Seizure Can Make Or Mar Police Investigation
Abstract
A proper and genuine seizure in which evidences are seized according to the procedures and directions prescribed by prevailing laws and guidelines, is important in securing conviction of the accused persons in the court. Any lapse in this regard may give ample opportunity to the defense to discredit the seizure witnesses and the investigating officer during trial of the case and in acquittal of the accused persons.
It is also imperative that necessary technological knowledge is acquired by the investigating officers and help of the technical experts taken during seizure of exhibits in cyber and digital crimes including cryptocurrency crimes. There is a lot of chance of manipulation by the police officers during seizure of an exhibit in foisting false cases upon innocent people or in excluding the names of the original accused persons from a case.
The misuse of stock witnesses by the police cannot be denied totally. Seizure witnesses play an important role during trial of the case and make or mar the case by giving convincing or unreliable deposition in court. Hence, proper seizure and making accurate seizure list is the need of the hour in the interest of fair investigation of cases and for safeguarding the edifice of the criminal justice system.
Introduction
Seizure is an important part of police investigation and failure of the investigating officer to prepare a proper seizure list can vitiate the case during the trial and making the conviction of the accused persons becomes difficult. During the seizure of any incriminating article or substance during the investigation of the case.
It is sometimes seen that the date and time of seizure have been written incorrectly or the names and addresses of the witnesses to the seizure do not match the actual names and addresses of the witnesses to the seizure, or the descriptions of the seized objects were incorrectly and incompletely given, or the place of seizure was incorrectly described, or the name and designation of the investigating officer or the case number were missing, and the sections under which the case was registered were not mentioned. All these anomalies go a long way in marring the credibility of the investigation and making doubtful the role of the investigating officer suspect in the eyes of the trial judge or magistrate.
Section 102 of the CrPC authorizes a police officer to seize certain property. Pursuant to section 102 (1) of the CrPC, a police officer is authorized to seize any property which, under established circumstances, is allegedly or suspected of being stolen or which raises suspicions of the commission of an offence.
Section 102 (2) of the CrPC, stipulates that the seizure made by any subordinate officer shall be reported to the officer-in-charge of the police station under which the subordinate works.
Section 102 (3) requires a police officer performing duty pursuant to sub-section (1) of section 102 CrPC to report the seizure of property to the nearest jurisdictional magistrate. In case the property cannot be delivered to the Magistrate, he may deliver the property under bond to any person who undertakes to present the property to the court as and when required to give effect to any further order of the court concerned for its disposal.
And when the case is presented to the court for trial due to the unreliability of the seizure witnesses, the prosecution fails to convince the court of the genuineness of the seizure and the involvement of the accused persons beyond reasonable doubt because the defense raises the question of the intention of the investigating officer in the absence of independent witnesses.
The police are often accused of producing stock witnesses because in many cases they use people who have worked for them for several years as witnesses due to the reluctance of ordinary people to sign the seizure list. There are cases where many witnesses appearing in court claimed to know nothing about the seizure saying they only signed the paper as instructed by the investigating officer. In some cases, police allegedly use stock witnesses to implicate innocent people in fake cases of confiscation of arms and ammunition or Ganja or heroin or any other narcotic by planting the incriminating items to keep them in jail for a longer period, as it is difficult to obtain bail in these cases.
This usually happens due to blackmail or due to external pressure from the above. Many witnesses to the seizure in court claim during their testimony that although they signed the seizure list, they did not see where the article was seized from, which weakens the prosecution's case. In many cases, the accused party will get witnesses of the seizure to give false evidence of the seizure in court in order to save the accused persons from conviction.
It is generally seen in the court during the trial that if the seizure witnesses could be discredited and their independence and reliability effectively called into question and cast in doubt the entire case of the prosecution is weakened. It is very difficult to find witnesses to seizures in technical crimes such as crypto-crime and cybercrime. Defense counsel can effectively challenge the credibility of such witnesses by bombarding them with questions about cyber technology, crypto currency technology and his knowledge of seizure.
The investigating officer is compelled to call police witnesses as witnesses to the seizure in some cases where local or independent witnesses are not available or those who are available refuse to witness the seizure. In these cases, the testimony of police witnesses cannot be challenged in court merely because they were police witnesses, if it can be shown to the court on convincing and reliable grounds that independent witnesses were not available and the police witnesses were credible and reliable.
In Nevada Properties Private Limited through its Directory v. State of Maharashtra & Anr., 2019 SCC Online SC 1247 [Supreme Court of India, 3 Judges], the Supreme Court held that the police have no power to seize immovable property under Section 102 CrPC.
In Tahir v. State (Delhi) [(1996) 3 SCC 338, the Supreme Court held that the statement of a police officer can be relied upon as a basis for belief if it is reliable, trustworthy and as far as possible corroborated other recorded evidence.
If the credibility of the seizure witnesses can be convincingly challenged in court, the entire case may fall.
The most common mistakes a police officer make are failing to seal the package or properly label the evidence, failing to maintain the chain of custody, improperly packaging the evidence, improperly documenting where the evidence was secured, and failing to send the evidence to the crime lab address in time for examination.
Common mistakes in maintaining the chain of evidence include improperly securing the evidence, not preventing the evidence from being altered or contaminated, not controlling who is allowed to handle the evidence, and not documenting where the evidence was collected.
In many cases, many seized vehicles and other items were found to remain lying in the police station malkhana or police station premises for months on end without any steps being taken by the police to remove or dispose them of, resulting in damage to the seized property. The Supreme Court in Sunderbai Ambalal Desai v. The State of Gujarat, has directed that when property which has been the subject of an offense is seized by a police officer, it should not be kept in judicial custody or by the police at any time longer than is absolutely necessary.
A minute study of the crime scene after it has been secured against infiltration, alteration and contamination is necessary to make a proper seizure. If a crime scene is not properly monitored, evidence such as blood, hair, fingernails, fingerprints, footprints, skin cells, weapons, gunshot residue, drugs or alcohol, empty shell casings, fire accelerants, slippers, shoes, etc. and vital evidence linking the accused with a crime may be lost. Before securing evidence from the crime scene, a proper map of the crime scene should be drawn along with a photograph of the crime scene, including the photograph and location of the evidence at the crime scene and its surroundings.
He will fail to answer questions from the defense attorney and the judge during the trial, thereby jeopardizing the credibility of the entire investigative process. In such cases, it is also difficult to find the right seizure witnesses, as the layman will not understand the nature of cryptocurrency crime and investigative agencies will have to rely on technical experts present in their laboratories to stand as seizure witnesses.
The assistance of such technical persons in the preparation of the seizure list will adversely affect the independence and credibility of the investigation in the eyes of the court and the use of such witnesses in all cases is likely to make them witnesses dubious in the eyes of the law, resulting in making convictions more difficult in such cases.
A hash value provides a cryptographically secure way to verify the difference between two files and ensure that the contents of the file have not been altered or tampered with. It may be called a file footprint. The hash value of files, folders, drives, etc., where suspicious documents are stored, should always be generated and recorded in the seizure list to ensure data integrity when the drive, memory cards, computers, laptops and tablets are seized.
When producing such electronic devices in forensic science laboratories for analysis and examination, the hash value should always be reflected in the forwarding letter along with the software and algorithm used to generate such hash value.
Therefore, if the investigating officer has no idea about what a hash value is and how to generate it, he will not be able to prepare a flawless seizure list and conduct a proper investigation of a digital crime case. He will also fail to answer properly to questions put to him during trial. Similar is the case with cyber crime investigation wherein lack of knowledge of the investigating officer about the procedures of seizure may mar the investigation.
In such cases, the witnesses to the seizure cannot always be blamed as the police sometimes allegedly implicate innocent people in false cases for personal or extraneous reasons. In some cases, witnesses in court become hostile due to fear and intimidation of accused persons or their relatives and associates. Even in such cases, it will be difficult for the trial court to convict the accused persons, especially in events where the seizure of the incriminating object or substance weighs heavily on the fate of the case.
In the case of murder, if the testimony of witnesses to the seizure proves in court that the police officer did not show the witnesses the incriminating firearm or knife at the time of the seizure and they cannot identify the same in court, the prosecution will be handicapped to convince the court to secure a conviction in the case. If the seizure list is not conscientiously prepared, the case is adversely affected.
It is often seen that some people of dubious nature work with the police regularly and stay at the police station all the time and help the police officers in various jobs. The police use these persons to produce witnesses in seizure in various cases. These witnesses are called pocket or stock witnesses and in case the defense undermines the credibility of such witnesses in the trial of the case in court, the prosecution becomes doubtful.
The seizure of the incriminating object from a place which is accessible to the public then the seizure shown from the conscious and exclusive possession of the accused person is very difficult to prove in court, as proof of conscious and exclusive possession is required during the investigation of the case for conviction.
In several cases, it has been noted that the investigating police officers have named unrelated persons as witnesses to the seizure, ignoring the actual witnesses to the murder who were present at the scene to destroy the case and save the accused persons by thwarting the seizure of the incriminating articles in the murder case. In one case, it was seen that the relatives of the accused persons were made witnesses of the seizure ignoring the eyewitnesses to damage the investigation of the case.
In one case the arm was seen to have been seized from some other place, but the seizure was made at the police station, and in another the seizure was made from the banks of the river, when in fact it was seized from the park, making the whole seizure procedure doubtful.
Similarly, in the case of possession of arms and ammunition, the seizure was made by the police officer from the almirah in the room where several persons were staying, but in fact it was proved that they were seized from the waist of the accused person. Here, too, knowing and exclusive possession, on which the conviction is based, cannot be proved.
When taking a blood sample from a crime scene, if control earth is not taken from the crime scene along with the blood sample, the crime scene may be made questionable in the eyes of the trail judge by the defense.
Conclusion
If the seizure is not done properly, then it adversely affects the entire case, sometimes leading to the acquittal of the accused persons. When a defense attorney discredits seizure witnesses in front of a trial judge or a judge in court, it casts doubt on the credibility of the prosecution's case in the eyes of the court and calls into question the integrity of the entire investigation conducted by the police officer. Hence, it is imperative for the investigating officer to learn the art of seizure in order to make a perfect investigation. The help of technical experts should be taken wherever required in seizure of articles and investigation of a case.
References
Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565
A proper and genuine seizure in which evidences are seized according to the procedures and directions prescribed by prevailing laws and guidelines, is important in securing conviction of the accused persons in the court. Any lapse in this regard may give ample opportunity to the defense to discredit the seizure witnesses and the investigating officer during trial of the case and in acquittal of the accused persons.
It is also imperative that necessary technological knowledge is acquired by the investigating officers and help of the technical experts taken during seizure of exhibits in cyber and digital crimes including cryptocurrency crimes. There is a lot of chance of manipulation by the police officers during seizure of an exhibit in foisting false cases upon innocent people or in excluding the names of the original accused persons from a case.
The misuse of stock witnesses by the police cannot be denied totally. Seizure witnesses play an important role during trial of the case and make or mar the case by giving convincing or unreliable deposition in court. Hence, proper seizure and making accurate seizure list is the need of the hour in the interest of fair investigation of cases and for safeguarding the edifice of the criminal justice system.
Introduction
Seizure is an important part of police investigation and failure of the investigating officer to prepare a proper seizure list can vitiate the case during the trial and making the conviction of the accused persons becomes difficult. During the seizure of any incriminating article or substance during the investigation of the case.
It is sometimes seen that the date and time of seizure have been written incorrectly or the names and addresses of the witnesses to the seizure do not match the actual names and addresses of the witnesses to the seizure, or the descriptions of the seized objects were incorrectly and incompletely given, or the place of seizure was incorrectly described, or the name and designation of the investigating officer or the case number were missing, and the sections under which the case was registered were not mentioned. All these anomalies go a long way in marring the credibility of the investigation and making doubtful the role of the investigating officer suspect in the eyes of the trial judge or magistrate.
Seizure Procedure
The procedure followed in case of search under Section 100 CrPC should also be followed at the time of seizure.Section 102 of the CrPC authorizes a police officer to seize certain property. Pursuant to section 102 (1) of the CrPC, a police officer is authorized to seize any property which, under established circumstances, is allegedly or suspected of being stolen or which raises suspicions of the commission of an offence.
Section 102 (2) of the CrPC, stipulates that the seizure made by any subordinate officer shall be reported to the officer-in-charge of the police station under which the subordinate works.
Section 102 (3) requires a police officer performing duty pursuant to sub-section (1) of section 102 CrPC to report the seizure of property to the nearest jurisdictional magistrate. In case the property cannot be delivered to the Magistrate, he may deliver the property under bond to any person who undertakes to present the property to the court as and when required to give effect to any further order of the court concerned for its disposal.
Seizure Witness
When incriminating articles are detained in connection with any crime by the police during the course of an investigation, two witnesses to the seizure are required. While in some cases witnesses to the seizure are readily available, in other cases it is difficult to find witnesses to the seizure near the scene. In such circumstances, the investigating officers are forced to make people who know nothing about the articles to be seized as witnesses.And when the case is presented to the court for trial due to the unreliability of the seizure witnesses, the prosecution fails to convince the court of the genuineness of the seizure and the involvement of the accused persons beyond reasonable doubt because the defense raises the question of the intention of the investigating officer in the absence of independent witnesses.
The police are often accused of producing stock witnesses because in many cases they use people who have worked for them for several years as witnesses due to the reluctance of ordinary people to sign the seizure list. There are cases where many witnesses appearing in court claimed to know nothing about the seizure saying they only signed the paper as instructed by the investigating officer. In some cases, police allegedly use stock witnesses to implicate innocent people in fake cases of confiscation of arms and ammunition or Ganja or heroin or any other narcotic by planting the incriminating items to keep them in jail for a longer period, as it is difficult to obtain bail in these cases.
This usually happens due to blackmail or due to external pressure from the above. Many witnesses to the seizure in court claim during their testimony that although they signed the seizure list, they did not see where the article was seized from, which weakens the prosecution's case. In many cases, the accused party will get witnesses of the seizure to give false evidence of the seizure in court in order to save the accused persons from conviction.
It is generally seen in the court during the trial that if the seizure witnesses could be discredited and their independence and reliability effectively called into question and cast in doubt the entire case of the prosecution is weakened. It is very difficult to find witnesses to seizures in technical crimes such as crypto-crime and cybercrime. Defense counsel can effectively challenge the credibility of such witnesses by bombarding them with questions about cyber technology, crypto currency technology and his knowledge of seizure.
The investigating officer is compelled to call police witnesses as witnesses to the seizure in some cases where local or independent witnesses are not available or those who are available refuse to witness the seizure. In these cases, the testimony of police witnesses cannot be challenged in court merely because they were police witnesses, if it can be shown to the court on convincing and reliable grounds that independent witnesses were not available and the police witnesses were credible and reliable.
In Nevada Properties Private Limited through its Directory v. State of Maharashtra & Anr., 2019 SCC Online SC 1247 [Supreme Court of India, 3 Judges], the Supreme Court held that the police have no power to seize immovable property under Section 102 CrPC.
In Tahir v. State (Delhi) [(1996) 3 SCC 338, the Supreme Court held that the statement of a police officer can be relied upon as a basis for belief if it is reliable, trustworthy and as far as possible corroborated other recorded evidence.
If the credibility of the seizure witnesses can be convincingly challenged in court, the entire case may fall.
Common Mistakes in Seizures and Investigations
When a police officer collects the evidence, he should secure and properly package the evidence to prevent contamination. Failure to do so could result in inconclusive or incorrect test results and the integrity of evidence that could lead to a conviction or prove the innocence of an accused person is lost.The most common mistakes a police officer make are failing to seal the package or properly label the evidence, failing to maintain the chain of custody, improperly packaging the evidence, improperly documenting where the evidence was secured, and failing to send the evidence to the crime lab address in time for examination.
Common mistakes in maintaining the chain of evidence include improperly securing the evidence, not preventing the evidence from being altered or contaminated, not controlling who is allowed to handle the evidence, and not documenting where the evidence was collected.
In many cases, many seized vehicles and other items were found to remain lying in the police station malkhana or police station premises for months on end without any steps being taken by the police to remove or dispose them of, resulting in damage to the seized property. The Supreme Court in Sunderbai Ambalal Desai v. The State of Gujarat, has directed that when property which has been the subject of an offense is seized by a police officer, it should not be kept in judicial custody or by the police at any time longer than is absolutely necessary.
A minute study of the crime scene after it has been secured against infiltration, alteration and contamination is necessary to make a proper seizure. If a crime scene is not properly monitored, evidence such as blood, hair, fingernails, fingerprints, footprints, skin cells, weapons, gunshot residue, drugs or alcohol, empty shell casings, fire accelerants, slippers, shoes, etc. and vital evidence linking the accused with a crime may be lost. Before securing evidence from the crime scene, a proper map of the crime scene should be drawn along with a photograph of the crime scene, including the photograph and location of the evidence at the crime scene and its surroundings.
The Importance of Technological Knowledge in Seizure
Lack of proper technical knowledge on the part of the investigating officer in the investigation of cryptocurrency crime cases will derail the entire case. When investigating a cryptocurrency crime case, if the investigating officer is not aware of cryptocurrency, the anonymous and complex nature of cryptocurrency transactions, wallets, cryptocurrency exchanges, blockchain, digital evidence collection process, mixer, shapeshifter, peel chain, chain hopping, RenBridge, coinJoin, stealth address, unregulated crypto currency exchanges, fake criminal identities, money laundering, VPN, decentralized exchange, block chain analytics tools, privacy-enhanced communication and browsing, privacy-enhanced wallets, privacy coins, nested cryptocurrency exchanges, peer-to-peer crypto network, IP address, nodes, crypto ATM or crypto kiosk, gambling platform, non-fungible tokens (NFT), advanced technologies used by criminals and terrorists operating in cryptocurrency crime, cyber security risks, block chain analysis based monitoring on behavior, peer-to-peer analysis, risk-based monitoring, the use of machine learning and artificial intelligence in crypto-crime investigations, and the volatile nature of crypto currency, he will not be able to prepare a proper seizure list.He will fail to answer questions from the defense attorney and the judge during the trial, thereby jeopardizing the credibility of the entire investigative process. In such cases, it is also difficult to find the right seizure witnesses, as the layman will not understand the nature of cryptocurrency crime and investigative agencies will have to rely on technical experts present in their laboratories to stand as seizure witnesses.
The assistance of such technical persons in the preparation of the seizure list will adversely affect the independence and credibility of the investigation in the eyes of the court and the use of such witnesses in all cases is likely to make them witnesses dubious in the eyes of the law, resulting in making convictions more difficult in such cases.
A hash value provides a cryptographically secure way to verify the difference between two files and ensure that the contents of the file have not been altered or tampered with. It may be called a file footprint. The hash value of files, folders, drives, etc., where suspicious documents are stored, should always be generated and recorded in the seizure list to ensure data integrity when the drive, memory cards, computers, laptops and tablets are seized.
When producing such electronic devices in forensic science laboratories for analysis and examination, the hash value should always be reflected in the forwarding letter along with the software and algorithm used to generate such hash value.
Therefore, if the investigating officer has no idea about what a hash value is and how to generate it, he will not be able to prepare a flawless seizure list and conduct a proper investigation of a digital crime case. He will also fail to answer properly to questions put to him during trial. Similar is the case with cyber crime investigation wherein lack of knowledge of the investigating officer about the procedures of seizure may mar the investigation.
Loopholes and Manipulations in Seizure
What will happen in a case under the Arms Act if the seizure witnesses during trial in court before a magistrate or judge depose that they know nothing about the seizure of illegal arms and ammunition and only signed the seizure list as directed by the police officer investigating the case and that they were not present at the place at the time of the seizure. The prosecution will find that the conviction of the accused persons will be almost impossible, as the credibility of the entire case in the eyes of the trial judge will be doubtful and the role of the investigating officer will be suspect.In such cases, the witnesses to the seizure cannot always be blamed as the police sometimes allegedly implicate innocent people in false cases for personal or extraneous reasons. In some cases, witnesses in court become hostile due to fear and intimidation of accused persons or their relatives and associates. Even in such cases, it will be difficult for the trial court to convict the accused persons, especially in events where the seizure of the incriminating object or substance weighs heavily on the fate of the case.
In the case of murder, if the testimony of witnesses to the seizure proves in court that the police officer did not show the witnesses the incriminating firearm or knife at the time of the seizure and they cannot identify the same in court, the prosecution will be handicapped to convince the court to secure a conviction in the case. If the seizure list is not conscientiously prepared, the case is adversely affected.
It is often seen that some people of dubious nature work with the police regularly and stay at the police station all the time and help the police officers in various jobs. The police use these persons to produce witnesses in seizure in various cases. These witnesses are called pocket or stock witnesses and in case the defense undermines the credibility of such witnesses in the trial of the case in court, the prosecution becomes doubtful.
The seizure of the incriminating object from a place which is accessible to the public then the seizure shown from the conscious and exclusive possession of the accused person is very difficult to prove in court, as proof of conscious and exclusive possession is required during the investigation of the case for conviction.
In several cases, it has been noted that the investigating police officers have named unrelated persons as witnesses to the seizure, ignoring the actual witnesses to the murder who were present at the scene to destroy the case and save the accused persons by thwarting the seizure of the incriminating articles in the murder case. In one case, it was seen that the relatives of the accused persons were made witnesses of the seizure ignoring the eyewitnesses to damage the investigation of the case.
In one case the arm was seen to have been seized from some other place, but the seizure was made at the police station, and in another the seizure was made from the banks of the river, when in fact it was seized from the park, making the whole seizure procedure doubtful.
Similarly, in the case of possession of arms and ammunition, the seizure was made by the police officer from the almirah in the room where several persons were staying, but in fact it was proved that they were seized from the waist of the accused person. Here, too, knowing and exclusive possession, on which the conviction is based, cannot be proved.
When taking a blood sample from a crime scene, if control earth is not taken from the crime scene along with the blood sample, the crime scene may be made questionable in the eyes of the trail judge by the defense.
Conclusion
If the seizure is not done properly, then it adversely affects the entire case, sometimes leading to the acquittal of the accused persons. When a defense attorney discredits seizure witnesses in front of a trial judge or a judge in court, it casts doubt on the credibility of the prosecution's case in the eyes of the court and calls into question the integrity of the entire investigation conducted by the police officer. Hence, it is imperative for the investigating officer to learn the art of seizure in order to make a perfect investigation. The help of technical experts should be taken wherever required in seizure of articles and investigation of a case.
References
- Independent Witnesses and Seizure, Nagaon District Judiciary, https://nagaonjudicairy.gov.in/Study%20material/Independent%20Witnesses%20and%20Seizure.pdf.
- Seizure under Section 102 CrPC. https://www.rootsresource.in/portfolio/seizure-under-section-102-crpc/
- Top Six Mistakes Police Make When Conducting Criminal Investigation, Browning & Long, PLLC. Attorneys at Law, https://www.browninglonglaw.com/common-mistakes-police-make-in-criminal-investigatios.cfm.
- Disposal Of Case Property In Criminal Cases, By Smt. M. Shubhavani, Addl. Senior Civil Judge, Kadapa, https://districts.ecourts.gov.in/sites/default/files/9-Disposal%20of%20Case%20property.
- Standard Operating Procedure For Investigation Of Cyber Crimes, Cyber Crime Police Station CID (Crime) Aizawl, Mizoram, https://police.mizoram.gov.in/wp-content/uploads/2023/01/SOP-Cyber-Crime-Investigation-v1.0.pdf.
- What is chain of custody? Definition and Examples, By Robert Longley, July 13, 2022, https://www.thoughtco.com/chain-of-custody-4589132.
- Search, Seizure and Production of Materials under Criminal Law, Shruti Singh, December 27, 2019, https://www.google.com/search?+Search,+Search,+Seizure+and+Production+of+Materials+under+Criminal+law,+Shruti.
- Malicious Prosecution: A Deep Dive Into Abuse of Power by Police, N. C. Asthana, 26/MAY/2020, https://thewire.in/government/malicious-prosecution-abuse-police-power.
Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565
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