Section 105 of the BNSS - Documenting Search and Seizure via Audio-Video Electronic Methods:

When carrying out a search of a location or seizing any property, item, or object under this Section 105 or Section 185 of the BNSS, the procedure - including compiling a list of all items taken during the search and seizure and having witnesses sign that list - must be documented using any audio-video electronic device, preferably a mobile phone. The police officer is required to promptly send this recording to the District Magistrate, Sub-divisional Magistrate, or first-class Judicial Magistrate. This section is silent on whether personal or official mobile phone will be used by the investigating officer.

Section 185 of the BNSS – Search by Police Officer:

• A police officer in charge of a police station or conducting an investigation may search any location within their jurisdiction if they have reasonable grounds to believe that evidence relevant to an offence they are authorized to investigate can be found there, and that obtaining this evidence through other means would cause undue delay. Before proceeding with the search, the officer must document their reasons in the case diary, detailing, as much as possible, the specific items they intend to search for.
   
• Whenever possible, the police officer should personally carry out the search mentioned in subsection (1). It is required that any search conducted under this section is recorded using audio-visual electronic methods, ideally through a mobile device.
   
• If the officer is unable to conduct the search personally and no qualified individual is available to assist, they may record their reasons in writing and instruct a subordinate officer to carry out the search. The officer must provide written authorization that specifies the location and the items to be searched for, allowing the subordinate officer to proceed accordingly.
   
• The procedures regarding search warrants established in the BNSS, along with the general search provisions outlined in section 103 BNSS, shall apply to searches conducted under this section, as far as possible.
   
• Copies of any records created under subsections (1) or (3) must be sent to the nearest Magistrate capable of taking cognizance of the offence within forty-eight hours. Additionally, the owner or occupier of the location that was searched is entitled to receive a free copy of the record upon request from the Magistrate.

Section 57 BSA | Bharatiya Sakshya Adhiniyam, 2023

Primary Evidence:

Primary evidence refers to the original document presented for the Court's examination.

• Explanation 1: If a document is executed in multiple parts, each part serves as primary evidence of the whole document.
• Explanation 2: In situations where a document is executed in counterpart, with each counterpart signed by one or more parties, each counterpart is considered primary evidence against the parties who executed it.
• Explanation 3: When several documents are produced through a uniform process, such as printing, lithography, or photography, each document serves as primary evidence of the content of the others. However, if all documents are merely copies of a single original, they do not qualify as primary evidence of the original's content.
• Explanation 4: In the case where an electronic or digital record is created or stored in multiple files at the same time or sequentially, each of those files is classified as primary evidence.
• Explanation 5: An electronic or digital record obtained from a legitimate source is regarded as primary evidence unless its authenticity is challenged.
• Explanation 6: If a video recording is stored electronically while being simultaneously transmitted, broadcast, or transferred to another party, each instance of the stored recording serves as primary evidence.
• Explanation 7: When an electronic or digital record is saved in various storage locations within a computer system, each instance of that automated storage, including temporary files, is considered primary evidence.

Limitations of Section 105/185 of the BNSS:

Due to the lack of dedicated cameras provided by government authorities or the police department for search and seizure operations under Sections 105/185 of the BNSS, many investigating officers find themselves having to utilize their personal mobile phones for audio and video recording during these crucial procedures. This dependency introduces a range of challenges. The question is whether an investigating officer can use his personal mobile phone for audio video recording of the search and seizure operation? There is no guideline in the BNSS or any directive from the High Courts or Supreme Court in this regard.

One primary issue is the limited battery life of the personal mobile phones, which can quickly drain during extended recording sessions. Coupled with this is the concern of insufficient storage capacity. When officers attempt to document lengthy operations, they often run into difficulties, as their devices may not have the space to accommodate high-quality video files for the entire duration of the operation.

Moreover, the use of personal mobile phones poses further complications. For instance, if an officer receives a phone call during a recording, it disrupts the flow of the video, resulting in an abrupt interruption. Consequently, instead of capturing a continuous and uninterrupted video stream, the recording is fragmented into multiple files. This not only complicates the editing process but also presents challenges in maintaining an accurate and coherent account of the operation for evidentiary purposes. Overall, the current reliance on personal devices for such critical tasks underscores the urgent need for dedicated recording equipment within law enforcement agencies.

A personal mobile's storage capacity might struggle to accommodate the volume of stored recordings. In numerous police stations, a single investigating officer may have over 50 cases pending. Mobile phones might be considered primary evidence, hence classified as court property. The batteries of personal mobile phones may be insufficient, especially in urban areas. In such situations, assistance from the government could be necessary to provide mobile phones equipped with powerful batteries, increased storage capacity, and high-quality audio and video recording capabilities to the investigating officers.

Each officer must receive training on the proper procedures for recording audio and video during all searches and seizures, as well as techniques for ensuring the integrity of these recordings throughout the chain of custody. When audio video recording of the search and seizure operation is performed in accordance with Section 105 of the BNSS using a mobile phone, and the resulting footage is later transferred to a Compact Disc, Memory Card, or Pen Drive, Investigating Officers often find themselves unclear on whether this qualifies as primary evidence, particularly due to possible changes in hash values. Consequently, officers are left uncertain about the correct methods for storing audio and video materials and the proper process for submitting them to the Learned Court within a 48-hour timeframe.

BNSS is also silent on the storage system (Pen drive/CD/DVD or otherwise) in which the audio video recording of the search and seizure operation should be presented to the Court.

The Supreme Court in the case of Arjun Panditrao Kotkar has addressd these inquiries. It establishes that a certificate is only needed when submitting electronic evidence as secondary evidence. If the original electronic record, regarded as primary evidence, is available, a certificate is unnecessary. The owner of the computer, tablet, or mobile phone can directly present the original electronic record as evidence by confirming their ownership or operation of the device where the information is originally saved.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565