<%-- Page Title--%> Law In-depth <%-- End Page Title--%>
|<%-- Page Title--%> Issue No 109 <%-- End Page Title--%>||
September 21, 2003
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Police 'excesses' in search and seizure
An Englishman's home is his castle. In a landmark decision Lord Camden observed "By the law of England every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my ground without my license, but he is liable to an action though the damages be nothing." The Fourth Amendment. of the American Constitution says 'The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated.'
Article 43 of the Bangladesh Constitution guarantees the privacy of home and correspondence and says, inter alia, that- every citizen shall have the right to be secured in his home against entry, search and seizure subject to any reasonable restrictions imposed by law in the interest of state-security, public order, public morality and public health. In a recent case Indian Supreme Court held that no police officer nor any other public functionary can enter into the house of any citizen and conduct any search or seizure, seize anything unless he is duly authorised by law. Thus right to privacy of home is a fundamental right recognised in all democratic societies. It is, therefore, inviolable and can not be impaired unless under strict requirement of law. In view of the constitutional concern for protection of home from unnecessary entry by public functionaries law lays down principles seeking to circumscribe the propensity of excesses on the part of the police and to hold it back on human scale.
Section 103 of the Code provides some safeguards in terms of creditably of search such as a) before making search the officer shall call upon two or more respectable inhabitants of the locality to attend and witness the search b) the occupant of the place searched or some person on his behalf shall be permitted to attend and observe the development during the search c) list of all things seized in the course of such search and of places in which they are found shall be prepared and signed by such witnesses d) no person witnessing the search shall be compelled to attend the court as a witness unless summoned by it; e) a copy of the list prepared shall be delivered to such occupant at his request f) when any person is searched a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person at his request; g) except upon reasonable cause no one can refuse or neglect to attend the search with impunity.
PRB has formulated ten rules to be followed by a police officer conducting search amongst which the ones found uncommon with the above are a) the occupant of the house or in his absence person in charges of the house shall be given an opportunity to compare the copy of the seizure list with its original; b) no place should be searched without warrant merely because the occupier is an absconding offender; c) before commencement of search the person of every police officer, every witnesses and informer shall be examined before witnesses and the owner of the house or his representative e) law does not require a search to be made by daylight but there are advantages in searches by daylight the searching officer should apply his discretion whether daylight should be waited. It also lessens the inconvenience of the inmates of the house f) articles or weapons found at a house- search or on the person of a prisoner shall be carefully labelled and signed g) if the materials seized do not permit counting piece by piece, they should be collected and packed in bundles; must in all cases be sealed and marked by search witnesses and entered in the search list.
Dhaka Metropolitan Police Ordinance, 1976, provides for search by a police officer any person in streets suspected of being in possession of stolen property and for search and seizure of false weights and measures. It also provides for penalty for unlawful entry, vexatious search and detention by police officer.
These are obvious avenues for miscarriage of justice to the utter detriment of personal liberty of citizens and their right to protection at home guaranteed by the Constitution and unless effectively addressed possibility of innocent people being victimised is bound to go unabated.
M. Moazzam Husain is an Advocate of the Supreme Court.
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