Procedural Compliance for Search and Seizure under Section 105 BNSS: A Practical Audio-Video Recording Checklist for Police Officers and Defence Counsel

PROCEDURAL COMPLIANCE FOR SEARCH AND SEIZURE UNDER SECTION 105 BNSS: A PRACTICAL AUDIO-VIDEO RECORDING CHECKLIST FOR POLICE OFFICERS AND DEFENCE COUNSEL

A Critical Examination of Investigative Transparency, Procedural Safeguards, Digital Evidence Management, and the Evolving Standards of Fair Criminal Investigation.

1☆ ABSTRACT:

India has updated its criminal justice system by replacing colonial-era laws with the Bharatiya Nagarik Suraksha Sanhita (BNSS). A key element of this reform is Section 105, which requires the use of electronic tools during search and seizure operations. This provision mandates audio-video recording of these proceedings, including the creation of inventories and witness signatures. By transitioning from paper records to digital documentation, it enhances transparency and accountability.

Strict compliance with Section 105 is essential for all participants in the legal system. For law enforcement, proper implementation secures the chain of custody against claims of evidence tampering. For citizens, it protects fundamental rights to privacy and ensures a fair trial. Ultimately, this provision connects Indian criminal law to modern technology and institutional accountability.

 

2 ☆ INTRODUCTION:

India updated its criminal justice system by replacing outdated legislation with three new criminal laws. The Bharatiya Nagarik Suraksha Sanhita (BNSS) took the place of the Code of Criminal Procedure (CrPC), indicating a significant change in criminal procedure. The previous framework struggled to meet modern challenges, making reform necessary.

A key aspect of this change is the use of technology in criminal investigations. The BNSS encourages digital procedures to cut down delays, reduce human error, and improve evidence collection and management. This transition brings Indian policing and forensic practices up to modern investigative standards.

Within this new framework, Section 105 of the BNSS requires audio-video recording of search and seizure operations whenever possible. The recordings must document the preparation of the seizure list and the witnesses’ signatures and should be sent to the jurisdictional Magistrate promptly, ensuring judicial oversight.

The main goal of Section 105 is to enhance transparency, accountability, and the integrity of criminal investigations. By creating a dependable digital record, this provision offers protection against procedural misconduct while shielding investigating officers from false allegations. It ultimately fosters public confidence by providing a balance between effective law enforcement and fairness in procedure and the rule of law.

 

3 ☆ SEARCH & SEIZURE:

A search is the lawful examination of a person, property, premises, or vehicle to find evidence, contraband, or stolen items connected to an offence. Legally, a search violates an individual’s reasonable expectation of privacy and must be authorized by law or backed by a judicially approved warrant.

A seizure is the lawful taking of property relevant to an investigation. This occurs in criminal cases when an officer takes items discovered during a search that relate to the offence. Seizures can directly impact an individual’s property rights, temporarily or permanently taking away their possessions to preserve them as evidence for trial.

 

4 ☆ IMPORTANCE IN CRIMINAL JUSTICE:

Search and seizure operations are vital for effective criminal investigations and the administration of justice. They serve several important functions:

▪︎ Securing Proof: They help authorities collect tangible evidence that proves a crime occurred.

▪︎ Preserving Evidence: They prevent suspects from destroying, hiding, or altering essential material facts.

▪︎ Ensuring Public Safety: They allow for the prompt confiscation of dangerous weapons, illegal drugs, or hazardous materials.

Without these powers, law enforcement would lack the ability to solve complex crimes, find hidden assets, or bring offenders to justice.

 

5 ☆ NECESSITY OF PROCEDURAL SAFEGUARDS:

While the state needs search and seizure powers to maintain public order, these actions inherently conflict with basic human rights. Therefore, strong procedural safeguards are crucial to balance state power with individual freedoms.

▪︎ Protection of Citizens: Prevents arbitrary searches, harassment, and unwarranted invasion of privacy.

▪︎ Integrity of Investigation: Helps avoid evidence fabrication or tampering and maintains the chain of custody.

▪︎ Fair Trial: Ensures evidence is legally obtained, enhancing prosecutions while protecting innocent people from wrongful charges.

 

6 ☆ EVOLUTION FROM CrPC TO BNSS:

▪︎ The Earlier Legal Position

Under the Code of Criminal Procedure (CrPC), 1973, search and seizure operations relied heavily on manual documentation. Sections 100 and 165 of the CrPC governed these actions, requiring officers to conduct searches with two independent local witnesses present. The entire procedure was documented on paper through a search memo or seizure list. This required signatures from the investigating officer, the witnesses, and the occupant of the premises to validate the collection of evidence.

▪︎ Shortcomings of the Old System

The CrPC’s manual approach had significant structural flaws that undermined judicial efficiency:

◇ Evidence Tampering: Paper records and physical evidence bags were highly prone to manipulation, substitution, or loss.

◇ Hostile Witnesses: Independent witnesses often turned hostile during trials, claiming they signed blank papers or were not present during the search.

◇ Fabrication Claims: Suspects frequently accused law enforcement of planting evidence, resulting in lengthy legal disputes.

◇ Delayed Trials: Proving the legitimacy of a physical seizure list without objective visual proof caused significant backlogs in criminal courts.

 

7 ☆ WHY REFORMS WERE NEEDED:

Societal progress and the rise of sophisticated crimes rendered the 1973 framework outdated. The justice system urgently needed reforms to meet global investigative standards. Courts demanded higher proof standards, as oral testimony and paper memos no longer sufficed to secure convictions beyond a reasonable doubt. Additionally, there was a need to curb police misconduct, protect civil liberties, and reduce institutional corruption during field operations.

 

8 ☆ TECHNOLOGY UNDER BNSS:

The Bharatiya Nagarik Suraksha Sanhita (BNSS) addresses these weaknesses by incorporating technology into criminal procedure. The BNSS shifts reliance from manual records to digital evidence. Electronic recording fortifies the chain of custody, reduces disputes, and improves accountability. Technology now acts as an objective observer that permanently secures the chain of custody, modernizing Indian policing and ensuring accountability from the crime scene to the courtroom.

 

9 ☆ SECTION- 105 BNSS: A DETAILED ANALYSIS:

▪︎ Legislative Intent

The primary intent behind Section 105 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is to establish transparency, eliminate police misconduct, and modernize evidence collection. Under the older legal system, search and seizure operations were open to allegations of evidence planting, procedural errors, and corruption. With the introduction of Section 105, the legislature aimed to create an objective, unchangeable technological check on police powers. This shift eliminates reliance on flawed human testimony and replaces it with definite digital proof, ensuring that the authority to search and seize comes with strict accountability.

▪︎ Wording of the Provision and Legal Requirements

Section 105 of the BNSS demands that the search and seizure process must be recorded via audio-video electronic means. This provision specifically requires that electronic recordings include the creation of the list of seized items and the witnesses’ signatures on such lists. Importantly, it also mandates that the investigating officer must send this digital recording to the local Magistrate without delay.

To meet these legal requirements, law enforcement agencies must follow a strict, multi-step protocol during operations:

◇ Continuous Capture: Videography must begin before police enter the premises and continue until the operation is complete.

◇ Asset Identification: The recording must distinctly capture each found item, its exact location, and how it is placed into secure evidence packaging.

◇ Witness Verification: The digital record must show independent witnesses observing the search and signing the seizure memo.

◇ Prompt Submission: The electronic file must be securely sent to the court’s jurisdiction immediately to prevent any chance for later digital edits.

 

▪︎ Significance of Audio-Video Recording:

Requiring audio-video recording transforms how trials assess physical evidence. In traditional cases, trials often stalled because independent witnesses later turned hostile, forgot details, or claimed police coercion. A video recording serves as a permanent, objective, and contemporaneous record of the events.

Moreover, this technological requirement secures the integrity of the chain of custody. It becomes nearly impossible for defense counsel to claim that evidence was planted or for the prosecution to present items that were not originally discovered at the site. By providing courts with undeniable visual proof, Section 105 reduces lengthy cross-examinations about procedural details and disputes over compliance.

 

▪︎ Rights Protected by the Provision :

Section 105 acts as a strong legal safeguard, protecting the fundamental rights of various stakeholders in the criminal justice system:

◇ Right to Privacy and Dignity: 

For citizens, it prevents unauthorized or overly aggressive breaches of their private spaces, ensuring that searches follow legal limits.

◇ Protection Against Self-Incrimination: 

It protects individuals from being coerced into acknowledging false recoveries or signing blank documents under pressure.

◇ Protection for Law Enforcement: 

It shields honest officers from baseless claims of harassment, corruption, or evidence tampering from suspects.

◇ Right to a Fair Trial: 

By ensuring that only verified, unaltered evidence reaches the court, it upholds the constitutional guarantee of a fair and transparent trial.

 

10 ☆ COMPLIANCE CHECKLIST FOR POLICE OFFICERS :

Search and seizure directly impact a person’s privacy and freedom. Therefore, investigating officers must follow the procedural rules outlined in Section 105 BNSS. The checklist below highlights the key steps for conducting lawful and transparent search and seizure operations.

(i) Before the Search: Establishing Legal Authority

Before starting a search, the investigating officer should confirm that:

– The search is authorized according to BNSS.

– The reason and scope of the search are clearly defined.

– Audio-video recording equipment is prepared and tested when possible.

– Necessary personnel and, if legally required, independent witnesses are informed and ready before the search starts.

(ii) During the Search: Ensuring Transparency

While performing the search, the investigating officer should:

– Conduct the search fairly, without bias, and within the law.

– Record the search using audio-video electronic means, as much as possible.

– Ensure independent witnesses are present whenever legally necessary.

– Avoid any actions that could lead to allegations of evidence tampering, coercion, or procedural errors.

(iii) During the Seizure: Securing the Evidence

When seizing items, the officer should:

– Create a detailed inventory of every item taken.

– Label and seal all seized items properly.

– Document the state and location of each seized item.

– Handle the evidence carefully to maintain its integrity and value in court.

(iv) After the Search: Preserving Electronic Records

Once the search is finished, the officer should:

– Securely store the audio-video recording.

– Protect the recording from alteration, deletion, or unauthorized access.

– Ensure that digital evidence is kept according to the proper procedures.

– Keep accurate records of where and how the recording is stored.

(v) Documentation: Maintaining Procedural Integrity

The investigating officer should:

– Accurately prepare the search and seizure memo without unreasonable delay.

– Gather the required signatures on relevant documents.

– Maintain an unbroken chain of custody for every seized item.

– Confirm that all procedural documents are complete, consistent, and able to withstand court scrutiny.

 

11 ☆VERIFICATION CHECKLIST FOR DEFENCE COUNSEL:-

To build an effective defense under the Bharatiya Nagarik Suraksha Sanhita (BNSS), defense counsel must examine the procedural integrity of search and seizure actions. Any divergence from legal requirements can significantly weaken the prosecution’s case. Lawyers should systematically check the following points:

1. Legality of the Search

– Verify if the investigating officer had a valid search warrant from a competent Magistrate.

– Check if the search fell under exceptional circumstances (e.g., Section 185 BNSS) that allowed a warrantless search.

– Ensure the officer recorded their reasons for belief in writing before entering the premises.

2. Mandatory Audio-Video Recording

– Confirm whether the police recorded the entire operation using electronic means as required by Section 105 BNSS.

– Check if the video is continuous, unedited, and without suspicious cuts, transitions, or gaps.

– Verify if the recording shows the initial entry, where the evidence was found, and how it was sealed.

3. Presence of Independent Witnesses

– Examine if at least two independent, respectable local residents were present as witnesses during the search.

– Cross-check witness identities to confirm they are not professional police witnesses or regular informants.

– Verify if the video recording clearly shows these witnesses actively observing the recovery process.

4. Execution and Signing of the Inventory

– Review the seizure list to ensure it has a detailed, clear inventory of all seized items.

– Confirm that the video shows the witnesses and the occupant signing the inventory list on-site.

– Check that a copy of the signed inventory was given to the occupant immediately, with a proper receipt acknowledged.

5. Preservation and Submission of the Recording

– Verify that the electronic recording was sent to the Magistrate without delay.

– Request the hash value certificates created during the recording to prevent later tampering or editing.

– Ensure the digital evidence follows all certification requirements under Section 63 of the Bharatiya Sakshya Adhiniyam (BSA).

 

12 ☆ADVANTAGES OF AUDIO-VIDEO RECORDING UNDER THE BNSS:-

▪︎ Better Evidence:

Video recordings provide clear, real-time proof of crime scenes and recoveries. This raw data is more reliable than human memory or written reports.

▪︎ Improved Transparency:

The requirement for recording makes field operations more visible. It creates a permanent digital record that documents how, when, and where a search occurred.

▪︎ Protection for Police Against False Claims:

Law enforcement officers often face false allegations of corruption, abuse, or planting evidence. An unedited video can exonerate honest officers by showing they followed legal protocols.

▪︎ Protection for Accused Persons:

This technology protects suspects from forced confessions, police overreach, and staged recoveries. It ensures that the state cannot misuse its powers to create false evidence against citizens.

▪︎ Increased Public Trust:

When citizens see that police actions are recorded fairly, it helps mend the trust gap between the public and law enforcement. This transparency enhances the credibility of institutions.

▪︎ Reduced Disputes During Trial:

In traditional cases, trials often delay due to disputes over whether a physical seizure list was falsified or if witnesses became hostile. Reliable visual evidence eliminates these procedural issues. As a result, cross-examinations are quicker, court backlogs decrease, and the entire judicial process speeds up.

 

13 ☆ IMPLEMENTATION CHALLENGES ON THE GROUND:-

While Section 105 introduces meaningful reform, its implementation faces several practical obstacles:

▪︎ Rural Infrastructure Issues: Many rural police stations lack stable electricity, internet, and technical resources.

▪︎ Shortage of Standard Equipment:                           Many officers have to use personal equipment due to inadequate body cameras and recording devices.

▪︎ Storage and Data Management:                       Large amounts of video recordings require secure storage, backup, and effective management.

▪︎ Privacy Issues:            Recording inside private spaces can collect sensitive personal information, necessitating strong privacy protections.

▪︎ Insufficient Officer Training: Many officers need training in digital recording, evidence handling, and data security.

▪︎ Technical Problems:        Device malfunctions, battery failure, or corrupted files can disrupt recordings and raise questions about their validity.

 

14 ☆STRATEGIC RECOMMENDATIONS FOR IMPLEMENTATION:-

To effectively bridge the gap between legal requirements and practical realities under the Bharatiya Nagarik Suraksha Sanhita (BNSS), structural and technological measures are essential:

▪︎ Procurement of Body-Worn Cameras:

State governments should provide field officers with tamper-proof, high-resolution body cameras. These devices ensure stable, hands-free recording during active raids, allowing for complete coverage without interrupting operations.

▪︎ Formulation of Standard Operating Procedures (SOPs):

The Bureau of Police Research and Development (BPR&D) should issue standard SOPs nationwide. These protocols must define clear rules for camera angles, lighting, and interactions with vulnerable individuals to ensure consistency.

▪︎ Deployment of Cloud-Based Storage:

Establishing secure, encrypted, and scalable cloud servers is crucial to managing large volumes of high-definition video files. Access controls must safeguard metadata and prevent unauthorized changes.

▪︎ Continuous Institutional Training:

Police training academies should include digital forensics, data management, and privacy compliance in their main programs. Officers need hands-on training to use recording tools and create valid digital hash values.

▪︎ Strict Judicial Monitoring:

Magistrates should closely examine any delayed digital submissions. Courts must require immediate electronic verification logs during initial hearings to ensure the integrity of the chain of custody.

▪︎ Conducting Periodic Audits:

Independent data security agencies should conduct regular checks on police storage systems. This oversight can identify unauthorized file changes, track equipment deficits, and address vulnerabilities before trials start.

 

15 ☆ FREQUENTLY ASKED QUESTIONS [FAQs] :-

Q1. What is the primary objective of Section 105 of the BNSS?

Answer: Section 105 aims to ensure that search and seizure procedures are conducted transparently and fairly by encouraging audio-video electronic recording wherever practicable, thereby enhancing the credibility of investigations.

Q2. Is audio-video recording mandatory for every search under Section 105 BNSS?

Answer: The provision uses the expression “wherever practicable.” This means electronic recording is expected whenever it is reasonably feasible, considering the facts and circumstances of the case.

Q3. How does audio-video recording benefit the accused as well as the police?

Answer: It creates an objective record of the search, reducing allegations of evidence tampering or procedural misconduct while protecting both the rights of the accused and the integrity of investigating officers.

Q4. Can procedural non-compliance affect a criminal investigation?

Answer: Yes. Failure to follow prescribed procedures may invite judicial scrutiny, weaken the prosecution’s case, and raise questions about the legality and fairness of the investigation.

Q5. Why is maintaining the chain of custody important?

Answer: An unbroken chain of custody helps establish that seized evidence has remained authentic and untampered with from the time of seizure until it is produced before the court.

Q6. What role does a defence counsel play during challenges to search and seizure?

Answer: Defence counsel examines whether the investigating agency complied with statutory procedures, respected the rights of the accused, and properly documented the search and seizure process.

 

15 ☆ CHALLENGE CORNER:-

HOW MANY CAN YOU ANSWER ?

1. How does the introduction of audio-video electronic recording under Section 105 BNSS improve the transparency and credibility of search and seizure proceedings compared to the earlier CrPC framework?

2. Why is maintaining an unbroken chain of custody crucial for preserving the evidentiary value and admissibility of seized material during criminal investigations?

3. In what ways does procedural compliance under Section 105 BNSS protect both investigating officers and the constitutional rights of individuals?

4. What practical challenges may law enforcement agencies encounter while implementing audio-video recording during search and seizure operations, and how can these challenges affect investigations?

5. If you were representing an accused person as defence counsel, which procedural aspects of a search and seizure operation would you examine first to assess its legality and fairness?

 

16 ☆ CONCLUSION:

Section 105 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, represents a significant step towards a more transparent, accountable, and technology-driven criminal justice system. By encouraging audio-video electronic recording during search and seizure, wherever practicable, the provision enhances the credibility of investigations and promotes greater public confidence in law enforcement.

However, the effectiveness of this reform ultimately depends on its consistent implementation. Strict procedural compliance not only strengthens the prosecution’s case but also protects the constitutional rights of individuals by ensuring fairness, transparency, and the integrity of evidence. In this way, Section 105 seeks to balance effective policing with the principles of due process and the rule of law.

 

17 ☆ REFERENCES:-

1. Ministry of Home Affairs, Government of India. New Criminal Laws (Official Texts).  https://www.mha.gov.in/en/commoncontent/new-criminal-laws

2. India Code. The Bharatiya Nagarik Suraksha Sanhita, 2023. https://www.indiacode.nic.in/handle/123456789/21595?view_type=browse

3. Bureau of Police Research & Development (BPR&D). Handbook on the Bharatiya Nagarik Suraksha Sanhita, 2023 (Key Provisions and Changes vis-à-vis CrPC). https://bprd.nic.in/uploads/pdf/BNSS_Handbook_English.pdf

4. Press Information Bureau (PIB), Government of India. New Criminal Laws – Accountability of Police. https://pib.gov.in/Pressreleaseshare.aspx?PRID=2042126&lang=2&reg=48

5. Directorate of Enforcement, Department of Revenue, Government of India. Bharatiya Nagarik Suraksha Sanhita (BNSS). https://enforcementdirectorate.gov.in/acts-and-rules/bnss/

6. Constitution of India (Legislative Department). https://legislative.gov.in/constitution-of-india/

☆ Statutory Provisions Relied Upon

– Section 105, Bharatiya Nagarik Suraksha Sanhita, 2023.

– Section 185, Bharatiya Nagarik Suraksha Sanhita, 2023.

– Section 63, Bharatiya Sakshya Adhiniyam, 2023.

– Articles 14, 20(3), and 21 of the Constitution of India.