POWER OF POLICE TO SEIZE ANY PROPERTY DURING AN INVESTIGATION

October 5, 2022

POWER OF POLICE TO SEIZE ANY PROPERTY DURING AN INVESTIGATION

Introduction

Law enforcement agencies like police of a state has been empowered with due legislative prescriptions to seize property consisting of vehicles, money or other miscellaneous property. Real property may be seized for possession of illegal narcotics and drugs or seizure of property often involves those properties which are suspected or alleged to be stolen. But before delving deeper into this context , let us understand the concepts of ‘property’ and ‘seizure.’

Property: Meaning

‘Property’ is derived from a Latin word proprietary which basically means a thing being owned. Austin, a famous jurist , describes property as the greatest right of enjoyment recognized by law. Bentham on the other hand defines ‘property’ as a right of ownership of material objects alone. Notwithstanding to this, ‘property’ has not been defined in the Transfer of Property Act ,1882 but it comprehensively draws an indicative and prescriptive study to inculcate physical objects, rights and exclusive interests that exists and are derived out of the actual physical objects within the circumference of ‘property.’

Thus, buildings, hereditary allowances, right to get a company’s share comes within the purview of ‘property.’

In R.C Cooper (V) Union of India ,AIR 1970 SC 564, the court observed property as a right including corporeal things like land, furniture, copyrights etc. The Supreme Court viewed property in the context of Article 21 of the Indian constitution which included the liberty of a person in regard to the property owned and possessed.

Kinds of Property

The prime kinds of property have been categorized as follows :-

Movable and Immovable Property

Section 3(36) of The General Clauses Act ,1897 explains movable property as the property of very description except immovable property.

Immovable property on the other hand as defined by the same Act includes land, buildings , hereditary allowances, right ways, lights, ferries, fisheries or any other benefit to arise out of land and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops, or grass. It has also been narrated under section 3 of The Transfer of Property Act, 1882 that immovable property does not include standing timber, growing crops or grass.

Tangible and Intangible property

Tangible property as the name suggests, means a property that can be felt, touched and moved which must be corporeal in nature.

Example: furniture, jewellery, machines etc.

Intangible property is defined as a type of property which cannot be touched, felt or moved. It is also known as incorporeal property which is not physical in nature.

Example: – negotiable instrument, goodwill, shares etc.

Intellectual Property

Intellectual Property refers to the creations derived from mind to produce material inventions, literary and artistic works, designs, symbols, names, images to strike a harmonizing relationship between inventors and wider public interest with an aim of attaining deserving recognition and financial benefit. This widely involves :-

Copyright
Patents
Trademarks
Industrial design
Geographical Indications
Trade secrets

Meaning of Seizure

Seizure in context of property refers of the legally infused process of taking over, grabbing or removing any object or property or taking it into possession which may be used as an evidence in a criminal prosecution through the use of forceful act or conduct. Thus, seizure in simple words refers to the act of taking in actual physical custody.

Seizure of property by police during an investigation as given under The Code of Criminal Procedure ,1973

When a search warrant is issued, a police officer is given the power to seize the things recovered during the search of any particular thing. Similarly, the power to seize any property is also given to the police during the search of any place as required for the very investigation of an offence. This has been incorporated in sections 93 ,94 ,95 ,100(5) and (7) of the Code expressly or impliedly.

Section 102 of the Code explicitly deals with the power of a police officer to seize certain property during an investigation and it has been discussed in the following few lines :-

Any police officer may seize any property which is reasonably alleged or suspected to have been stolen or falls under the circumstances of suspicion of the commission of any offence.

If any subordinate police officer makes such seizure , he shall forthwith the report of the same to the officer in charge of his police station.

Each and every police officer as stated above has to report such seizure to the Magistrate having jurisdiction and in circumstances where the property is such that in cannot be transported to the court conveniently for having hardships in attaining proper accommodation of the said property or there is no need for continued retention of such property being taken in police custody or the physical custody of such seized property is insignificant for the purpose of further investigation , the police officer is empowered to grant custody thereof to anyone on his executing a bond undertaking to produce such property before the court whenever it is required to be produced before the court for executing further orders till the final disposal of the case.

Proviso

Where the property is so seized is subjected to speedy and natural decay given under the fact that the owner of such property is either absent or unknown where the valuation of the property is less than Rs. 500, then such seized property may forthwith be sold by auction as instructed by the Superintendent of Police for the pragmatic net proceed of such sale, as given under section 457 and section 458 of the Code.

Need for seizing any property during an investigation

For safety- Valuable property like money , jewellery , machines or crucial property like murder weapon , rape victim’s garment are prerequisite for investigation of any case and also to safeguard such property from being damaged with any intention of tampering the evidence.

Forfeiture -A police officer is empowered to seize any property which sustains reasonable claims and beliefs to have been used in the commission of any crime or have been procured during the commission of such crime.

Contraband -Illegal property like drugs, unlicensed pistols can be seized by a police officer for it being a crime to possess then with personal knowledge of such permission.

Evidence -Property which can aid to evidence in an offence can be seized by an empowered police officer.

Which property can be seized by a police officer during an investigation ?

This question has been essentially dealt in the case: Nevada Properties Private Limited through Its Directors (vs) The State of Maharashtra and Another (2019) , where the Supreme Court clarified that section 102 of The Code of Criminal Procedure, 1973 does not empower any police officer to seize any immovable property.

The apex court critically observed that: “immovable property can be attached and also locked/sealed. It could be argued that the word seize would include the action of attachment and sealing. Seizure of immovable property in law requires dispossession of the person in occupation, possession of the immovable property, unless there are no claimants, which would be rare. Language of section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it.”

Other Relevant Case Laws

In RK Dalmia etc. (vs) Delhi Administration, (1962) INSC 124,

the Supreme Court held that the term ‘any property’ as mentioned under sub-section (1) of section 102 of The Code of Criminal Procedure, 1973 has to be enumerated with reference to the definition expressed under The Indian Penal Code , 1860 which widens up the concept of movable property. According to The Indian Penal Code, the question if a particular property can come under the purview of the said provision or not depends on its merit of association with any criminal offence.

In Teesta Atul Setalvad (vs) State of Gujarat, (2018) 2 SCC 372 , the Supreme Court has significantly mentioned that the term property as amplified in section 102 of The Code of Criminal Procedure, 1973 includes bank accounts of an accused or any of his relations and the police is empowered to seal such property and prohibit any further transaction and operation of such account during the course of investigation if reasonable apprehension exists that the account has due linkage with the commission of any offence.

Conclusion

Indian judiciary has always encountered debates regarding the power of different law enforcement bodies and one such question pertaining the rights and powers of a police officer in regard to seizure of property has essentially drawn the attention of the citizens of this country. The Indian constitution observes property as a right enjoyed by people who own and possess it in light of personal liberty as defined in the wide sphere of Article 21. Hence the question of invasion into a person’s personal space and specifically ‘property’ required broad sense of analytical disclosure which has been dealt in significant judgements passed by different judicial bodies. Therefore, it can be inferred, that a property when ceases another’s judicial right per se is involved in a state’s dispute and thus law confirms police of the authority to seize it within prescribed provisions and implied guidelines under specific Acts and Code as discussed previously.

REFERENCES

BOOKS
Dr. Poonam Pradhan Saxena, Property Law, (3^rd, 2017)

STATUTES

INDIAN LAW

The Indian Penal Code, 1860, No.45, Acts of Parliament, 1860 (India)

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October 5, 2022