Search & seizure of an accused while in police custody — legal article on BNSS Sec 105 & 185 and BSA 2023, with recent Kerala HC / SC decisions

 Search & seizure of an accused while in police custody — legal article on BNSS Sec 105 & 185 and BSA 2023, with recent Kerala HC / SC decisions

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By: Advocate Salil Kumar P. (Kozhikode) Ph : 8075113965

Date: 24 November 2025

Introduction — why does this matter ?

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA) introduce important procedural and evidentiary changes to how searches and seizures are to be carried out and used as evidence. Two BNSS provisions — Section 105 (recording of search & seizure via audio-video means) and Section 185 (detailed regime for police searches) — are especially material where the police search an accused person who is already in custody, or seize material from an arrested person’s person, lodgings or possessions during custody. These provisions, read with BSA’s rules on admissibility and authentication, create mandatory safeguards and fresh grounds to challenge procedural non-compliance.

Text & plain-language reading of the key provisions : 

Section 105 BNSS — mandatory audio-video recording of search & seizure

Section 105 mandates that the entire process of conducting a search of a place or taking possession of any property/article/thing under the Chapter (or under Section 185) — including preparation of the list (mahazar) and signatures by witnesses — “shall be recorded through any audio-video electronic means (preferably mobile phone)”, and that the police officer shall without delay forward that recording to the District Magistrate / Sub-Divisional Magistrate / Judicial Magistrate of the first class. In short: video/audio documentation is mandatory and must be forwarded to the magistrate promptly.

Section 185 BNSS — search by police officer (exigency / incidental searches)

Section 185 (the BNSS counterpart of earlier CrPC exigency/search provisions) regulates searches by officers in charge and investigating officers, sets out the conditions when warrantless searches are permitted (reasonable grounds, recording of reasons, presence of witnesses, etc.), and contains a specific proviso that such searches shall be recorded through audio-video electronic means and copies sent (within the period the statute prescribes) to the magistrate empowered to take cognizance. This reinforces Section 105 and ties the exigency search to the recording requirement.

The Bharatiya Sakshya Adhiniyam, 2023 governs admissibility, relevance and proof. While BSA does not itself prescribe how searches must be done, it governs how search/seizure evidence is proved and admitted. In practice, non-compliance with BNSS recording provisions can affect the weight and sometimes the admissibility of seizure evidence under BSA rules (chain of custody, authenticity, best evidence, and the court’s discretion to exclude unfairly obtained material).

Practical legal effects when the accused is searched while in custody : 

Mandatory recording — threshold question : 

If police search an accused in custody (body search, seizure from belongings or cell), Section 105/185 requires the search and seizure process to be audio-video recorded and forwarded to the magistrate. Failure to record (or to forward promptly) is a mandatory procedural lapse that directly undermines the prosecution’s contemporaneous records.

Chain of custody / best evidence: 

BSA requires reliable proof of how evidence was seized and handled. A video recording is now part of the best evidence. Absence of video, or defective video (truncated, tampered, not played at trial, no transcript), weakens the chain of custody and may lead courts to exclude or discount the seized materials.

Judicial oversight & forwarding to Magistrate : 

The statutory duty to forward the recording to the Magistrate without delay creates an additional transparency step — the magistrate receives contemporaneous material that can prevent subsequent tampering or after-the-fact justification by police. This step is often decisive in bail and custody-related proceedings.

Special Acts / prior inconsistent rules: 

Where a special statute provides for search/seizure procedure that previously referenced CrPC, BNSS now applies by virtue of the general replacement; and courts have held that Section 105 applies to searches under special enactments unless the special Act expressly overrides BNSS. Practitioners should check whether a special Act has inconsistent procedural language.

Remedies and relief : 

Remedies for non-compliance include suppression/exclusion of the seized material, acquittal if the prosecution’s case collapses, direction for retrial (if prejudice established), or orders to preserve recordings and forensic audit where tampering is suspected. The extent of remedy depends on whether prejudice to the accused's right to fair trial is shown.

Controlling precedents — latest Kerala High Court & Supreme Court decisions : 

1. D.K. Basu v. State of West Bengal (1997) — foundational principles on custodial safety, prompt information to relatives, witness presence, and other safeguards. Courts repeatedly rely on D.K. Basu when assessing custodial fairness and police practices. (Landmark guidelines remain relevant when read with BNSS mandatory recording).

2. Suresh v. State of Kerala (Kerala High Court, 24 July 2025) — Kerala High Court emphasised mandatory audio-visual documentation for crime-scene/search processes under BNSS and directed strict compliance with BNSS recording provisions and forensic SOPs. The Court held that where statutory recording is feasible, non-recording raises serious doubts on prosecution evidence and on procedural regularity. This is an authoritative state-level decision reinforcing Section 105’s mandatory character.

3. Shahina v. State of Kerala (Kerala High Court, 4 July 2025) — the High Court examined contemporaneous records (seizure mahazar, arrest memo) and stressed the importance of accurate, contemporaneous documentation; the judgment illustrates the Court’s approach to scrutinising seizure records in custody cases and the evidentiary significance of properly made mahazars and their formalities.

Selected recent High Court / appellate rulings (2024–2025) — several High Courts have either excluded or strongly discounted prosecution evidence where BNSS recording requirements were not complied with, or where the recording existed but was not preserved, played, or properly authenticated at trial. 

Supreme Court — evolving stance (post-BNSS era) — the Supreme Court’s long-standing custodial safeguards (including D.K. Basu) provides the constitutional underpinning. In 2024–2025 the Supreme Court and various benches have reiterated that recording and contemporaneous reasons for warrantless searches are essential for legality (courts have emphasised the need to record reasons, witness presence and adherence to statutory safeguards when exigent searches are done). Where statutory recording is required by BNSS, higher courts are increasingly treating the requirement as mandatory and relevant to admissibility. 

How courts are treating non-compliance — trends & examples : 

Non-recording → evidence weakened or excluded: Trial Courts / High Courts have in multiple matters (including NDPS cases) held that failure to record seizures as per BNSS undermines prosecution’s best evidence and has resulted in acquittals or orders to re-open factual findings.

Where recording exists but poorly handled: Courts have ordered forensic preservation, directed that video be played in court, and required witness-by-witness explanation to remove ambiguity. In some instances appellate courts have ordered retrial or re-examination where the video was not properly adduced at trial.

Magistrate role: Courts treat the magistrate’s receipt of the forwarded recording as an important safeguard — a magistrate who receives contemporaneous recording holds material that controls later disputes about tampering or authenticity.

Practical drafting & litigation tips for defence counsel : 

On arrest / custody / search — file immediate applications to preserve recordings and to direct the police to forward copies to the magistrate (if not done) and to produce originals. Seek preservation orders under the court’s inherent powers.

Challenge chain of custody — obtain full seizure mahazar, seizure memo, panchnama, names & addresses of independent witnesses, and ask for metadata for the audio-video file to test authenticity.

If no recording exists — move to exclude evidence seized in that operation or argue for acquittal where the seizure was the core of the prosecution’s case (support with recent high court rulings where lack of recording led to exclusion).

If recording exists but not produced at trial — insist the court play the original recording in court, call forensic experts to establish continuity and check for editing, and cross-examine investigating officers on why forwarding requirement was not complied with.

Use BSA principles — rely on BSA doctrines (authentication, best evidence, relevance) to attack the prosecution’s inability to prove the provenance of seized items without the statutorily-mandated recording.

Practical tips for police / prosecution compliance (to avoid evidence being excluded) : 

Ensure every search/seizure (including searches of accused in custody) is audio-video recorded end-to-end on a functioning device; prepare and sign the seizure list in front of witnesses while recording continues; forward the recording without delay to the magistrate and obtain/make note of forwarding receipts.

Conclusion : 

BNSS Sec 105 and 185 transform search/seizure law by making audio-video recording and magistrate notification mandatory safeguards. For searches of an accused while in custody, compliance is not a mere technicality: courts (including the Kerala High Court) have treated compliance as central to the prosecution’s case. BSA’s evidence rules further empower defence challenges where BNSS procedures are not followed. Defence counsel should attack seizures lacking statutory recording; prosecutors and investigators must adopt stringent recording, forwarding and preservation practices to keep evidence admissible.