For Search Without Warrant Under Special Enactments, Recording Of Reasons Is Mandatory: Supreme Court
The Supreme Court lately held that in every search carried out under a special implementation without warrant, the need of recording reasons to think is mandatory.
The Court kept in mind that Section 165 of the Code of Criminal Procedure (S. 185 BNSS) mandates the recording of reasons for the idea pertaining to the presence of incriminating products and the need of brewing search, when a search is performed without warrant. The Court kept in mind that special enactments like the Legal Metrology Act, the Income Tax Act, the Customs Act, the Central Excise Act, the Goods and Service Tax Act, 2017, the Narcotic Drugs and Psychotropic Substances Act and so on, mandate the observation of the stipulations of the Code of Criminal Procedure in connection with search and seizure. Hence, the required of S. 165 Cr COMPUTER needs to be complied with.
“In every search conducted under a special enactment without a warrant, the requirement of recording reasons to believe is mandatory. The reasons necessitating the search must be relevant and must reflect application of mind based on some information – either from a third party or personal knowledge – and cannot be based on mere presumption or extraneous considerations. Such reasons cannot rest on mere suspicion or subjective satisfaction; something more substantial is required for a prudent person to conclude that a search and/or seizure is necessary,” the Court observed.
Also, the authority impacting the seizure needs to tape reasons for such seizure, and those reasons should show due application of mind to the products readily available.
A bench making up Justice JB Pardiwala and Justice R Mahadevan was managing an instance under the Legal Metrology Act 2009.
The Court claimed that also in instances where search warrant can not be acquired because of exigent scenarios, basic stipulations connecting to searches had in Section 100 Cr computer use. As such, presence of reasons to think that a brewing search is essential, should be tape-recorded, with as much information as feasible.
“the entire proceedings from search to seizure are illegal and unsustainable, as neither a warrant was obtained nor reasons recorded for search, inspection, or seizure. The mandatory safeguards under Section 15 of the 2009 Act, and Sections 165, 100(4) and 100(5) Cr.P.C were disregarded…Further, there is nothing on record to show that the search was so imminent as to justify dispensing with a warrant”, observed the bench.
In the instantaneous situation, the respondent-authorities carried out a search and evaluation throughout organization hours at an industrial storehouse of the appellant-ITC Limited and confiscated 7,600 pre-packed wholesale bundles of workout publications of the Classmate brand name, for declared offenses of Rule 24( a) of the 2011 Rules and Section 36( 1) of the 2009Act The search was carried out without a warrant, and no reasons were tape-recorded for carrying out the search or evaluation, or for seizure of the items.
Therefore, the concern prior to the Court was whether the evaluation and seizure, carried out by the Inspecting Authority under Section 15 of the 2009 Act, was illegal?
After listening to the celebrations, the Court said that under Section 15 of the 2009 Act, there should be reasons to think both for carrying out a search or evaluation of facilities and for seizure of products therefrom. In enhancement, the authorities should additionally abide by Cr computer stipulations connecting to search and seizure.
“The language of Section 15(1) makes it clear that the officer must have reason to believe that an offence has been committed or is likely to be committed and that materials or evidence relevant thereto are available in the premises. These pre-requisites under Section 15(1) are common to inspection, search and seizure.”
Insofar as the participants competed that there was no search, yet just an examination, the Court relied upon Section 15 of the 2009 Act and Sections 93, 100( 4 )-( 5) Cr computer to say that in the lack of a search, there can not be any kind of seizure. It was included that the treatment laid out under Cr computer needs to be complied with also in situation of items saved in stockrooms or godowns, regardless of whether open or shut.
“The expression ‘closed premises’ denotes premises, where access is locked or otherwise unavailable to the public except with the permission of the occupant, and cannot be construed narrowly to exclude openair premises, if such access is not generally available to unauthorised persons. A distinction must be drawn between premises where the public has access for a limited purpose and premises that are truly public.”
The Court underscored that these safeguards are included in the 2009 Act and the Cr COMPUTER to “prevent arbitrary action” and to”uphold the guarantee of due process”
“merely because a place is open at the time of visit does not mean that the requirements under Section 15 of the 2009 Act or the Cr.P.C. can be bypassed. Any officer intending to conduct a search or inspection and effect a seizure must necessarily follow the prescribed procedure and cannot forcibly enter premises without warrant or reasons duly recorded.”
The Court additionally compared “search” and “inspection”, keeping in mind that “search” has a bigger undertone.
“Inspection refers to the verification of the books, records, or documents at the premises of a person, which is generally permissible under the respective law upon compliance with the prerequisites of authorization, recording of reasons to believe, and permission from the competent authority under law. It is made to verify compliance with the statute. A search, on the other hand, has a wider connotation. It implies the power to look in any place for any materials, goods, books, or documents believed to be secreted or concealed, which may evidence a violation and may be liable to seizure or confiscation.”
On truths, it was observed that the existence of 2 commendable independent witnesses was mandatory at the time of search/seizure, and as a result, a chauffeur of the Inspecting Authority acting as a witness breached regulation. Admittedly, there was no warrant and no reasons were tape-recorded. Since the preliminary procedure were vitiated, all succeeding procedures were additionally not lasting, the Court claimed.
Ultimately, it was wrapped up that the search and seizure were vitiated by step-by-step offenses. The order of the Division Bench of the High Court was suppressed which of the Single Bench recovered.
Case Title: ITC LIMITED VERSUS STATE OF KARNATAKA & & ANR., CIVILAPPEAL NO. 11798 OF 2025 (and linked situation)
Citation: 2025 LiveLaw (SC) 910
