Mandate of Sections 105 & 185 of BNSS – Police Seizure of Woman’s Mobile Phone
On 24.1.2026, the crime was registered for offence under Rule 134 of the Maharashtra Motor Vehicles rules, 199 and Sections 281 & 125(a) of BNS on the allegations that whole wheeler collided with the motor cycle of the victim.
On 25.1.2026, the police visited the residence of the petitioners and made inquiries in the said crime in the absence of police constable. Again on 31.1.2026, the police visited the residence petitioner no.1 without warrant and interrogated wen her husband was not present.
The police entered the bedroom of the petitioner no.1 and taken mobile phone without seizure pnahcnanama, acknowledgement or receipt of seized mobile phone.
Thereafter, the police issued section 35(3) BNSS notice to the husband.
- Recording of search and seizure through audio-video electronic means.
The power to conduct a search without obtaining a search warrant is not an unfettered power. The object underlying Section 185 of the BNSS is to empower the investigating agency to conduct a search in emergent circumstances only where he has reasonable grounds to believe that anything necessary for the purposes of investigation may be found at a particular place and obtaining a search warrant from the Magistrate may occasion undue delay and thereby prejudice the investigation. At the same time, the legislature has incorporated procedural safeguards to ensure that such extraordinary power is exercised fairly, transparently and in accordance with law. The grounds of such belief and the reasons necessitating an immediate search must be recorded in writing before the search is undertaken. The requirement of recording reasons is not an empty formality but constitutes an important safeguard. The requirements engrafted under Section 185 are, therefore, mandatory in nature and admit of strict compliance.
Apart from the non-compliance with Section 185 of the BNSS, the seizure of the mobile phone of petitioner No.1 also does not satisfy the mandatory requirements prescribed under Section 105 of the BNSS. The said provision contemplates that where any property is seized during investigation, the seizure must be effected in accordance with the procedure prescribed by law by preparing a contemporaneous seizure memo in the presence of independent witnesses, furnishing an acknowledgment to the person from whose possession the property is seized, maintaining proper documentation of the seized article and ensuring transparency in the process of seizure, including recording the proceedings through electronic means wherever mandated. The statutory safeguards are intended to preserve the sanctity of the investigation and to protect citizens against arbitrary deprivation of their property.
Investigative, Search & Seizure Police Powers must be exercised strictly within the bounds of law – privacy rights cannot be sacrificed merely because the police are conducting an investigation.
Judgment dated of the High Court of Bombay, Bench at Nagpur, in Criminal Writ Petition No.128 of 2026 of Khushbu Iddrish Khan and another Vs. State of Maharashtra and another
