Introduction
India is a country with an increased in Criminals and Crime rates. Protection of every individual from all these crimes is the duty of the Nation. Police Authorities are one of those who protect the Public from these activities. In the act of safeguarding people, the Police go through the process of Search and Seizure. Search and Seizure is a procedure by which the Police and other authority when suspect a Crime has been committed start the process of searching for the person’s property, and seize the relevant things in connection to the Crime. Many countries have provisions for search and seizure laws but some Countries feel this is unreasonable which violates their Right to Privacy. The main reason for which Search and Seizure have a provision in the Law is to get evidence for the case. The Search here includes a search of a person, place, or any belonging of a person.
These search and seizure can be done by the Police Authority, Investigation authority, or any other authority who has the power to do the act. Search and Seizure has been a known term in both Civil and Criminal Proceedings. Also, there are many other Acts in which Search and Seizure Laws are included which are the Information Technology Act, Money Laundering Act, etc. Thus, this takes many dimensions in many other Acts and provisions.
Difference
Detention and Seizure
| Detention | Seizure |
| Every detention is not a seizure. | Every seizure includes detention. |
| When goods are detained they can be released without any procedure. | They need to follow some procedures to release the goods. |
| Even if the things are bulky or light the possession of the products after detained remains with the owner. | When goods are bulky they need not carry the goods but can keep it in the safe possession of the owner. |
| Detention is the pre-existing procedure for seizure. | After detention and proper investigation products can be seized. |
Confiscation and Seizure
| Confiscation | Seizure |
| It is the taking of goods after proper investigation | It means the actual taking of goods by the authorities. |
| After proper investigation, the possession of the property is given to the government. | The possession of the article will be given to the authorized authority. |
| When a product is seized the true owner of the product can use it by availing the required permission from the authority. | Once a product has been confiscated then the possession, as well as ownership of the product, does not lie on the owner. |
Constitutional Validity
The constitution is the mother of all laws and any law implemented should be constitutionally valid. In many instances, surge and seizer laws are stated constitutionally invalid which violates the fundamental right under Article 19(1)(f) and Article 20(3). In the case of Maneka Gandhi v. Union of India[i] the Supreme Court interpreted the phrase “procedure established by law” in Article 21. This means that not only humans but the laws should also be fair and reasonable without being arbitrary. In the case M.P. Sharma and others v. Sathish Chandra, District Magistrate and others[ii] the issue was that the search warrant issued under Section 96(1) was violative of Article 19(1)(f) and Article 20(3). It was stated that the warrant issued was not violative of any of the mentioned Article and does not amount to any compelled production.
In Pooran Mal’s case[iii], it was stated that the search and seizure laws in Section 132 about the Income Tax Act 1961 and rule 112 was violative of Article 19(1)(f) or Article 19(1)(g) of the constitution. The court held that the laws are reasonable and are not violative of any fundamental right. In the case of Nandini Satpathy v P.L.Dani[iv], the Supreme Court extended the scope of Article 20(3) which states about the witnessing of a person against himself for any offence.
Right to Privacy
It is always mentioned that the search and seizure law violates the fundamental right to privacy. This is one of the reasons due to which many of the countries do not give any authority to search or seizure. In India, the search and seizure laws are included in many acts and provisions like the NPDS Act, Customs Act, Passport Act, Income Tax Act, etc. In the case of ITO v Seth Bros[v]., it was stated that Section 132 of the Income Tax Act which provides for the search and seizure does not prescribe any authority over the revenue officers. Mere power of the authority cannot take away the right and privacy of a taxpayer. The power is given to the authority concerning the law.
Rules to be followed in search and seizure cases
The union minister gave the rules for the search and seizure laws under some specific Acts like Income Tax Acts and Customs Acts, etc. Some rules provided are:
Competent Authority
The authority for search and seizure of a person or product should be done by the competent authority who has the power to do. He has to provide the reason or justify as to why he has to search. There should be a formal order that should be issued before the issue of search order the person who is given authority to search or seizure should not give reason after the exercise of such power.
The objective of the search
The objective of the search is always necessary and with no objective, it violates the privacy of the person where the search is made. The finding of any evidence should be the main objective of the search thus a search should not be any ordinary thing and should be conducted for the required purpose.
Search party
A search party is to be led by a person having authority who has a rank in case of searches. Search party should be held by an officer with the rank of assistant collector or any equivalent post. The team led by the assistant collector should consist of 2 witnesses of the locality and technical people.
Examination and report to the authority
The authority must examine the product or the person which they have searched or found in case of income tax the true owner of the product has to take an oath. The statements taken from the person by the authorities make them liable under the law. They ask for the statement from the concerned person such that they do not fabricate the fact in the future. After the examination is complete they have to send a report to the senior authority. After this, the arrest and the departmental proceedings will take place and the person will be prosecuted under the various acts for the offence.
Laws related to search and seizure
The laws about search and seizure are the same. Search and seizure are the main part of the investigation of a case. Thus the criminal procedure code gives the important provision for search and seizure. The police can do search and seizure by using a warrant under the Criminal Procedure Code.
- Section 93- When a search warrant can be issued
- Section 94- Search of place suspected
- Section 95- the power to declare publication forfeited and issue a search warrant
- Section 97- search for persons wrongfully confined
And without a warrant under
- Section 103- if without warrant magistrate may direct to search for his presence
- Section 165- guidelines regarding search by a police officer.
- Section 166- when a police officer is in charge of a police station he may require another person to issue the search warrant.
The basic provisions related to search and seizures are provided under Section 100 of the Criminal Procedure Code. Section 102 of the criminal procedure code provides for the power of the police officers to seize.
Conclusion
Police and other authorities that are entitled to maintain law and order are the main people for a vast nation like India which has a large number of crime rates daily where the majority of them unsolved. They do a lot of extensive processes to control crime rates. In this process, the search and seizure constitute a vital component of the whole investigation proceedings. It is majorly taken to find evidence for any criminal or civil actions. Many feel that the search and seizure proceedings by the authority are violative of their fundamental Right to Privacy of the citizens of our Nation. Even the courts also in some cases felt that it is violative but in many cases found this way to be an effective part of the investigation. The search and seizure do not have any particular Act rather are present in many Acts and provisions in their dimension.
Maybe this is one of the reasons for these laws to be arbitrary. Thus separate provisions have to be made for search and seizure and the authorities must be made to follow the rules such that everybody could understand that it is not an act that could enter their privacy but something which is governed by law and is reasonable.
Questions
- What is meant by search and seizure?
Search and Seizure is a procedure by which the Police and other authority when suspect a Crime has been committed start the process of searching for the person’s property, and seize the relevant things in connection to the Crime.What is the difference between Detention and seizure?
2. What is the difference between Confiscation and Seizure?
Confiscation:
(i) It is the taking of goods after proper investigation.
(ii) After proper investigation, the possession of the property is given to the government.
Seizure:
(i) It means the actual taking of goods by the authorities.
(ii) The possession of the article will be given to the authorized authority.
3. Does Seizure and Search violates the Right to Privacy in India?
In India, the search and seizure laws are included in many acts and provisions like the NPDS Act, Customs Act, Passport Act, Income Tax Act, etc. In the case of ITO v Seth Bros[v]., it was stated that Section 132 of the Income Tax Act which provides for the search and seizure does not prescribe any authority over the revenue officers. Mere power of the authority cannot take away the right and privacy of a taxpayer.
References
[i] Maneka Gandhi v. Union of India, AIR 1978 597
[ii] M.P. Sharma and Ors. v. Satish Chandra, District Magistrate, Delhi and Ors., AIR 1954 SC 300
[iii] Pooran Mal v. Director of Inspection (Investigation) [1974] 93 ITR 505 (SC)
[iv] Nandini Satpathy v. P.L.Dani, AIR 1977 SC 1025
[v] ITO v Seth Bro.,[1969] 74 ITR 836 (SC)
[vi] Vijay Kumar Singh, The Law of ‘Search and Seizure’ in India
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2972055
[vii] Search and Seizure
http://lawtimesjournal.in/search-and-seizure
[viii] Search and Seizure and the Right to Privacy in the Digital Age: A Comparison of US and India
