31st October 2020

Confidant Classes

A Premier Judicial Service Coaching

Can the police seize the phones of the people being investigated?

The Narcotics Control Bureau (NCB), which is investigating drug charges against actor Rhea Chakraborty and others, seized and recovered data from the cell phones of Rhea and Jaya Saha, director of the late actor Sushant Singh Rajput. NCB has named Rhea and Shah as defendants in their FIR in the case. They also seized the phones of actresses Deepika Padukone, Shraddha Kapoor and Sara Ali Khan, who are not charged in the case.

Can the police seize the phones of the people being investigated?

Yes. Article 102 of the Code of Criminal Procedure gives the police the right to seize material they consider valuable in the context of the investigation.

  • Sections on a police officer’s power to confiscate certain property state; “Any police officer may seize any property which could be suspected or suspected of having been stolen, or which can be found in circumstances which create suspicion of any offense.
  • Said police officer (…) must immediately report the seizure to the competent magistrate and to the place where the property was seized.
  • “The NCB, a central body which is not technically the police, obtains similar powers of “search and seizure” of the NDPS law.

What if the person has not been named as the defendant?

  • Section 102 of the CrPC gives the police the power to seize the laptop / laptop / private diary or anything they believe will help them investigate the case.
  • It doesn’t matter if the person is an accused or just a witness in the case, as long as the police think they have something that will aid the investigation.

Are there any guarantees of respect for the privacy of the person whose telephone is seized?

  • An investigator is supposed to remove personal devices for investigative purposes only and should not be disclosed to anyone. However, if someone feels their data is being leaked, they can turn to the court hearing the case so that the agency does not leak that could lead to defamation.

In the case of Deepika, Sara and Shraddha, the agency said they voluntarily returned their phones. How it works?

  • An IPS official said that while they usually confiscate the phones of the accused, when it comes to obtaining data from witnesses or government agencies such as land registers in a particular case, there is also something called “transfer / takeover” for an additional operation fluid.
  • The seizure of a particular document / device involves an appropriate procedure which includes the seizure of evidence in the presence of witnesses and the making of a panchnama, the sealing of the objects and also the taking of the hash value in the case of electronic items. to prove that they were not tampered with.
  • The transfer / takeover is usually done without these detailed procedures and means speeding up the process.

In which cases do the agencies make foreclosures and / or handovers / repossessions?

  • In cases where it is likely that the person could later claim in court that the evidence has been tampered with, agencies usually confiscate it to provide guarantees against any allegations, as all evidence is sealed in front of witnesses who can be called to confirm the same in court.
  • Assignment / repossession is usually reserved in cases where there is no possibility of prosecution, such as a government agency that hands over land records / birth certificates to an agency.
  • In general, while state police prefer seizures in most cases, while central agencies like the CBI sometimes use surrender / takeover.

What is the hash value for electronic products?

  • When an agency enters a mobile, laptop or other electronic device, it must take the hash value. A hash value is basically an algorithm that is a specific numeric value that identifies the contents of the file at any given time.
  • If you try to modify the content of the device, the hash value will change. When the device is handed over to a forensic authority, to retrieve data, they are only supposed to proceed if the hash value recorded at the time of entry is the same as on the device when they gave it to them.
  • Ensures the sanctity of the data. If during a raid there are no experts to take the hash value, the agents are supposed to seal the phone in a bag which is then opened in front of the cyber experts.
  • Even in the case of computers, agents are not supposed to shut down the computer, as data could be lost, and simply remove the cable and seal it.

Are there cases where the defendant was not provided with the hash value?

  • In the Bhima Koregaon case, where several activists and lawyers were arrested for inciting violence at the Elgar Parishad in Shaniwar Wada in Pune in 2017, relatives of some of the arrested defendants alleged that the Pune police had not failed to provide the hash value devices that were seized from the home of the accused.
  • The allegations were that the hash value in some cases was provided months later, thus questioning the sanctity of the data on the devices, the defendant alleged.

So when are seized devices returned?

  • It depends on what the investigating agencies find on these devices. In the event that they cannot find any evidence to be used on the charge sheet, the owner of the device or the investigator can apply to the court for the device to be returned to them.
  • If you have important evidence, the person may have to wait until the trial is over or after the court has recorded the evidence before the court will agree to return it to the landlord.
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