📖 M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 (eight Judges)

Facts: Search warrants were issued for the seizure of documents from premises, and it was contended that compelling the production of documents which might incriminate their holder violated the constitutional protection against self-incrimination.

Held: The Bench of eight Judges held that a search and seizure is a temporary interference with the right to hold the premises searched and the articles seized, and that the power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security — a power necessarily regulated by law. The Court held that the Constitution contains no express provision corresponding to a general guarantee against search and seizure, and that the regulation of the power is therefore a matter for the statute, whose safeguards are what confine it. On self-incrimination, the Court held that the protection is against being compelled to be a witness, and that a search of premises and seizure of documents found there is not a compulsion of the person: the documents are obtained without any act of his, and the protection is therefore not attracted. It emphasised that the statutory safeguards attending a search are what stand between the power and its abuse.

Ratio: The power of search and seizure is an overriding power of the State for the protection of social security, necessarily regulated by law. A search of premises is not a compulsion of the person, so the protection against self-incrimination is not attracted.

📖 State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685

Facts: In the course of an investigation, an officer issued a direction prohibiting the operation of a bank account said to hold the proceeds of the offence. It was contended that a bank account is not “property” capable of being seized, the power being confined to things which can be physically taken away.

Held: The Supreme Court held that the expression any property in the provision empowering a police officer to seize is wide enough to include a bank account, and that an officer investigating an offence may direct that the account not be operated where he has reason to believe that it holds property connected with the offence. The Court reasoned that the object of the power is to preserve — to prevent property connected with an offence from being dissipated or put beyond reach before the trial — and that an interpretation confining it to things capable of manual delivery would defeat that object entirely in exactly the cases where preservation matters most. It held that the form of the property does not determine whether it may be seized, and that what matters is whether it is property which the officer has reason to believe is connected with the offence. But the Court emphasised that the power is to be exercised on reasons which exist and can be stated, and that the seizure must be reported to the Magistrate in the ordinary way.

Ratio: The power to seize any property is wide enough to include a bank account, which may be frozen where the officer has reason to believe it holds property connected with the offence. The object is preservation, and the form of the property does not defeat it.

⚠ Four propositions worth holding

The power of search is an overriding power of the State, necessarily regulated by law — and it is the regulation that is the safeguard.

A search warrant does not compel self-incrimination. A search of premises is a process against the place or thing, not a compulsion of the person, and the protection is not attracted.

Seizure extends beyond things that can be carried. A bank account may be seized by prohibiting its operation, the object being to preserve, and the form of the property does not defeat it.

And the safeguards are substantive, not formal. Recording the grounds of belief before the search confines the officer to his stated purpose; the independent witnesses and the list of things seized answer the allegation of planting; and the audio-video record under section 105 answers both at once.

The position stated shortly

1. A search is the act of looking; a seizure is the act of taking. A search which finds nothing is still a lawful search.

2. Searches are authorised by search warrants under sections 96 to 103, and by section 185 for a police officer in the course of an investigation, on recorded grounds of belief.

3. Section 106 empowers a police officer to seize property alleged or suspected to have been stolen, or found in circumstances creating suspicion of an offence.

4. Section 103 requires two or more independent and respectable inhabitants to attend a search; section 46 requires a woman to be searched by a woman.

5. Section 105 covers both acts: the search and the taking of possession, including the list and its signing, shall be recorded and forwarded to a Magistrate.

6. The power of search and seizure is an overriding power of the State for the protection of social security, necessarily regulated by law: M.P. Sharma.

7. A search of premises is not a compulsion of the person, so the protection against self-incrimination is not attracted.

8. Any property is wide enough to include a bank account, which may be frozen where the officer has reason to believe it holds property connected with the offence: Tapas D. Neogy.

9. An irregular search does not vitiate the seizure, and the articles do not become inadmissible — the irregularity going to weight.

10. But under the Sanhita a failure to record is harder to explain, and the absence of a required recording is itself a circumstance the defence may rely on.