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September 21, 2003 

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Police 'excesses' in search and seizure

M.Moazzam Husain

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.

Search of persons
General provision for search and seizure are provided in chapter VII and in Sections 165 and 166 of the Code of Criminal Procedure( the Code), illustrated by the Police Regulation of Bengal, 1943, (PRB). Search may be of places or of persons. Law is a bit relaxed in respect of search of persons as persons may be required to be searched in exigent situations admitting of no time for authority to be obtained from court. Section 51 of the Code provides, inter alia, that a person arrested may be searched and all the articles found upon him may be taken into safe custody. Section 53 empowers the police to seize offensive weapons from any person arrested in the similar way. It follows therefore, that a person suspected of being in possession of articles for the possession of which he is liable to be arrested without warrant may be arrested and searched and the search should be made in between the arrest and putting him into lock-up. In case of a person searched prior to his being arrested is not provided for in the Code. Section 52 provides that a women must be searched by another woman , with strict regard to decency. Sections 47 and 48 of the Code empowers the police to enter into the house in which the accused to be arrested is believed to have taken refuge and to arrest him subject to intimation given to the residents. If ingress is refused police is empowered to effect an entrance by breaking open the door or window provided that if the place is an apartment in the actual occupancy of a pardanashin woman , not the person to be arrested, she shall be given an opportunity to withdraw from there.

Search of places
Search of places must be under search warrant issued by a competent court. Section 96 of the Code says, amongst others, that the court may specify in the search warrant the particular place or part thereof to which only the search or inspection shall extend and if so specified search shall be strictly limited to terms of the search warrant. Section 98 provides for house-search under search warrant. Search of places without search warrant is illegal except under the justification provided in Section 165 of the Code. The substance of Section 165 is that if a police officer has reason to believe that anything necessary for the purpose of investigation is lying in a place and the time to be consumed in obtaining search warrant from court is likely to defeat the purpose of search may search for such thing without search warrant. While empowering police to search a place without warrant in exigent situation law has laid down certain conditions, namely, a) there must be an investigation pending b) police officer conducting investigation should search the place personally c) he must record the grounds of his belief that waiting for search warrant may defeat the purpose of the search itself d) a police officer proceeding under this section should, as far as practicable, conduct the search in person and if the authority is delegated to any other officer there must be an order in writing specifying the place to be searched and the thing for which search is to be made e) copies of the record showing justification of search without warrant and/or of the order delegating the authority of search shall forthwith be sent to the nearest Magistrate.

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.

Concluding remarks
A plain reading of the above reveals the concern of the Constitution, laws, regulations and rules for protection of the liberty of citizens and their right to be secured at home in particular. But if we see the law and reality does it produce a happy scenario? The questions that crop up are: a) how constables conduct searches into the passenger-luggage inside a bus or other transports? Are they so empowered by law? b) since law permits search of a suspect after arrest how wholesale search inside a bus or otherwise is conducted? c) is a roaming search with the hope of incidental discovery of contraband article is permitted by law? d) does an investigating officer care much about asking any respectable men to witness the search? e) before starting search does he expose himself and his accompanied forces to search by the witnesses? f) does he seize the article in a manner so as to identify the same to the satisfaction of the court during trial? g) does he care about the right of the occupant of the house to witness the search ? h) in cases of alleged seizure of heroin and its examination by chemical examiner if the identity of the substance sent for chemical examination is challenged as not being the substance seized how the bona fide of the transaction will be proved before court?

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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