; break open under section 44(2) if refused; a person may be searched, and a woman only by a woman with strict regard to decency; two or more independent and respectable inhabitants of the locality as witnesses; search in their presence; list of things seized and where found, signed by them; the occupant may attend and gets a signed copy; a list to any person searched; refusal to witness is an offence under BNS section 222.
• Section 104: things found outside the issuing Court's jurisdiction go to that Court, or to the nearer local Magistrate, who sends them on.
• Section 105, new: the search, the seizure, the list and the signing must be recorded by audio-video electronic means, preferably mobile phone, and forwarded without delay to a District, Sub-divisional or first class Judicial Magistrate; it covers section 185 as well.
• Section 106: any police officer may seize property suspected stolen or found in suspicious circumstances; report to the officer in charge and to the Magistrate; custody may be given on a bond; perishables worth less than five hundred rupees with an unknown or absent owner may be auctioned under the Superintendent of Police's orders.
• Section 107, new: attachment of proceeds of crime on the application of the investigating officer with the approval of the Superintendent or Commissioner; fourteen day show cause; ex parte order if he does not appear, or an interim ex parte order if notice would defeat the object; on a finding, rateable distribution by the District Magistrate within sixty days to those affected; residue forfeited to Government.
• Sections 108, 109 and 110: search in the Magistrate's presence; power to impound; and reciprocal service and execution of processes within India and with contracting States.

Test yourself

1. How many witnesses must a search have, and who may they be? Two or more independent and respectable inhabitants of the locality where the place is situated, or of another locality if none there is available or willing, section 103(4).

2. What happens if a person called upon in writing refuses to witness a search? Without reasonable cause, he is deemed to have committed an offence under section 222 of the Bharatiya Nyaya Sanhita, section 103(8).

3. Must a search be video recorded? Yes. Section 105 requires the process of search and seizure, including preparation of the list and its signing by witnesses, to be recorded by audio-video electronic means, preferably a mobile phone, and the recording to be forwarded without delay to a District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.

4. Who is entitled to a copy of the search list? The occupant of the place searched, or a person on his behalf, section 103(6); and a person searched under section 103(3) gets a list of what was taken from him, section 103(7).

5. When may seized perishable property be sold at once? Where it is subject to speedy and natural decay, the person entitled to possession is unknown or absent, and its value is less than five hundred rupees, under the orders of the Superintendent of Police, proviso to section 106(3).

6. Where do the proceeds of crime go under section 107? The Court directs the District Magistrate to distribute them rateably, within sixty days, to the persons affected by the crime; only where there are no claimants, none ascertainable, or a surplus, do they stand forfeited to the Government.

7. Whose approval does an application under section 107 need? That of the Superintendent of Police or the Commissioner of Police.