SEARCH AND SEIZURE UNDER THE BNSS: FROM PROCEDURAL COMPLIANCE TO DIGITAL PRIVACY GUARDRAILS

I. Introduction:

Search and seizure are among the State’s most coercive investigative powers. A search permits intrusion into a physical or informational space, while seizure places an object, record, or device under continuing governmental control. With an advent of Digital area, this model is complicated due to the presence of Digital evidence, i.e. a small device may contain an extraordinarily large and intimate information regarding a person’s life.

The Bharatiya Nagarik Suraksha Sanhita (BNSS) came in force from July 1^st, 2024, and it largely carries forward the CrPC framework while introducing technology-facing safeguards. Section 94 of BNSS covers electronic communications and devices likely to contain digital evidence; section 105 of BNSS requires audio-video recording of specified searches and seizures; and section 185 of BNSS incorporates audio-video recording into warrantless investigative searches. These provisions strengthen acquisition and documentation, but do not comprehensively regulate the subsequent examination of the so acquired data.

II. The Statutory Architecture of Search and Seizure under the BNSS

Section 94 is significant because it expressly places electronic communications and communication devices within the statutory vocabulary of compelled production. The provision permits a Court to issue a summons, and an officer in charge of a police station to issue a written order, where production is necessary or desirable for an investigation, inquiry, trial, or other proceeding. Yet, section 94 should not be equated with a warrant to undertake an unlimited forensic search of everything contained in a device, as its immediate statutory function is production of records. Where the investigative need can be met by a specified record, a targeted export, or a defined time period, proportionality may favour production over whole device seizure. Section 94 can therefore operate as one component of a least-intrusive-means principle, even though the statute does not expressly use that phrase.

Section 96 provides the principal judicial route to a search warrant, including where material would not be produced under section 94 or a general search is necessary. Section 96(2) permits the Court to restrict the warrant to a particular place or part of a place.

In the digital context, this principle of specificity should extend beyond the physical device to the evidentiary category, relevant period, account, or investigative purpose. Authority to seize a device should not automatically become unrestricted authority to examine every informational compartment within it.

Section 185 permits a warrantless investigative search where there are reasonable grounds to believe that necessary material may be found within the relevant territorial limits and cannot otherwise be obtained without undue delay. The grounds must be recorded in the case diary and, so far as possible, the material/item recovered sought should be specified clearly in the same.

Section 105 complements this by requiring audio-video recording of the search or taking of possession, including preparation and signing of the seizure list, with the recording to be forwarded without delay to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class; the section aims at data governance, as it does not prescribe detailed rules on access, retention, encryption, audit logs, redaction, secondary use, or destruction of unrelated material.

III. Beyond Seizure: Constitutional Limits on Digital Examination, Privacy and Proportionality

The critical distinction in digital searches is between seizure of a device and examination of its contents. A device may be lawfully seized while the scope or method of later examination raises a separate constitutional question. A single device can contain evidence of the offence alongside privileged, confidential, intimate, and third-party information. In this regard, reliance is to be placed on Virendra Khanna judgment, wherein, the Karnataka High Court treated examination of a smartphone or email account as a form of search and held that a trial court could not simply compel access without reasons, while also emphasizing safeguards for securing and documenting forensic handling.

Article 21 serves as the constitutional starting point, placing the protection of life and personal liberty at the heart of the legal framework. In Justice K.S. Puttaswamy (Retd.) v. Union of India, the Supreme Court held that privacy is a constitutionally protected right and identified legality, legitimate State aim, and proportionality as requirements for an invasion of privacy. Consequently, the existence of a statutory search power answers only the first question per se. The method, duration of access must still be justified by the investigative objective.[1] In digital searches, proportionality requires a legitimate investigative objective, a rational connection between the access sought and objective to be achieved, consideration of less intrusive means, and lastly a  balance between intrusion into unrelated information and the evidentiary value sought.[2] Section 94’s targeted production mechanism may therefore, in an appropriate case, be preferable to wholesale forensic access.

Furthermore, District Registrar & Collector v. Canara Bank, further emphasized that privacy concerns can persist even when information is held by a third party and that State search powers cannot become roving inquiries without antecedent justification. The case predates smartphones, but its underlying insight translates directly: physical custody of information by another entity does not automatically extinguish the person’s privacy interest in the information itsel.

The section 105 audio-video requirement is a great anti-fabrication and accountability measure because it creates a reviewable record of the search, seizure list, and witness participation. At the same time, the recording may capture non-accused persons, the layout of a home, medical or financial documents, screens, photographs, passwords, and other sensitive material.The question therefore extends beyond whether the search was recorded to who may access the recording, for what purpose, under what security controls, and for how long. Section 105 addresses transmission, but not the complete lifecycle of such data.

IV. Recent Judicial Developments under the BNSS

In Khushbu W/o Iddrish Khan v. State of Maharashtra, the Bombay High Court considered the search of the petitioners’ residence and seizure of a mobile phone without compliance with the BNSS. While emphasizing section 185 BNSS’s recorded-grounds requirement along with section 105 BNSS safeguards, the Hon’ble Court held the cumulative non-compliance unsustainable, treated the intrusion as a serious invasion of privacy and dignity, and awarded public-law compensation, and directed return of the device subject to continuing legal necessity.

In Sumit Patwal v. State of Uttarakhand, the Court considered preservation and production of call-detail and tower-location records, including data concerning a juvenile victim. It held that privacy is not an automatic bar to relevant electronic.evidence and required balancing fair-investigation and fair-trial interests against third-party privacy. Sealed-cover production, redaction of irrelevant material, and limited inspection were identified as possible safeguards.

In Foundation for Media Professionals v. Union of India, W.P. (Crl.) No. 395 of 2022, the petitioners sought the formulation of safeguards governing the search and seizure of digital devices, particularly in view of the privacy concerns arising from access to and examination of their contents. The proceedings continued into 2026 without the establishment of a comprehensive framework on the merits. The matter thus underscores the continuing constitutional concern as to whether existing investigative powers, in the absence of specific and granular protocols governing digital searches, adequately safeguard the right to informational privacy under Article 21 of the Constitution.

V. Towards a privacy-sensitive BNSS framework

A privacy-sensitive framework should rest on three principles. First, searches should be targeted: a warrant, production order, or warrantless-search record should identify, as far as reasonably possible, the offence, relevant period, account, application, data category, or other evidentiary object sought. Specificity also makes later judicial review meaningful.

Second, non-relevant data should be segregated as early as feasible. Where extraction captures information outside the investigative purpose, controlled handling, redaction, sealed production, and limited inspection should prevent unnecessary circulation.

Third, remedies should correspond to the nature of the breach. Failure to record may undermine the prosecution’s account; failure to record statutory grounds may affect the legality of a warrantless search; and overbroad forensic examination may justify exclusion, redaction, restricted use, return, destruction, or other tailored relief. The remedy should address the privacy injury and evidentiary prejudice rather than treat every irregularity identically.

VI. Conclusion

The BNSS marks an important transition by recognizing the growing role of electronic evidence and digitally recorded investigative processes. Sections 94 and 105 of BNSS, are particularly significant: section 94 recognizes digital devices and electronic communications as objects of compelled production, while section 105 makes audio-video recording integral to search and seizure. Section 185 also requires recorded grounds for warrantless investigative searches. Although these provisions strengthen transparency yet they do not constitute a complete code for digital searches.

Going Forward, the need of the hour is a durable constitutional framework that moves beyond the binary question of whether the State may search or seize a digital device, towards a more nuanced inquiry into the permissible scope and limits of such powers. Such a framework must delineate, with precision, the categories of data that may be accessed, the extent of examination permitted, the authorities competent to undertake such examination, the purposes for which the data may be used, the duration for which it may be retained, and the remedies available in the event of a breach. The objective is not to impede legitimate investigation, but to ensure that the exercise of investigative powers remains proportionate, purpose-bound and subject to meaningful safeguards. Ultimately, the constitutional challenge lies in ensuring that the lawful authority to search a digital device does not become an unrestricted licence to intrude into the entirety of an individual’s private life, thereby preserving the sanctity of informational privacy as an indispensable facet of the right to life and personal liberty under Article 21.

[1] Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, §§ 94, 96, 103, 105, 106, 185 (India).

[2] Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 94; id. §§ 105, 185.

[3] Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353, 437-40.

[4] Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 96(1)-(2).

[5] District Registrar & Collector v. Canara Bank, (2005) 1 SCC 496, 508-09.

[6] Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 185(1)-(4).

[7] Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 105.

[8] See Virendra Khanna, AIR ONLINE 2021 KAR 525.

[9] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, 263-64.

[10] Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353, 437-40; Puttaswamy, (2017) 10 SCC at 263-64.

[11] District Registrar & Collector v. Canara Bank, (2005) 1 SCC 496, 508-09.

[12] Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 105; Shadab v. State of U.P., 2026:AHC:260 (All. H.C. Jan. 5, 2026).

[13] Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 105.

[14] Khushbu W/o Iddrish Khan v. State of Maharashtra, Crim. W.P. No. 128 of 2026 (Bom. H.C. July 3, 2026).

[15] Sumit Patwal v. State of Uttarakhand, WPCRL No. 1247 of 2026, 2026:UHC:5951 (Uttarakhand H.C. July 17, 2026).

[16] Foundation for Media Professionals v. Union of India, W.P. (Crl.) No. 395 of 2022.

[17] See BNSS §§ 94, 96, 185; Canara Bank, (2005) 1 SCC 496, 508-09.

[18] Khushbu W/o Iddrish Khan, Crim. W.P. No. 128 of 2026 (Bom. H.C. July 3, 2026); State of Punjab v. Baldev Singh, (1999) 6 SCC 172 (discussing statutory search safeguards and their consequences in the NDPS context).

The authors of the article are- Mr. Rahul Jain, Partner; Mr. Raghav Sachdev, Associate- II; and Ms. Bushra Alam, Associate- II.