Sections 105, 185, and 176(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a decisive shift toward transparency and technological accountability in criminal investigations, which introduce mandatory audio-video recording of searches and forensic procedures in serious offences.

A critical legal question now arises: If the police fail to video-record a search as required under the BNSS, does that lapse render the seizure illegal or the evidence inadmissible?

Section 105 BNSS – Mandatory Audio-Video Recording of Search and Seizure

Section 105 mandates that the entire process of conducting a search or seizure — including preparation of the seizure list (panchnama) and obtaining signatures of witnesses — shall be recorded through audio-video electronic means, preferably by cell phone.

The provision further requires that such recording be forwarded without delay to the District Magistrate, Sub-Divisional Magistrate, or Judicial Magistrate of the First Class.

The statutory language uses the word “shall,” indicating a mandatory obligation. Two core requirements therefore emerge:

1. The search and seizure process must be audio-video recorded.
2. The recording must be promptly forwarded to the concerned Magistrate.

The legislative intent is to institutionalize transparency and minimize allegations of planted recovery, fabricated documentation, or tampering with seized property.

A key practical question, however, is whether these recordings are consistently being forwarded to Magistrates in actual practice. While the law requires submission, non-compliance may not automatically nullify proceedings. Instead, it could invite judicial scrutiny, create doubts regarding chain of custody, and strengthen defence claims of procedural impropriety.

Importantly, Indian jurisprudence does not strictly follow the American “Fruit of the Poisonous Tree” doctrine. Courts have repeatedly held that illegality in the manner of collection does not automatically render evidence inadmissible if it is otherwise relevant. Therefore, failure to comply with Section 105 may weaken evidentiary weight but is unlikely by itself to invalidate the seizure.

Section 185 BNSS – Search by Police Officer and Reinforced Videography

Section 185 empowers the officer in charge of a police station, or a police officer conducting investigation, to carry out a search if there are reasonable grounds to believe that evidence necessary for investigation may be found in a particular place.

Before conducting the search, the officer must:

• Record in writing the grounds of belief in the case diary.
• Specify, as far as possible, the item sought.
• Conduct the search personally, if practicable.

Crucially, the proviso to Section 185 reiterates that the search shall be recorded through audio-video electronic means, preferably by mobile phone.

This repetition is not accidental. The legislature has deliberately reinforced videography as an integral component of lawful search. It strengthens documentation, protects witnesses, and preserves the authenticity of the seizure memo.

If videography is not conducted, the search may be procedurally defective. However, consistent with established legal principles, such defect may not automatically render the seized material inadmissible. Instead, courts may assess whether the lapse caused prejudice to the accused or compromised the integrity of the evidence.

Transparency in search and seizure is indispensable because it:

1. Validates documentation and witness participation.
2. Secures the chain of custody.
3. Reduces allegations of false recovery.
4. Prevents tampering by either side.

In effect, videography protects both the investigating agency and the accused.

Section 176(3) BNSS – Forensic Experts and Videography in Serious Offences

Section 176(3) introduces a major procedural reform for offences punishable with seven years or more. It mandates that the officer in charge shall:

• Cause a forensic expert to visit the crime scene.
• Ensure collection of forensic evidence.
• Cause videography of the process through a mobile phone or other electronic device.

However, the provision states that this obligation shall apply from such date as may be notified within a period of five years by the State Government.

This has created interpretational debate. The law is active, but States have been given a five-year window to notify operational implementation. Until such notification, strict enforcement may vary across jurisdictions.

Once notified, forensic assistance and videography would become mandatory in all offences punishable with seven years or more, subject to availability of facilities. Where forensic infrastructure is lacking, the State must notify use of facilities in another State.

The question whether forensic assistance is necessary in every such case will ultimately depend on notification status and judicial interpretation. However, the legislative direction is clear: serious offences must be scientifically investigated and digitally documented.

Applicability to Special Laws and Trial Realities

Search and seizure under statutes such as the CGST Act, PMLA, and NDPS Act are governed primarily by their respective provisions. However, procedural safeguards of criminal investigation often apply unless expressly excluded. Under the earlier CrPC framework, analogous safeguards were treated as broadly applicable, and similar interpretation may evolve under BNSS.

Even if procedural violations occur — whether absence of videography, delayed submission to Magistrate, or forensic lapse — Indian courts traditionally prioritize adjudication on merits. Evidence collected irregularly is rarely excluded outright unless grave constitutional violation or demonstrable prejudice is shown.

In practice, courts are unlikely to deny cognizance solely because videography was not conducted or forwarded, though such lapses may seriously affect the credibility of prosecution evidence.

What Experts Think?

Senior Advocate Dr. Sujay Kantawala

Senior Advocate Dr. Sujay Kantawala highlighting on the growing technological advancement says, “The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a sophisticated shift from the era of tea-stained panchnamas to digital accountability. In an age where we track a pizza delivery with more precision than a lunar landing, Sections 105, 176(3), and 185 finally mandate that when the State conducts a search, it must also press “record.”

By employing the term “shall,” Parliament has elevated videography from a polite suggestion to a statutory command. This “silent witness” is designed to bridge the chronic trust deficit in investigations, shielding honest officers from frivolous claims while ensuring evidence isn’t “found” in places it never was.

While a “technical glitch” might not render a seizure void ab initio, it certainly invites a raised judicial eyebrow. If an investigator cannot record a felony search in the era of 15-second lunch reels, the court will inevitably ask: Why? Under the BNSS, the camera is no longer a gadget; it is the silent guarantor of fairness”.

Senior Advocate Sonu Bhatnagar

Senior Advocate Sonu Bhatnagar says that Section 105 of the Bharatiya Nagarik Suraksha Sanhita, 2023, (“BNSS”) has brought about a radical change in the procedure to be followed during search and seizure operations, by introducing this new Section and providing for digital recording throughaudio-video electronic means. This section clearly and mandatorily provides that “The process of conducting search……shall be recorded through any audio-video electronic means preferably cell phone…….”The use of word ‘shall’ clearly indicate the legislative intent to make audio-video recording mandatory during the process of conducting search of a place or taking possession of any property, article or things under Chapter VII of BNSS or under Section 185 of BNSS.

The section further mandates that “…….the police officershall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.” This reinforces the mandatory nature of audio video recording, as the said recording is required to be forwarded without delay to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class.

 Section 105 of BNSS, is applicable to not only to Chapter VII of BNSS but also to section 185 of BNSS. Section 185 of BNSS, corresponds to Section 165 of the CrPC, which dealt with the same subject, namely search by police officers. Both provisions are largely pari materia, with a key difference introduced by the proviso to sub-section (2) of Section 185, which mandates that the search conducted under this section “shall be recorded through audio-video electronic means, preferably by mobile phone”

Keeping in mind the above provisions relating to the search, the legislative intent appears to be to introduce the use of technology in the criminal judicial process. The transformative nature of these changes are provided to bring transparency to the investigation process. The intent clearly appears to be, to ensure greater accountability in search and seizure and to improve the quality of evidence, thereby safeguarding the rights of both the accused and the victims. These changes are in line with the investigation processes already adopted by modern democracies as well as to bolsters the mandate of right to fair trial as envisaged under Article 21 of the Constitution of India.

Implications of Section 105 and Section 185 of BNSS with regards to search, seizure conducted by the Police Officer are summarised as under:

1. Mandatory audio-video recording of search and seizure proceedings: By use of the expression “shall be recorded” in Section 105 BNSS and the proviso to Section 185(2) BNSS, audio-video recording of search and seizure proceedings is mandatory and not merely directory. Non-compliance may amount to violation of a statutory safeguard specially introduced by BNSS.
2. Mandatory forwarding of recording to Magistrate: Section 105 further mandates that the police officer “shall without delay forward such recording” to the Magistrate. Further, Section 185(5) BNSS independently mandates that copies of the records prepared under Section 185(1) and 185(3) “shall forthwith, but not later than forty-eight hours, be sent to the nearest Magistrate”. This requirement will ensure prevention of post-facto manipulation or fabricated recoveries.
3. Enhanced procedural safeguards in warrantless searches: In urgent searches under Section 185 BNSS (pari materia with Section 165 CrPC), the requirement of audio-video recording and forwarding of the same within 48 hours, operates as an additional procedural safeguard and strengthens the credibility of the recovery as well as protects the accused. 

Fair Investigation: Supreme Court has consistently held that fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution.The statutory mandate under Sections 105 read with 185 of BNSS operationalises guarantee of fair investigation as an intrinsic facet of fair trial under Article 21 of the Constitution.

Senior Advocate Kaadambari Singh

The Bharatiya Nagarik Suraksha Sanhita, 2023 consciously introduces a set of structural and technological safeguards to prevent misuse or arbitrary exercise of police powers during search and seizure. By mandating contemporaneous audio-video recording of the entire search process, including preparation and attestation of the seizure list, and by requiring such recordings to be forwarded without delay to a judicial authority, the BNSS seeks to replace subjective police narratives with objectively verifiable evidence. These measures are designed not only to protect citizens against false implication, planting of evidence, or coercive practices, but also to protect honest investigating officers from unfounded allegations.

Even though the mandate of sections 105, 185 and 176(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) is quite clear, confusion may arise due to interplay of certain words used in the aforesaid provisions. Further, States have a 5-year window to notify the full implementation of this requirement, although the law is active.

The above position has led to certain interpretational issues which are:

1. Whether audio-video recording is mandatory during search?

2. Whether records created during search (audio-video recording, panchnama & seizure memo) are required to be submitted to the concerned magistrate under section 105?

3. Whether section 176(3) has been notified?

4. Whether assistance of forensic expert is necessary for every case punishable for seven years or more? where offence is

5. Whether section 176 is applicable to CGST, PMLA, NDPS Act?

In this opinion, I shall undertake interpretation of enforceability of Sections 105, 185 and 176(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) concerningmandatory audio-video recording of searches, forwarding of records to the

Magistrate, forensic involvement in serious offences, and applicability to special statutes including CGST Act, NDPS Act and PMLA.

I. STATUTORY FRAMEWORK

A. Section 105, BNSS :Audio-Video Recording of Search and Seizure

Section 105 BNSS provides:

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

This provision introduces two distinct and mandatory obligations:

1. Audio-video recording of the entire search and seizure process, expressly including preparation and attestation of the seizure list; and

2. Forwarding of such recording without delay to a Magistrate or equivalent authority.

The repeated use of the word “shall” leaves no scope for discretion. The expression “preferably” qualifies only the choice of device and does not dilute the mandatory nature of recording.The Statutory implication of the use of the word “shall” twice makes both recording and forwarding mandatory. The statute does not provide any discretion or conditionality qua recording.

B. Section 185 BNSS – Search by Police Officer

Section 185 BNSS provides:

185. (1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable groundsfor 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 in the case-diary and specifying in such writing, so far aspossible, 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 (1), shall, if practicable, conduct the search in person.

Provided that the search conducted under this section shall be recorded through audio-video electronic means preferably by mobile phone.

(3) If he is unable to conduct the search in person, 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 Sanhita as to search-warrants and the general provisions as to searches contained in section 103 shall, so far as may 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, but not later than forty-eight hours, be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate.”

A perusal of the aforesaid provision shows that Section 185(1) retains the classical safeguard of recording “reasons to believe” in writing before conducting a search.

Section 185(2) adds a significant proviso:

“Provided that the search conducted under this section shall be recorded through audio-video electronic meanspreferably by mobile phone.” Further, Section 185(5) mandates that copies of the written record prepared under this section shall be sent to the nearest Magistrate empowered to take cognisance within 48 hours.

Thus, under BNSS, two parallel accountability channels exist:

• forwarding of audio-video recording under Section 105; and

• forwarding of written records under Section 185(5).C. Section 176(3) BNSS – Forensic Mandate

Section 176(3) further provides:

176(3) “On receipt of every information relating to the commission of an offence which is made punishable for seven years or more, the officer in charge of a police station shall, from such date, as may be notified within a period of five years by the State Government in this regard, cause the forensics expert to visit the crimes scene to collect forensic evidence in the offence and also cause videography of the process on mobile phone or any other electronic device:

Provided that where forensics facility is not available in respect of any such offence, the State Government shall, until the facility in respect of that matter is developed or made in the State, notify the utilisation of such facility of any other State.”

In this provision, the legislature has consciously deferred enforceability until a State Government notifies the commencement date, recognising infrastructural constraints.

She concluded by stating that the legislative mandate is clear that search safeguards enacted to protect liberty, specifically audio-video recording of searches and forwarding the same to the magistrate within 48 hours, as provided under Sections 105 and 185 BNSS are mandatory.

The audio-video recording must mandatorily be forwarded to the Magistrate under Section 105. The written records comprising reasons for search, orders must also be forwarded under Section 185(5). In its various earlier judicial pronouncements under the earlier statutory regime of CrPC, the Supreme Court of India in D.K. Basu v. State of West Bengal (1997) 1 SCC 416 and various other judgements, had recognised documentation and transparency as constitutional safeguards against abuse of police power. Section 105 BNSS statutorily embeds this principle by requiring judicial oversight by making provisions for forwarding of recordings.

Regarding consequence of non-compliance with Section 105, while non-compliance does not automatically nullify proceedings, but it seriously undermines the credibility of the search, invites adverse inference, and may vitiate prosecutions which are dependent solely on recovery. As held in earlier judicial pronouncements (although in the context of the CrPC (now repealed), i.e. Pooran Mal v. Director of Inspection (Investigation) (1974) 1 SCC 345 (para 24):“If the search is illegal, it will not vitiate the evidence collected during such search, but the court has to be cautious and circumspect in evaluating such evidence.”Section 176(3) legislatively codifies the judicial recognition of forensic primacy, however, the said provision becomes enforceable only upon State notification.

Until such notification, the obligation is not legally operative. Once notified, forensic assistance will be required in every offence punishable with seven years or more, however, this is subject further to the proviso requiring a further notification of inter-State forensic support.Therefore, the express requirement of notification makes enforceability conditional to the extent of such notification, unlike Section 105.

With regard to the issue whether the five-year window is applicable to Central Governmentor not, she was of the opinion that there is no categorical statutory basis to exclude Central agencies as the statute expressly refers to State Government notifications only. It means 5 year window is not applicable to Central Govt. Thus, applicability will depend on territorial jurisdiction, governing special statute, and whether the investigating agency is exercising police powers under BNSS. A blanket exclusion of the Central Government is legally unsustainable without clarificatory rules or judicial interpretation.

Regarding applicability to CGST, NDPS Act and PMLA:

To understand this segment we have to look at Section 4 of the BNSS (corresponding to Section 4 of the old CrPC) which specifies that all offences under any other law (special laws) shall be investigated, inquired into, and tried according to the BNSS, but subject to any enactment for the time being in force regulating the manner or place of investigating. The aforesaid provision has been given a distinct clarification under Section 5 of BNSS which states that BNSS shall not stand in the way of operation of special laws.

The conjoint reading of Section 4 and 5 of BNSS makes it clear that if a special statute (like PMLA or CGST) prescribes a specific procedure for search and seizure, that specific procedure prevails over the general procedure in BNSS. If there is no inconsistency, a procedural assistance can be resorted to provisions under BNSS and such provisions are only expected to be supplementary to the provisions of special statute, leaving no doubt over the precedence of special statutes over general law. Sections of the BNSS may apply, unless specifically excluded, if the field is not covered in any manner by the special law.2. CGST Act vs. BNSS

The Conflict: Section 67(10) of the CGST Act states that the provisions of the Code (now BNSS) relating to search and seizure shall, so far as may be, apply. However, CGST has its own internal hierarchy for reporting.

2.1 In the event of an inconsistency regarding who the records are sent to, the CGST

Act overrides.

2.2 The CGST Act is a special, self-contained fiscal statute. While the manner of search (videography under Section 105 BNSS) can be harmonized because it doesn’t contradict the CGST Act, the forwarding of the recording to a Magistrate under Section 105 BNSS may be seen as inconsistent with the CGST’s internal departmental reporting obligations.

Hence Courts are likely to mandate the videography (as a safeguard for the citizen) but may allow the reporting to follow the CGST chain rather than the Magistrate, unless the search is conducted by a Police Officer assisting the GST authorities.

3. NDPS Act vs. BNSS

3.1 The Conflict: Section 51 of the NDPS Act explicitly incorporates the provisions of the Code (BNSS) insofar as they are “not inconsistent” with the NDPS Act.

3.2 Who Wins? There is no major inconsistency here; therefore, BNSS Section 105 applies in full.

3.3 The NDPS Act does not have a specific provision forbidding audio-video recording. In fact, the Supreme Court has historically pushed for videography in NDPS cases to prevent the “planting” of drugs.

3.4 Since Section 105 BNSS enhances the right to a fair trial without contradicting any specific bar in the NDPS Act, the safeguards of recording and forwarding to a Magistrate are mandatory for NDPS searches.

4. PMLA vs. BNSS

The Conflict: The PMLA is a “complete code” in itself. Section 17 (Search and Seizure) and Section 18 (Search of Persons) of the PMLA, read with the PMLA (Forms, Search and Seizure, etc.) Rules, 2005, provide a rigorous internal mechanism for reporting to the Adjudicating Authority (not a Magistrate).

i. The PMLA, being a special enactment overrides the BNSS.ii. In Vijay Madanlal Choudhary v. Union of India (2023) 12 SCC 1, the Supreme Court held that PMLA is a special statute with its own unique safeguards. Section 71 of the PMLA contains a specific non-obstante Clause, stating the Act has effect notwithstanding anything inconsistent in any other law.

iii. While Section 71 of the Act contains a non-obstante clause giving the Act an overriding effect (notwithstanding anything inconsistent in any other law), Section 65 of the Act specifically makes the provisions of CrPC, now substituted with BNSS, applicable to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under the 2002 Act, to the extent they are not inconsistent. Thus, the overriding effect of Section 71 has to be interpreted keeping in mind Section 65 of the Act. [V. Senthil Balaji v State, (2024) 3 SCC 51]

iv. If the PMLA Rules do not mandate forwarding a video to a Magistrate, the Enforcement Directorate (ED) is not bound by Section 105 BNSS to do so. They must follow the PMLA’s requirement of forwarding the sealed record to the

Adjudicating Authority. However, failing to record a video at all might still be challenged under “due process,” but the procedural destination of that record remains governed by PMLA.

Advocate Govind Dixit

Advocate Govind Dixit states that Section 105 of the BNSS prescribes that the entire process of conducting a search must be video recorded, preferably through a mobile phone. The audio – video recording must be forwarded to the magistrate immediately to bring about efficiency and transparency in the process. Electronic evidence has become necessary to irrefutably establish the guilt of the accused person to expedite trials. Seizure of incriminating evidence, be it documents or goods too is to be recorded. Audio-video recording is mandatory. Submission of audio-video recording along with Panchnama and Seizure Memo have to be compulsorily submitted to the Magistrate at the earliest possible. Evidence gathered during the search is legally collected as long as the whole process is recorded in the presence of two independent witnesses. Section 176 is applicable to CGST, PMLA and NDPS Act. Clarified by the Radhika Agarwal judgment of the Supreme Court. Evidence gathered of an associated offence too having been committed is denied if the seizure is conducted illegally.

CA Ashu Dalmia

CA Ashu Dalmia says, “Section 105 BNSS represents a paradigm shift in the Indian criminal process: from paper-only seizure lists and testimony-dependent accounts to authenticated, time-stamped digital records that enhance transparency, protect rights, and strengthen judicial scrutiny. Its mandatory nature underscores a legislative commitment to accountability in police investigations. The emerging legal landscape suggests that videography of searches is fast becoming not merely a statutory requirement but a constitutional expectation of fairness.“

“The criminal process in India is no longer insulated from technological accountability. Section 105 ensures that search powers, among the most intrusive powers of the State, are exercised under the gaze of digital transparency and judicial oversight. As courts continue to enforce Section 105 and its implementing rules, law enforcement must adapt operationally to meet these norms. Proper implementation will not only bolster prosecution credibility but also protect citizens from false allegations and procedural abuses. In CGST, PMLA, and NDPS prosecutions, adherence could shape recovery validity, case viability, bail outcomes, and conviction integrity. India’s criminal process now demands technological oversight for intrusive state powers. In this sense, Section 105 is more than a procedural provision; it is a foundational trust-building measure in India’s evolving justice system“, he added.

Special Public Procecutor Lakshya Kumar Singh

Special Public Procecutor Lakshya Kumar Singh states that as per Under the provisions of Section 105 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, a statutory requirement has been introduced mandating audio and video recording during the conduct of search and seizure proceedings.

Under the GST Act, particularly Section 67, there are specific provisions governing search and seizure by GST authorities. However, while exercising powers under Section 67 of the GST Act, GST officers are also required to keep in mind and comply with the provisions of Section 105 of the BNSS, 2023.

Accordingly, during any search conducted at the premises of an accused person, company, or firm, the officers must ensure that the entire search and seizure process is recorded through audio and video means. This includes:

• Recording the process of conducting the search;
• Recording the seizure of any goods, documents, or articles;
• Recording the preparation of documents such as the panchnama and visit notes;
• Recording the entire procedure followed at the time of taking possession of any item.

For this purpose, officers may also use mobile phones or other electronic devices to carry out the audio-video recording.

Further, the recorded material must be forwarded without delay: If the search is conducted by a police officer, the recording must be sent to the District Magistrate (DM), Sub-Divisional Magistrate (SDM), or Judicial Magistrate. If the search is conducted by GST or Customs officers, the recording must be forwarded to their superior authority.

Thus, while carrying out search and seizure operations under Section 67 of the GST Act, GST officers are required to comply with the procedural safeguards under Section 105 of the BNSS, including mandatory audio-video recording.

The objective of this requirement is to ensure that the actions taken by police officers or GST officers during the search and seizure can be justified in judicial proceedings.

Advocate Ankit Jawaria

As per Advocate Ankit Jawaria, it is very essential to get audio video recording during the search procedure to prove that the proceeding is fair and according to requirement of law because of after the investigation and during the trial without any video evidence of search procedure it is not reliable and transparent and may challenge at any stage so ignoring the guideline under this provision means a lack of law and failure in search.

He says, officer in charge after recording the grounds of his belief that search is necessary for an investigation shall be recorded through audio-video electronic means preferably by mobile phone and copies of any record submitted to the jurisdictional or nearest magistrate within forty eight hours so it is legal requirement of this provision to follow audio video recording during search and absence of any recording the all search procedure may invalid and illegal in eye of law.

As per section 57 of BSA video recording is primary electronics evidence in any trial and legal dispute so it is very important to collect video evidence during investigation & search and without collecting and recording through digital device all preceding may be challenged and may be illegal and invalid.

Significant Case Laws

Shafhi Mohammad v. State of Himachal Pradesh (2018) – Supreme Court

Issue: Admissibility of electronic evidence and requirement of Section 65B certificate under the Evidence Act.

Summary:
The Supreme Court held that electronic evidence such as video recordings can be relied upon even if a Section 65B certificate is not produced by a party who does not have control over the device. The Court emphasized that modern technology should be embraced in criminal investigations and that procedural technicalities should not defeat justice. It highlighted the importance of videography in ensuring fairness and transparency in investigations.

Relevance to Section 105 BNSS:
Supports mandatory videography during searches and strengthens the evidentiary value of audio-video recordings.

BUY NOW : E-COMPILATION Litigation Guide on Evidentiary Value of Electronic Evidence Including WhatsApp Chats (HEADNOTE HYPERLINKED WITH JUDGEMENT COPY)

Radhika Agarwal v. Union of India (2025) – Supreme Court

Issue: Validity and procedural safeguards in GST search, summons, and arrest powers under Section 67 CGST Act.

Summary:
The Supreme Court examined the exercise of coercive powers under the GST regime and emphasized strict adherence to statutory safeguards and constitutional protections under Articles 14 and 21. The Court stressed that fiscal investigations must not violate due process or fairness principles.

Para 50 of Judgement states that : the ratio on the applicability of the Code to the Customs Act would equally apply to the GST Acts in view of Sections 4 and 5 of the Code. Sub-section (10) to Section 67 of the GST Acts postulates that the provisions of the Code relating to search and seizure shall, as far as may be, apply to search and seizure under the GST Acts, subject to the modification that for the purpose of sub-section (5) to Section 165 of the Code, the word ‘Magistrate’ shall be substituted with the word ‘Commissioner’. Section 69, which deals with the power of arrest, a provision which we will refer to subsequently, also deals with the provisions of the Code when the person arrested for any offence under the GST Acts is produced before a Magistrate. It also deals with the power of the authorised officers to release an arrested person on bail in case of non-cognizable and bailable offence, having the same power and subject to the same provisions as applicable to an officer in charge of a police station. The GST Acts are not a complete code when it comes to the provisions of search and seizure, and arrest, for the provisions of the Code would equally apply when they are not expressly or impliedly excluded by provisions of the GST Acts.

Relevance to Section 105 BNSS in GST Searches:
Strengthens the argument that mandatory videography enhances transparency and protects against allegations of coercion or procedural abuse in GST searches.

BUY NOW : E-Compilation On GST Searches: Case Laws In Favour And Against the Department (HEADNOTE HYPERLINKED WITH JUDGEMENT COPY)

Anil Kumar Hajelay (2024) – Delhi High Court

Issue: Infrastructure readiness for implementation of BNSS provisions, including hybrid courts and audio-video mechanisms.

Summary:
The Delhi High Court directed the Government of NCT Delhi to expedite the development of hybrid court infrastructure in view of the new criminal laws, including BNSS. The Court recognized the necessity of audio-video integration to ensure fair trials and effective implementation of Section 105 BNSS.

Relevance to Section 105 BNSS:
Reinforces the practical and institutional obligation to operationalize videography requirements.

Choodamani Parameshwaran Iyer

(Criminal Appeal Nos. of 2023 arising out of SLP (Crl.) No. 4212–4213 of 2019)
Court: Supreme Court of India

Summary:
The Supreme Court examined provisions of the CGST Act, particularly Sections 132 and 67(10). It observed that most offences under Section 132 are non-cognizable and bailable (except clauses (a) to (d)). The Court also highlighted that Section 67(10) incorporates CrPC provisions relating to search and seizure (with modification substituting “Commissioner” for “Magistrate”).

Key Principle: Criminal procedure safeguards apply to GST searches through statutory incorporation.

Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver

(Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver, 9 August 1967)
Court: Supreme Court of India

Summary:
The Supreme Court held that safeguards under Section 165 CrPC must be followed during searches. Since procedural safeguards were not complied with in that case, the Court directed that materials seized in a defective search must be returned.

Key Principle: Non-compliance with statutory search safeguards renders the search illegal.

Fedders Lloyd Corporation (P.) Ltd. v. B.A. Lakshminarayana Swami

(Fedders Lloyd Corporation (P.) Ltd. v. B.A. Lakshminarayana Swami, 22 February 1968)
Court: Delhi High Court

Summary:
The Court emphasized that Section 165(5) CrPC requires records of search to be sent forthwith to the nearest Magistrate. This requirement is an important safeguard against arbitrary or roving searches. Failure to forward records renders the search irregular in law.

Key Principle: Immediate submission of search records to a Magistrate is a mandatory safeguard.

Charuben D/o Dayanand Bhatia v. State of Gujarat

(Charuben D/o Dayanand Bhatia v. State of Gujarat)
Court: Gujarat High Court

Summary:
The Gujarat High Court reiterated that Section 165(5) CrPC mandates that copies of search records be sent to the nearest Magistrate. Additionally, the owner or occupier of the searched premises is entitled to obtain copies from the Magistrate.

Key Principle: Forwarding search records protects both judicial oversight and individual rights.

Suresh Nanda Versus CBI

(Suresh Nanda v. CBI, 24 January 2008)
Court: Supreme Court of India

Summary:
The Supreme Court clarified that Section 165 CrPC concerns records prepared during a search (under sub-sections (1) and (3)), not the seizure of items like passports themselves. The provision relates specifically to forwarding records of search, not the seized property.

Key Principle: Section 165 safeguards apply to procedural records of search, not automatically to every seized item.

New Swadeshi Mills of Ahmedabad Ltd. v. S.K. Rattan & Ors.

(The New Swadeshi Mills of Ahmedabad Ltd. v. S.K. Rattan & Ors., 13 October 1967)
Court: Gujarat High Court

Summary:
The Court observed that Section 165 CrPC incorporates multiple safeguards to protect private rights during search operations. Sub-section (5) adds an additional layer of protection by requiring prompt forwarding of records to a Magistrate and enabling the occupier to obtain copies.

Key Principle: Search provisions must be strictly followed to protect individual liberty and property rights.

Conclusion

Section 105 of the Bharatiya Nagarik Suraksha Sanhita, 2023, read with Section 185, marks a decisive shift in India’s criminal procedure by mandating that search and seizure proceedings “shall” be recorded through audio-video electronic means, preferably by mobile phone, and that such recordings be forwarded without delay to the Magistrate or competent authority, thereby transforming videography from a procedural formality into a statutory and constitutional safeguard.

By introducing compulsory digital recording and time-bound forwarding requirements, the law strengthens transparency, prevents post-facto manipulation, protects honest officers from unfounded allegations, safeguards accused persons from fabricated recoveries, and enhances the evidentiary credibility of seizures under statutes such as the CGST Act, PMLA, and NDPS Act. In warrantless searches, particularly under Section 185 (pari materia with Section 165 CrPC), this requirement operates as an additional procedural check, reinforcing judicial oversight and accountability at the earliest stage of investigation.

Supported by judicial recognition of electronic evidence and the constitutional guarantee of fair investigation and fair trial under Article 21, and reinforced by the evidentiary framework under the Bharatiya Sakshya Adhiniyam, the provision reflects a broader legislative intent to align India’s criminal justice system with technological accountability adopted in modern democracies.

While minor technical lapses may not automatically vitiate proceedings in every case, non-compliance with mandatory videography invites strict judicial scrutiny and may undermine the validity of recoveries, admissibility of evidence, bail considerations, and ultimately the sustainability of convictions. Section 105 therefore represents not merely a procedural reform but a structural recalibration of intrusive state powers, ensuring that the exercise of search and seizure authority is transparent, auditable, and consistent with the evolving constitutional standards of fairness in the digital age.

This article has been attempted under the supervision of Advocate Rakesh Chitkara.