ILLEGAL SEARCH AND SEIZURE AND ITS CONSEQUENCES

ABSTRACT

Search and seizure is a procedure under both civil law and criminal law in which the police or other authorities and their agents commence a search of a person’s property and confiscate any relevant evidence found in connection to the crime.

The search and seizure are practised to gain sufficient evidence to ensure the arrest and conviction of an offender.

Generally, in the criminal proceedings, the search and seizure procedure is utilized however in situations like tax raids, excise raids, search and seizure under the Information Technology Act, MoneyLaundering Act the procedure of search and seizure has been followed.

When a criminal defendant claims that the search and seizure were unreasonable the hearing before the presiding trial judge decided what will be suppressed or excluded from the trial. When the judge deems that a search is unreasonable then the exclusionary rule is applied by the court. The right to be free from unreasonable search and seizures is based on the principle that everyone is entitled to the right to privacy.

INTRODUCTION

Search refers to the examination of the premises of the person to look for sufficient evidence to ensure the arrest and conviction of the offender by a government officer and the Seizure means the act of confiscating any property of a person by an officer under the law which seems to be a piece of relevant evidence for the case.

The police officer can conduct a search and seizure only when a judge has issued a search warrant before that. To obtain a search warrant, the police needs to show a probable cause that a crime was committed and any relevant evidence to the crime is likely to be found in the specified place.

The essentials of a valid search warrant are –

  1. The warrant is filed by the police officer under goof faith.
  2. The warrant is based on the reliable information showing the probable cause to search
  3. The warrants issued by a neutral and detached magistrate
  4. The warrant specifies the place to be searched and items to be seized

The police may search outside the scope of the warrant only when they are protecting their safety or safety of other or they are acting to prevent the destruction of the evidence and the police may seize objects not specified in the warrant only when they are in plain view during the search.

The exceptional situations when a search warrant isn’t needed before the act of search and seizure are-

  1. Consent – If the police officers conducting search and seizure obtain the free and voluntary consent given by the person.
  2. Plain view– If the police officer is on the premises lawfully and the evidence found us in plain view.
  3. Search incident to arrest-The police officer may search and person and their immediate surroundings for weapons or other items that may hard the officer while conducting a lawful arrest.
  4. Exigent Circumstances-If the police officer believes that evidence may be destroyed or others may be placed in danger in the time to secure the warrant.
  5. Automobile Exception– An officer may search a vehicle if they have a reasonable belief that any contraband us contained inside the vehicle.
  6. Hot Pursuit– Police may enter a private dwelling and search if they are in the hot dwelling of a feeling criminal.

INDIAN LAWS

Procedure to be followed while carrying out a search are following –

  1. A valid search warrant issued by proper authority is a must forsearch. except in some circumstances.
  2. The presence of a lady officer in the search team is not negotiable.
  3. The search and seizure should normally be done after sunrise and before sunset, However, search, seizure and arrest may be carried out any time if there is court warrant or if there is an authorization from an empowered gazetted officer or if the gazetted officer himself is carrying out the same.
  4. The identity of the police officers must be disclosed by showing their identity cards and by taking the signatures of the owners on the search warrant before the search identity.
  5. Two independent and respected witnesses of the locality should be witnessing the search and seizure and their signatures should be taken on the search warrant.
  6. A Panchnama should be prepared on the spot which contains the proceedings of the search. A list of all goods, documents recovered and seized/detained should be prepared and annexed to this Panchnama
  7. After examination of the seized goods or things by the authority, the original copy of the samples is supposed to be sent to the Chemical Examiner within 72 hours through a test memo for further research.
  8. It is mandatory to prepare Form-F and to send it immediately to the respective authorities.
  9. After the search completes, the search warrant should be returned in original to the issuing authority with a report regarding the outcome of the search
  10. A copy of the Panchnama formed should be given to the owner or the person in charge of the premises being searched under acknowledgement.

The General Provisions regarding the search and seizure proceedings under the CrPC are following:

Section 91 – Under this section, it is stated that in cases where any court or any police officer considers the production of any document or other thing to be relevant regarding the investigation of offence, then under such situation the person in whose possession or power such document or thing is believed to be is summoned.

Section 93 – Under this section, the situations in which search warrants may be issued are stated: –

  1. When the court believes that the person to whom summon or requisition has been addressed will not duly produce the said document or thing which required.
  2. When the said document or thing is in possession of any person but is not known to the court.
  3. When general search and inquiry are crucial for carrying out the inquiry, trial or other proceedings.
  4. When only a specific place or part needs to be searched and inspectedbut, in such cases,the same shall be specified in the warrant

Section 94 –Under this section, the provisions regarding the search of a place which is suspected of containing stolen property, forged documents or any objectionable article are mentioned.

Section 100-This section directs the persons residing in or being in charge of, any such place where the search is carried out should allow the officers free ingress and access to all reasonable facilities for such search.

In case of violation of the directions by the owner, the officer may proceed according to Section 47(2) of CrPC.

Section 101– When a search warrant is being executed which is of a place beyond the local jurisdiction of the court, the thing for which the search was done is found, then it shall be immediately taken before the court issuing the warrant.

The power of police in case of seizing certain property.

Under Section 102 of the Code, if any police officer suspects or alleges that any property to be stolen or found under circumstances which create suspicion that any offence is being committed then in that case, he may seize such property.

ILLEGALITIES AND CONSEQUENCES

An illegal or unreasonable search and seizure is an act by a police officer without a search warrant and without any probable cause to believe that evidence of a crime is present. If the evidence procured is without a valid search warrant and does not lie in the exception to the warrant requirement then the evidence may be subject to the exclusionary rule. The exclusionary rule prevents illegally obtained evidence from being admitted in the court of law.

The evidence which is gathered based on the illegally obtained document is known as the fruit of the poisonous tree and will be excluded.

In case of illegal entry, search, seizure or arrest without any reasonable ground of suspicion or when somebody unnecessarily seizes the property of the person on the pretence of searching and seizing for narcotic drug or when a person is arrested without any valid reason then in such cases the punishment is of up to 6 months of imprisonment or fine up to Rs 1000or both can be also levied. In cases somebody maliciously gives false information, leading to search, arrest than in such case the person giving such false information is punishable for imprisonment up to 2 years or fine up to 1000rs or both can be levied

Against an illegal search warrant one can file a writ petition under Article 226 of the Constitution to return the things seized in the illegal search and seizure and can also file trespassing charges and suit for damages against the person executing the illegal warrant.

LANDMARK CASES

In the case of V. S. Kuttan Pillai v. Ramakrishnan[1], the court held that a search of the premises occupied by the accused does not mean, compelling him to give evidence against himself and therefore does not violate Article 20(3) of the Constitution of India

The Court observed in Dinesh Auto Finance v. State[2], that a search warrant under Section 94 can be issued only by District Magistrate, Sub- Divisional Magistrate, or a Magistrate of the First Class and the person authorised to search must be a police officer above the rank of a constable.

In the case of Ramesh vs Laxmi Bai[3], it was held by the court that a son in the custody of his father is not an illegal confinement and therefore search warrant cannot be issued for the same.

In the case of State of Maharashtra vs. Tapas D. Neogy[4], it was noted that bank account is ascertained as property under section 102 of CrPC and the police officer have the power to seize the operation of such bank account in the case where assets have a direct link with the commission of the crime.

In the case of Sadhu Singh vs. State of Punjab[5], it has been stated that in search or inspection of an enclosed area, the public witness should not join, however, an attempt can be made to make them join according to the situations and in cases of reluctancy shown by the public witness to join then genuine attempts should be made.

In the case of M.P Sharma vs. Satish Chandra[6], the issue was regarding the search and seizure to be infringing the fundamental rights or not. The apex court stated that search warrants and seizures are only means of temporary interference with the right to hold premises searched and the articles seized. Hence, the court held the fact that there is no infringement of article 19 or article 20(3) of the Constitution.

CONCLUSION

The power of the procedure of search and seizure is necessary for the interest of the community and without it, the process of law enforcement officers might suffer to the detriment of public interest. The interests of the people are to be protected against the unreasonable searches and the warrants are to be issued only on a probable cause which must be shown by oath or affirmation and the warrants clearly describe the place, person or thing to be searched or seized. The search and seizure should be according to the law and there should be presence of medico- legal officers as their findings and reports are the basis of the investigation of the crime.

REFERENCES

  1. https://www.lawteacher.net/free-law-essays/constitutional-law/illegal-search-and-use-of-evidence-constitutional-law-essay.php#ftn26
  2. https://blog.ipleaders.in/search-seizure-production-of-materials-under-criminal-law/
  3. http://lawtimesjournal.in/search-and-seizure/ 

[1] 1980 SCC (1) 264

[2]1988 CriLJ 1876

[3](1998) 9 SCC 266

[4] 1997 (7) SCC 685

[5] (1997) 3 Crimes 55 (PH)

[6]1954 AIR 300

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