For Search Without Warrant Under Special Enactments, Recording Of Reasons Is Mandatory : Supreme Court

The Supreme Court recently held that in every search conducted under a special enactment without warrant, the requirement of recording reasons to believe is mandatory.

The Court noted that Section 165 of the Code of Criminal Procedure (S.185 BNSS) mandates the recording of reasons for the belief regarding the existence of incriminating materials and the necessity of imminent search, when a search is carried out without warrant. The Court noted 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 etc., mandate the observance of the provisions of the Code of Criminal Procedure in relation to search and seizure. Hence, the mandate of S.165 CrPC has to be followed.

"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 effecting the seizure must record reasons for such seizure, and those reasons must demonstrate due application of mind to the materials available.

A bench comprising Justice JB Pardiwala and Justice R Mahadevan was dealing with a case under the Legal Metrology Act 2009.

The Court said that even in cases where search warrant cannot be obtained due to exigent circumstances, general provisions relating to searches contained in Section 100 CrPC apply. As such, existence of reasons to believe that an imminent search is necessary, must be recorded, with as much detail as possible.

"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 instant case, the respondent-authorities conducted a search and inspection during business hours at a commercial warehouse of the appellant-ITC Limited and seized 7,600 pre-packed wholesale packages of exercise books of the Classmate brand, for alleged violations of Rule 24(a) of the 2011 Rules and Section 36(1) of the 2009 Act. The search was conducted without a warrant, and no reasons were recorded for conducting the search or inspection, or for seizure of the goods.

Therefore, the issue before the Court was whether the inspection and seizure, conducted by the Inspecting Authority under Section 15 of the 2009 Act, was unlawful?

After hearing the parties, the Court opined that under Section 15 of the 2009 Act, there must be reasons to believe both for conducting a search or inspection of premises and for seizure of materials therefrom. In addition, the authorities must also comply with CrPC provisions relating 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 respondents contended that there was no search, but only an inspection, the Court relied on Section 15 of the 2009 Act and Sections 93, 100(4)-(5) CrPC to opine that in the absence of a search, there cannot be any seizure. It was added that the procedure outlined under CrPC must be followed even in case of goods stored in warehouses or godowns, irrespective of whether open or closed.

"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 underlined that these safeguards are incorporated in the 2009 Act and the CrPC 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 also distinguished between "search" and "inspection", noting that "search" has a wider connotation.

"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 facts, it was observed that the presence of 2 respectable independent witnesses was mandatory at the time of search/seizure, and therefore, a driver of the Inspecting Authority acting as a witness violated law. Admittedly, there was no warrant and no reasons were recorded. Since the initial process were vitiated, all subsequent proceedings were also not sustainable, the Court said.

Ultimately, it was concluded that the search and seizure were vitiated by procedural violations. The order of the Division Bench of the High Court was quashed and that of the Single Bench restored.

Case Title: ITC LIMITED VERSUS STATE OF KARNATAKA & ANR., CIVILAPPEAL NO. 11798 OF 2025 (and connected case)

Citation : 2025 LiveLaw (SC) 910

Click here to read the judgment