The investigation, search and seizure are covered under the provisions of criminal procedure code, 1973, (‘Code’ for short) subject to any other laws in force which regulates the manner of investigation, inquiry, search, seizure and ultimate prosecution /trial. The code confers upon police officers certain powers such as power to investigate, search seizure, arrest etc. Extensive powers are conferred to the Officer in charge of a Police station. The Police officer amongst others, officer of state and union have also been entrusted with the certain powers in respect of search, seizure etc. under different statutes like Narcotic Drugs and Psychotropic Substances Act 1985 (‘NDPS’ for short), Customs Act 1962 etc. and notified accordingly.
Search & seizure can be effected by Police in two ways – with warrant issued under the provisions of sections 93,94,95 and 97 of the Code; without warrant under the provisions of sections 103,165,166 of the Code. There are certain special acts like NDPS 1985, Customs Act 1962 etc. which provides the specific provisions of search & seizure where in the provisions of the Code relating to searches shall have effect with certain modification.
Precautions
The following precautions are to be taken by the authorities during search and seizure (section 100 of the Code)-
• The free ingress and reasonable facilities to be accorded for both searches with warrant or without warrant.
• A safeguard be provided in favour of pardanashim women.
• In case of improper or unlawful obstruction, search party shall take all necessary reasonable measures to overcome such interventions if any.
• Any body found to take away stealthily any article or thing during search, the law provides personal search of the said person.
• Search is to be made in presence of two respectable witnesses.
• It is desirable to conduct search during daylight if otherwise, it needs immediate intervention on believed reasonable.
Search under tax laws
Provisions of there for search etc., in the direct and indirect tax laws. Section 132 of the Income Tax Act provides the procedure for search and seizure. Section 82 of the Finance Act, 1994 (‘service tax) provides for search and seizure. Section 82(2) adopted the procedure for search as contained in the Code. Section 67 of the Central Goods and Services Tax Act, 2017 gives the powers to officers for inspection, search and seizure. Sections 100, 101, 102 of the Customs Act provide for search of suspected persons; Section 105 of the Customs Act. provides for search of the premises; section 106 of the Customs Act provides for stopping and searching of conveyances. Section 12F of the Central Excise Act provides the procedure for search and seizure.
Purpose
In any tax administration the provisions for Inspection, Search, Seizure and Arrest are provided to protect the interest of genuine tax payers and as a deterrent for tax evasion. These provisions are also required to safeguard Government’s legitimate dues. Thus, these provisions act as a deterrent and by checking evasion provide a level playing field to genuine tax payers.
Search under NDPS Act
Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘Act’ for short) gives powers to the officers of the Department for entry, search, seizure and arrest without warrant or authorisation. Section 42 (1) of the Act provides that 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 including para-military forces or armed forces 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, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
- enter into and search any such building, conveyance or place;
- in case of resistance, break open any door and remove any obstacle to such entry;
- seize such drug or substance and all materials 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA (forfeiture of illegally acquired property) of this Act; and
- detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act.
in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector.
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 sunset and sunrise after recording the grounds of his belief.
Section 45(2) provides that an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.
In ‘Prabhulal v. Assistant Director, Directorate of Revenue Intelligence’ – AIR 2003 SUPREME COURT 4311, the Supreme Court held that an empowered Gazetted Officer has all the powers of Section 42 including power of seizure. Section 42 provides for procedure and power of entry, search seizure and arrest without warrant or authorization. An empowered officer has the power of entry into and search of any building, conveyance or place, break open door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms provided in sub-section (1) of Section 42. In case of emergent situation, these powers can also be exercised even between sunset and sunrise without obtaining a search warrant or authorization,
In ‘Shaukath Ali # Malaysia Ali, Masoud Mosavi, Nausad Attar and Kaliammal v. The State represented by the Intelligence Officer, Narcotics Control Bureau, Madurai Sub Zone, Madurai’ – Criminal Appeal (MD) Nos. 143, 174, 219 of 2018 & 309 of 2020 and Crl. MP (MD) Nos. 6311 and 5114 of 2020, the first contention raised on the side of the appellants is that the search was conducted after sunset and hence, the second proviso to section 42(1) of the NDPS Act has not been complied with and PW8 had deposed that there was growing darkness when the officers tried to nab one Veeramani the absconding accused, who ran away and the evidence of PW6 is totally contradictory and therefore, no reliance can be placed on it and further, PW4 never speaks about sunset or sunrise in his entire evidence and under section 42 of the NDPS Act, the empowered Officer cannot enter and search a private premises between sunset and sunrise without a warrant or in the absence of warrant, without recording his grounds of belief and therefore, what is relevant is the time when the Officer acting under section 42 of the Act enters into and searches the building and not the time when he starts for the search operation and further, the time of entry alone is not sufficient and the timing of search also to be taken into account and if the search is during sunset, the provisions of second proviso of section 42(1) and 42(2) of NDPS Act have to be complied with.
On the other hand, the learned Special Public Prosecutor appearing for the respondent submitted that the search did not take place after sunset and the expression ‘darkness’ used by PW1 is not the same as sunset and it can be darken even during sunrise and with the aid of Google application, it is sought to be shown that on the date of incident, the time of sunset in Sivagangai District was later than 5.30 pm and PW1 to PW3, PW6, PW8 and DW4 deposed that they reached the premises for the search before sunset and since the officers reached the premises for the search at 5.30 pm and started the search immediately and hence, the ingredients under section section 42 of the NDPS Act is complied with. Further, the learned Special Public Prosecutor submitted that for argument sake, even the search took place after sunset, if the Gazetted Officer is a member of the searching party and he is exercising his duty under section 41 of the NDPS Act, it will not affect the case of the prosecution. But in this case, the search took place prior to sunset and hence, the conditions under section 42 of NDPS Act has been complied with.
The High Court considered the expression ‘Reason to Believe’ is not synonymous with the subjective satisfaction of the officer. Courts are empowered to examine the question whether the reasons for belief have a rational connection or a relevant bearing for the function of the belief and are not extraneous or irrelevant for the purpose of the sections.
Women should not be arrested between sunset and sunrise. As far as practicable, women police officers should be associated when the person being arrested is a woman.
The Supreme Court guidelines generally advise against conducting searches, especially those involving women, between sunset and sunrise, but exceptions exist. If a search is necessary during these hours, the officer must record the reasons for believing a warrant could not be obtained in time to prevent the concealment of evidence or escape of the offender. This is explicitly stated in the NDPS Act and is also a general principle of human rights.
Section 42 of the NDPS Act specifically addresses this, requiring the recording of reasons for searches conducted after sunset and before sunrise. The Supreme Court has also emphasized that searches of women should be avoided between sunset and sunrise. If a search of a woman is absolutely necessary during these hours, it should only be done with prior permission from a judicial magistrate, and a female officer must be present.
Proviso to Section 42(1) provides that if a search is to be conducted between sunset and sunrise, the officer must record the grounds for believing that a search warrant cannot be obtained without affording an opportunity for the concealment of evidence or escape of the offender. This requirement is mandatory and non-compliance can render the prosecution case suspect and affect the legality of the search.
In ‘Gurmeet Singh S/o Harjinder Singh VS Davinder Singh, Intelligence Officer, Narcotic Control Bureau’ – Civil Appeal No. 315 of 2015, Bombay High Court, decided on 06.04.2021, the High Court observed that the search and seizure of the contraband was after sunset and before sunrise. Admittedly, no authorisation was taken from any officer as mandated by the proviso to Section 42 of the Act nor has the reason to believe been recorded, as mandated to show why such authorisation or search warrant could not be obtained. The evidence on record, in particular the evidence of PW 1 – Sanjay Kumar Sinha, clearly shows that he had prepared the information (Exhibit – 31) and that he was aware of the fact that the vehicle was to be intercepted after sunset. In fact, the secret information note itself reflects that the car was to come at the spot at about 11:00 p.m. It is not the prosecution case, that PW 1 – Sanjay Kumar Sinha asked for any search warrant or authorisation. In fact, PW 1 – Sanjay Kumar Sinha in his cross- examination has admitted that he was aware when he prepared the information note (Exhibit-31) that the said vehicle was to be intercepted after sunset; that search warrant was required for searching houses after sunset; and that he did not apply for any search warrant. He has also admitted that he was aware that the person who wants to go and search the house after sunset, has to obtain permission to search from a Gazetted Officer. He has also admitted that there were 2 Gazetted Officers at that time in the office when the said information was received. He has also admitted that he did not ask for authorisation nor did the Gazetted Officer tell that such proforma was available with him. It is thus evident, that though the Gazetted Officers were present in the office at the time when PW 1 – Sanjay Kumar Sinha received the information, their authorisation for conducting the search was not taken. Neither does the information note (Exhibit – 31) record any reason to believe, why such authorisation could not be taken, as mandated. PW 1 – Sanjay Kumar Sinha has clearly admitted that there were 2 Gazetted Officers who were present in the office when the information was received. In these circumstances, no reason is forthcoming why the authorisation/search warrant was not taken from them. The seizing officer has also admitted that the vehicle was searched after sunset and before sunrise; and that no Gazetted Officer was present during the search of the said vehicle. He has also admitted that the proforma was available in the office for house search and that neither he nor any officer applied for any search warrant or authorisation though he was aware that the vehicle was to be intercepted and searched after sunset and before sunrise. The High Court held that it is clear that there is total non-compliance of the proviso to sub-section (1) of Section 42 of the NDPS Act. The non-compliance of the said provision vitiates the trial and as such both the appeals ought to succeed only on the aforesaid premise.
Timing of Searches
If a search begins before sunset and continues after sunset, the provisions of section 42 may not apply if the officer had no reason to believe that the search would extend to the night. However, if the search is initiated after sunset, the officer must comply with the requirements of Section 42 of the Act.
Conclusion
- Searches conducted after sunset require strict adherence to Section 42 of the NDPS Act.
- Non-compliance with the mandatory provisions can lead to significant legal repercussions for the prosecution.
- The timing of the search and the presence of proper authorizations are critical factors in determining the legality of the search and seizure operations.
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