Searching Persons

In one line

Sections 100 to 103 let a customs officer search a person suspected of carrying smuggled goods on or in his body, subject to safeguards. Precisely: section 100 permits search of a person entering or leaving India or in a customs area; section 101 permits search elsewhere for specified goods, on the authority of a senior officer; section 102 gives the person the right to be taken before a gazetted officer or a magistrate; and section 103 governs screening or X-ray of a person suspected of having secreted goods inside his body.

Why a power to search the person is needed and why it is constrained

Because the most valuable smuggled goods travel on people. Gold, diamonds, currency and narcotics are compact and high in value, and a passenger's body and clothing are the last place goods can be concealed after every documentary control has been passed.

But a search of the person is the most intrusive power in the Act. It engages Article 21, and, in the case of an internal search, bodily integrity in the most direct way. The Act therefore does three things: it confines the power by place and by authorisation, it gives the person a right to have the search supervised, and it puts an internal search under a magistrate.

The structure to notice, and it is the answer to most questions on this topic, is that the intrusiveness of the power and the level of authorisation rise together. A search at an airport needs only reason to believe; a search elsewhere needs a senior officer's authorisation; an X-ray needs a magistrate.

The provisions

Section 100, power to search suspected persons entering or leaving India, etc. If the proper officer has reason to believe that any person to whom this section applies has secreted about his person any goods liable to confiscation or any documents relating thereto, he may search that person.

Section 100(2) lists the persons to whom the section applies:

(a) any person who has landed from or is about to board, or is on board any vessel within the Indian customs waters;

(b) any person who has landed from or is about to board, or is on board a foreign-going aircraft;

(c) any person who has got out of, or is about to get into, or is in, a vehicle, which has arrived from, or is to proceed to any place outside India;

(d) any person not included in clauses (a), (b) or (c) who has entered or is about to leave India;

(e) any person in a customs area.

Section 101, power to search suspected persons in certain other cases. Without prejudice to section 100, if an officer of customs empowered in this behalf by general or special order of the Principal Commissioner or Commissioner of Customs has reason to believe that any person has secreted about his person goods of the description specified in sub-section (2), which are liable to confiscation, or documents relating thereto, he may search that person.