prosecution under the bis act, 1986 · prosecution under the bis act, 1986 a ... • scheme of...

Prosecution Under Prosecution Under The BIS Act, 1986The BIS Act, 1986

aPresentation

byDr. K.P. Singh, IPS

IG, Haryana Police AcademyMadhuban

4, February, 2009

NITSBIS, Noida

Lecture SchemeLecture Scheme

•• OFFENCESOFFENCES•• PUNISHMENTPUNISHMENT•• SCHEME OF PROSECUTIONSCHEME OF PROSECUTION•• INVESTIGATION OF OFFENCESINVESTIGATION OF OFFENCES•• POWERS OF INVESTIGATING OFFICERPOWERS OF INVESTIGATING OFFICER•• COLLECTION OF INFORMATIONCOLLECTION OF INFORMATION•• CONFIDENTIALITY OF INFORMATIONCONFIDENTIALITY OF INFORMATION

…Contd

Lecture SchemeLecture Scheme

•• SEARCH & SEIZURESEARCH & SEIZURE•• COLLECTION OF EVIDENCECOLLECTION OF EVIDENCE•• ADMISSIBLE EVIDENCE ADMISSIBLE EVIDENCE •• TRIALTRIAL•• PROTECTION FOR ACTION TAKENPROTECTION FOR ACTION TAKEN

IN GOOD FAITHIN GOOD FAITH•• DIFFICULTIESDIFFICULTIES

OffencesOffencesSection 11Section 11

►► No person shall use, in relation to any No person shall use, in relation to any article or process, or in the title of article or process, or in the title of any any patentpatent, or in any , or in any trade marktrade mark or or design the design the Standard MarkStandard Mark or any or any colourablecolourable imitationimitation thereofthereof, except , except under a under a licencelicence..

►► No person shall, notwithstanding that No person shall, notwithstanding that he has been granted a he has been granted a licencelicence, use in , use in relation to any article or process the relation to any article or process the Standard Mark or any Standard Mark or any colourablecolourableimitation thereof unless such imitation thereof unless such article article or process conforms to the Indian or process conforms to the Indian Standard. Standard.

Section 12Section 12No person shall, except in such cases and No person shall, except in such cases and under such conditions as may be under such conditions as may be prescribed, use without the previous prescribed, use without the previous permission of the Bureau,permission of the Bureau,--

a)a) -- any any name which so nearly resembles the name which so nearly resembles the name of the Bureauname of the Bureau as to deceive or likely as to deceive or likely to deceive the public or which contains the to deceive the public or which contains the expression expression ““Indian StandardIndian Standard”” or any or any abbreviation thereof; orabbreviation thereof; or

b)b) -- any mark or trade mark in relation to any any mark or trade mark in relation to any article or process containing the article or process containing the expressions expressions ““ Indian StandardIndian Standard”” or or ““Indian Indian Standard SpecificationStandard Specification”” or any abbreviation or any abbreviation of such expressions. of such expressions.

OffencesOffences

OffencesOffencesSectionSection--1414

If the If the Central GovernmentCentral Government, after , after consulting the Bureau, is of the consulting the Bureau, is of the opinion that it is necessary of opinion that it is necessary of expedient so to do, expedient so to do, in the public in the public interest,interest, it may, by order published in it may, by order published in the Official Gazette,the Official Gazette,--notify any article or process of any notify any article or process of any scheduled industry which shall scheduled industry which shall conform to the Indian Standard; andconform to the Indian Standard; andDirect the use of the Direct the use of the Standard Mark Standard Mark under a under a licencelicence as compulsory on as compulsory on such articlesuch article or process.or process.

OffencesOffencesSectionSection--1515

(1)(1) The Bureau may, by The Bureau may, by order, order, grant, renew, suspend or grant, renew, suspend or cancel a cancel a licencelicence in such manner in such manner as may be determined by as may be determined by regulations.regulations.

(2)(2) The grant or renewal of the The grant or renewal of the licencelicence under subunder sub--section (1) section (1) shall be subject to such shall be subject to such conditions and on payment of conditions and on payment of such feessuch fees as may be as may be determined by regulations. determined by regulations.

PunishmentPunishmentSection Section --3333

►► Any person who contravenes the Any person who contravenes the provisions of provisions of section 11, or section 12 section 11, or section 12 or section 14 or section 15or section 14 or section 15 shall be shall be punishable with imprisonment for a punishable with imprisonment for a term which may extend to term which may extend to one year or one year or with fine may extend to fifty thousand with fine may extend to fifty thousand rupees, or with both.rupees, or with both.

►► Any court trying a contravention under Any court trying a contravention under subsub--section (1) may direct that any section (1) may direct that any property in respect of which the property in respect of which the contravention has taken place shall be contravention has taken place shall be forfeited to the Bureauforfeited to the Bureau. .

Scheme of ProsecutionScheme of ProsecutionSectionSection--3434

►► No court shall take cognizance of any No court shall take cognizance of any offence punishable under this Act save offence punishable under this Act save on a complainton a complaint made by or under the made by or under the authority of the Government or authority of the Government or BureauBureau or by any officer empowered or by any officer empowered in this behalf by the Government or the in this behalf by the Government or the Bureau, or Bureau, or any consumerany consumer or any or any associationassociation recognized in this behalf recognized in this behalf by the Central of State Government.by the Central of State Government.

Prosecution Prosecution for Criminal offencesfor Criminal offences

FIR case (S. 154FIR case (S. 154--173 173 Cr.PCCr.PC))Complaint Case (S. 200Complaint Case (S. 200--203 203 Cr.PCCr.PC))

Prosecution Prosecution for Criminal offencesfor Criminal offences

Section Section –– 44

•• All offence under the Indian Penal Code shall All offence under the Indian Penal Code shall be investigated, inquired into, tried, and be investigated, inquired into, tried, and otherwise dealt with according to the otherwise dealt with according to the provisions of the provisions of the Cr.PCCr.PC..

•• All offences under any other law shall be All offences under any other law shall be investigated, inquired into, tried, and investigated, inquired into, tried, and otherwise dealt with according to the otherwise dealt with according to the Cr.PCCr.PC, , but subject to any enactment for the time but subject to any enactment for the time being in force regulating the manner or place being in force regulating the manner or place of investigating, inquiring into, trying or of investigating, inquiring into, trying or otherwise dealing with such offences. otherwise dealing with such offences.

Investigation of Offences Investigation of Offences SectionSection-- 2525

(1) The Bureau may appoint as many (1) The Bureau may appoint as many inspecting officers as may be inspecting officers as may be necessary for the purpose of necessary for the purpose of inspecting whether any article or inspecting whether any article or process in relation to which the process in relation to which the Standard Mark has been used Standard Mark has been used conforms to the Indian Standard or conforms to the Indian Standard or whether the Standard Mark has been whether the Standard Mark has been properly used in relation to any article properly used in relation to any article or process with or without or process with or without licencelicence, and , and for the purpose of performing such for the purpose of performing such other functions as may assigned to other functions as may assigned to them.them.

…Contd

Investigation of OffencesInvestigation of OffencesPowers of Inspecting OfficersPowers of Inspecting Officers

S.25(2) S.25(2) --Subjects to any rules made under Subjects to any rules made under this Act, an inspecting officer shall this Act, an inspecting officer shall have power tohave power to--

•• inspect any operation carried on in inspect any operation carried on in connection with any article or process connection with any article or process in relation to which the Standard Mark in relation to which the Standard Mark has been used; andhas been used; and

•• take samples of any article or of any take samples of any article or of any material or substances used in any material or substances used in any article or process, in relation to which article or process, in relation to which the Standard Mark has been used.the Standard Mark has been used.

…Contd

(3)(3) Every inspecting officer shall be Every inspecting officer shall be furnished by the Bureau with a furnished by the Bureau with a certificate of appointment as an certificate of appointment as an inspecting officer and the certificates inspecting officer and the certificates shall, on demand, be produced by the shall, on demand, be produced by the inspecting officer. inspecting officer.

InvestigationInvestigation

Section 2(H)Section 2(H)

““investigationinvestigation”” includes all the includes all the proceedings under this Code for proceedings under this Code for the collection of evidence the collection of evidence conducted by a police officer or conducted by a police officer or by any person (other than a by any person (other than a Magistrate) who is authorized by Magistrate) who is authorized by a Magistrate in this behalf; a Magistrate in this behalf;

Investigation Investigation Para 6.10Para 6.10 of Enforcement of Enforcement

ManualManual1.1. On detection of the violation, immediate action On detection of the violation, immediate action

shall be taken by shall be taken by BO to initiate investigations BO to initiate investigations for collection of the necessary evidence for the for collection of the necessary evidence for the purpose of taking purpose of taking prosecutiveprosecutive actionaction. An . An attempt shall be made to collect the evidence, attempt shall be made to collect the evidence, documentary and material, with best possible documentary and material, with best possible linkage between the two, to establish the linkage between the two, to establish the violation and to pin down the person who has violation and to pin down the person who has actually contravened the Law. The evidence actually contravened the Law. The evidence must be collected without and delay to avoid must be collected without and delay to avoid losing it. losing it.

2.2. The onus of proving the violation lies with the The onus of proving the violation lies with the prosecution. prosecution. The evidence, therefore has to be The evidence, therefore has to be legally tenablelegally tenable. .

Inquiry Inquiry

Section 2(G)Section 2(G)

““inquiryinquiry”” means every means every inquiry, other than a trial, inquiry, other than a trial, conducted under this Code conducted under this Code by a Magistrate or Court; by a Magistrate or Court;

ComplaintComplaint

Section 2(D)Section 2(D)

““complaintcomplaint”” means any allegation means any allegation made or in writing to a Magistrate, made or in writing to a Magistrate, with a view to his taking action with a view to his taking action under this Code, that some person, under this Code, that some person, whether known or unknown, has whether known or unknown, has committed an offence, committed an offence, but does but does not include a police report.not include a police report.

Inquiry into Complaint Inquiry into Complaint

Section 202(I)Section 202(I)

Any Magistrate, on receipt of a complaint of Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take an offence of which he is authorized to take cognizance or which has been made over to cognizance or which has been made over to him under section 192, may, if he thinks fit, him under section 192, may, if he thinks fit, postpone the issue of process against the postpone the issue of process against the accused, and accused, and either inquire into the case either inquire into the case himself or direct an investigation to be himself or direct an investigation to be made by a police officer or by such other made by a police officer or by such other person as he thinks fitperson as he thinks fit, for the purpose of , for the purpose of deciding whether or not there is sufficient deciding whether or not there is sufficient ground for proceeding. ground for proceeding.

…Contd

(3)(3) If an investigation under If an investigation under subsub--section (1) is made by a section (1) is made by a person not being a police person not being a police officer, he shall have for that officer, he shall have for that investigation all the powers investigation all the powers conferred by this code on an conferred by this code on an officer in charge of a police officer in charge of a police station station except the power to except the power to arrest without warrantarrest without warrant..

Steps in InvestigationSteps in Investigation

a)a) To ascertain and record the facts To ascertain and record the facts concerning the commission of concerning the commission of crime.crime.

b)b) To identify criminal and his To identify criminal and his accomplices if any;accomplices if any;

c)c) To arrest and apprehend criminals;To arrest and apprehend criminals;d)d) To secure, preserve and evaluate To secure, preserve and evaluate

evidence ; andevidence ; ande)e) To put evidence in court in a legal To put evidence in court in a legal

and presentable form. and presentable form.

…Contd

Steps in Inquiry Steps in Inquiry 1) Collection of information1) Collection of information2) Planning raids2) Planning raids3) Police help3) Police help4) Preservation of crime scene4) Preservation of crime scene5) Recording of crime scene5) Recording of crime scene6) Sketching the crime scene6) Sketching the crime scene7) Photograph of the crime scene7) Photograph of the crime scene8) Search of Evidence8) Search of Evidence9) Seizure of exhibits9) Seizure of exhibits10) Recording of documentary/oral evidence10) Recording of documentary/oral evidence11) Drafting of Complaints 11) Drafting of Complaints 12) Administrative/legal sanction/approval12) Administrative/legal sanction/approval13) Filing of complaint to the court13) Filing of complaint to the court14) Follow up action14) Follow up action

Collection of InformationCollection of Information1)1) ConsumerConsumer2)2) Consumer AssociationConsumer Association3)3) NonNon-- Govt. OrganizationGovt. Organization4)4) InformersInformers5)5) Departmental surveys/InspectionsDepartmental surveys/Inspections6)6) Competitors in BusinessCompetitors in Business7)7) Business FirmsBusiness Firms8)8) State and Centre intelligence agenciesState and Centre intelligence agencies9)9) State PoliceState Police10)10) Anonymous CallerAnonymous Caller11)11) Departmental Employees Departmental Employees 12)12) News papers/JournalsNews papers/Journals13)13) Exhibitions/displays in market Exhibitions/displays in market 14)14) Raids by sister agenciesRaids by sister agencies15)15) Consumer Courts Consumer Courts

Confidentiality of Information Confidentiality of Information

Section 30Section 30

Any information obtained by an Any information obtained by an inspecting officer or the Bureau from inspecting officer or the Bureau from any statement made or information any statement made or information supplied or any evidence given or from supplied or any evidence given or from inspection made under the provisions of inspection made under the provisions of this Act shall be treated as confidentialthis Act shall be treated as confidential::

Provided that nothing in this section Provided that nothing in this section shall apply to the disclosure of any shall apply to the disclosure of any information for the purpose of information for the purpose of prosecution under this Act.prosecution under this Act.

Right to Information and Right to Information and Confidentiality of InformationConfidentiality of Information

SectionSection-- 8(G)8(G)Information, the disclosure of Information, the disclosure of which would endanger the life or which would endanger the life or physical safety of any person or physical safety of any person or identify the source of information identify the source of information or assistance given in confidence or assistance given in confidence for law enforcement or security for law enforcement or security purposes; purposes;

Planning RaidsPlanning Raids•• Credibility of InformationCredibility of Information•• RaccyRaccy•• Composition of Raiding PartyComposition of Raiding Party•• Time of RaidTime of Raid•• Confidentiality Confidentiality •• TransportTransport•• Administrative approval Administrative approval •• Fixing targets for member of the raiding partyFixing targets for member of the raiding party•• Police help for protectionPolice help for protection•• Disclose identity and authority Disclose identity and authority •• Quick actionQuick action•• Avoid altercation/discussion Avoid altercation/discussion •• Surveillance over surroundingsSurveillance over surroundings•• Timely retreat Timely retreat •• Report to the PoliceReport to the Police•• Report to the Seniors Report to the Seniors •• Acknowledgement of help Acknowledgement of help

Police HelpPolice Help

•• Section 23 Police Act, 1861Section 23 Police Act, 1861•• Written request for Police helpWritten request for Police help•• Confidentiality of RaidConfidentiality of Raid•• Written order for the S.H.O for helpWritten order for the S.H.O for help•• CoCo-- ordination with the S.P.ordination with the S.P.•• Acknowledgement Acknowledgement

Preservation Preservation of of

Crime sceneCrime scene

Recording Recording of of

Crime sceneCrime scene

Sketching Sketching the the

crime scenecrime scene

Photograph Photograph of of

crime scenecrime scene

Search for EvidenceSearch for EvidenceSection Section --2626

►► If the inspecting officer has reason to If the inspecting officer has reason to believe that any article or process in believe that any article or process in relation to which the contravention of relation to which the contravention of section 11 or section 12 has taken place section 11 or section 12 has taken place are secreted in any place, premises or are secreted in any place, premises or vehicles, he may enter into and search vehicles, he may enter into and search such place, premises or vehicle for such such place, premises or vehicle for such article or process.article or process.

►► Where, as a result of any search made Where, as a result of any search made under subunder sub-- section (1), any article or section (1), any article or process has been found in relation to which process has been found in relation to which contravention of section 11 or section 12 contravention of section 11 or section 12 has taken place, he may seize such article has taken place, he may seize such article and other things which, in his opinion, will and other things which, in his opinion, will be useful for, or relevant to, any be useful for, or relevant to, any proceeding under this Act:proceeding under this Act:

…Contd

Provided that where it is not practicable Provided that where it is not practicable to seize any such article or thing, the to seize any such article or thing, the inspecting officer may serve on the inspecting officer may serve on the owner an order that he shall not owner an order that he shall not remove, part with, or otherwise deal remove, part with, or otherwise deal with, the article or things except with with, the article or things except with the previous permission of the the previous permission of the inspecting officer.inspecting officer.

(3) The provision of the (3) The provision of the Code of Code of Criminal Procedure,Criminal Procedure, 1973, relating to 1973, relating to searches and seizures shall, so far as searches and seizures shall, so far as may be, apply to every search or seizure may be, apply to every search or seizure made under this section. made under this section.

Personal Search Personal Search SectionSection-- 5151

►► Whenever a person is arrested by a Whenever a person is arrested by a police office under a warrant which police office under a warrant which does not provide for the taking of does not provide for the taking of bail, or under a warrant which bail, or under a warrant which provides for the taking of bail but provides for the taking of bail but the person arrested cannot furnish the person arrested cannot furnish bail, andbail, andwhenever a person is arrested whenever a person is arrested without warrant, or by a private without warrant, or by a private person under a warrant and cannot person under a warrant and cannot legally be admitted to bail or is legally be admitted to bail or is unable to furnish bail.unable to furnish bail.

……ContdContd

the officer making the arrest or, when the officer making the arrest or, when the arrest is made by a private person, the arrest is made by a private person, the police officer to whom he makes the police officer to whom he makes over the person arrested, any search over the person arrested, any search such person, and place in safe custody such person, and place in safe custody all articles, other than necessary all articles, other than necessary wearingwearing--apparel, found upon him and apparel, found upon him and where any article is seized from the where any article is seized from the arrested person, a receipt showing the arrested person, a receipt showing the articles taken in possession by the police articles taken in possession by the police officer shall be given to such person.officer shall be given to such person.

(2) Whenever it is necessary to cause a (2) Whenever it is necessary to cause a female to be searched, the search shall female to be searched, the search shall be made by another female with strict be made by another female with strict regard to decency. regard to decency.

Search of Premises Search of Premises SectionSection--100100

(1)(1)Whenever any place liable to search or Whenever any place liable to search or inspection under this Chapter is closed, inspection under this Chapter is closed, any person residing in, or being in any person residing in, or being in charge of, such place, shall, on demand charge of, such place, shall, on demand of the officer or other person executing of the officer or other person executing the warrant, and on production of the the warrant, and on production of the warrant, allow him free ingress thereto, warrant, allow him free ingress thereto, and afford all reasonable facilities for a and afford all reasonable facilities for a search therein.search therein.

(2)(2) If ingress into such place cannot be so If ingress into such place cannot be so obtained, the officer or other person obtained, the officer or other person executing the warrant may proceed in executing the warrant may proceed in the manner provided by subthe manner provided by sub--section (2) section (2) of section 47.of section 47.

…contd


(3) Where any person in or about such place is (3) Where any person in or about such place is reasonably suspected of concealing about his reasonably suspected of concealing about his person any article for which search should be person any article for which search should be made, such person may be searched and if such made, such person may be searched and if such person is a woman, the search shall be made by person is a woman, the search shall be made by another woman with strict regard to decency another woman with strict regard to decency

(4) Before making a search under this Chapter, (4) Before making a search under this Chapter, the officer or other person about to make it the officer or other person about to make it shall call upon two or more independent and shall call upon two or more independent and respectable inhabitants of the locality in which respectable inhabitants of the locality in which the place to be searched is situate or of any the place to be searched is situate or of any other locality if no such inhabitant of the said other locality if no such inhabitant of the said locality is available or is willing to be a witness locality is available or is willing to be a witness to the search, to attend and witness the search to the search, to attend and witness the search and may issue an order in writing to them or and may issue an order in writing to them or any of them so to do. any of them so to do. …contd


(5) The search shall be made in their presence, (5) The search shall be made in their presence, and a list of all things seized in the course of and a list of all things seized in the course of such search and of the places in which they such search and of the places in which they are respectively found shall be prepared by are respectively found shall be prepared by such officer or other person and signed by such officer or other person and signed by such witnesses; but no person witnessing a such witnesses; but no person witnessing a search under this section shall be required to search under this section shall be required to attend the Court as a witness of the search attend the Court as a witness of the search unless specially summoned by it. unless specially summoned by it.

(6) The occupant of the place searched, or some (6) The occupant of the place searched, or some person in his behalf, shall, in every instance, person in his behalf, shall, in every instance, be permitted to attend during the search, and be permitted to attend during the search, and a copy of the list prepared under this section, a copy of the list prepared under this section, signed by the said witnesses, shall be signed by the said witnesses, shall be delivered to such occupant or person. delivered to such occupant or person.

…contd


(7) When any person is searched under (7) When any person is searched under subsub--section (3), a list of all things taken section (3), a list of all things taken possession of shall be prepared, and a possession of shall be prepared, and a copy thereof shall be delivered to such copy thereof shall be delivered to such person. person.

(8) Any person who, without reasonable (8) Any person who, without reasonable cause, refuse or neglects to attend and cause, refuse or neglects to attend and witness a search under this section; witness a search under this section; when called upon to do so by an order in when called upon to do so by an order in writing delivered or tendered to him, writing delivered or tendered to him, shall be deemed to have committed an shall be deemed to have committed an offence under section 187 of the Indian offence under section 187 of the Indian Penal Code (45 of 1860)Penal Code (45 of 1860)

SearchSearchSection 47 (2)Section 47 (2)

If ingress to such place cannot be obtainedIf ingress to such place cannot be obtainedunder subunder sub--section (1), it shall be lawful in section (1), it shall be lawful in any case for a person acting under a warrant any case for a person acting under a warrant and in any case in which a warrant may and in any case in which a warrant may issue, but cannot be obtained without issue, but cannot be obtained without affording the person to be arrested an affording the person to be arrested an opportunity of escape, for a police officer to opportunity of escape, for a police officer to enter such place and search therein, and enter such place and search therein, and in in order to effect an entrance into the place, to order to effect an entrance into the place, to break open any outer or inner door or break open any outer or inner door or window of any house or placewindow of any house or place, whether that , whether that of the person to be arrested or of any other of the person to be arrested or of any other person, if after notification of his authority person, if after notification of his authority and purpose, and demand of admittance and purpose, and demand of admittance duly made, he cannot otherwise obtain duly made, he cannot otherwise obtain admittance: admittance:

Search Search Section 187 IPCSection 187 IPC

Omission to assist servant whenOmission to assist servant whenbound by law to give assistancebound by law to give assistance

Whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, Intentionally omits to give such assistance,shall be punished with simple imprisonmentfor a term which may extend to onemonth, or with fine which may extend to two hundred rupees, or with both: (Non Cognizance , Bailable)

Search Warrant Search Warrant

Section 93(1) Section 93(1)

C.C. where the Court considers that the where the Court considers that the purposes of any inquiry, trial or purposes of any inquiry, trial or other proceeding under this Code other proceeding under this Code will be served by a general search or will be served by a general search or inspection, inspection,

-- it may issue a search it may issue a search ––warrant; and warrant; and the person to whom such warrant is the person to whom such warrant is directed, may search or inspect in directed, may search or inspect in accordance therewith and the accordance therewith and the provisions hereinafter contained.provisions hereinafter contained.

Search by Police OfficerSearch by Police OfficerSection 165Section 165

(1)(1) Whenever an officerWhenever an officer--inin--charge of a police charge of a police station or a police officer making an station or a police officer making an investigation has investigation has reasonable grounds for reasonable grounds for believingbelieving that anything necessary for the that anything necessary for the purposes of an investigation into any offence purposes of an investigation into any offence which he is authorized to investigate may be which he is authorized to investigate may be found in any place within the limits of the found in any place within the limits of the police station of which he is police station of which he is ––charge, or to charge, or to which he is attached, and that such thing which he is attached, and that such thing cannot in his opinion be otherwise obtained cannot in his opinion be otherwise obtained without undue delay, such officer may, without undue delay, such officer may, after after recording in writing the grounds of his beliefrecording in writing the grounds of his beliefand specifying in such writing, so far as and specifying in such writing, so far as possible, the thing for which search is to be possible, the thing for which search is to be made, made, search or cause search to be madesearch or cause search to be made, , for such thing in any place within the limits for such thing in any place within the limits of such station. of such station.

Principles of InvestigationPrinciples of Investigation

•• Patience Patience •• PreparationPreparation•• ProcedureProcedure•• ProsecutionProsecution•• PairaviPairavi•• ProtectionProtection

Collection of Evidence Collection of Evidence

…contd

Evidence

Section – 3Evidence means and includes

(i) Oral evidence i.e. statement made by a witness in

relation to matter before the court.

(ii) Documentary evidence i.e. documents produced

before the court for inspection.

> The definition is inclusive and not complete. There are other things also to which the court take notice in the court proceedings like Case Property, Question asked by the judge, Report of local commission etc.

Evidentiary Value

Means value attached to a thing by the court as an evidence. Court can attach value to a thing as an evidence only when

1. It is Relevant (R)

2. It is Admissible (A)

3. It is given by a Witness (W)

What is Relevant ?

Relevant means(i) Connected and

(ii) Admissible

• All relevant facts may not be admissible

• A relevant fact may not be admissible by reason of

i) Public Policy (Privileged Communication)

ii) Constitutional Validity (Article 20 (3)

iii) Legal declarations (S. 24 & 25 IEA)

• Only those relevant facts are admissible which are declared so in sections from S.5 – 55 of IEA

Witness

(i) Competent to depose (Insanity etc.)

(ii) Can understand the question and give its rational answer.

Fundamental Rules of Evidence

(i) Best evidence should be given in each case. Direct

evidence is the best evidence.

(i) Evidence must be confined to relevant fact

(ii) Hearsay evidence should not be admitted.

but

There is one exception to the above 3 rules and i.e. expert opinion u/s 45 IEA

Expert’s Opinion

S. 45 When opinion of third person is relevant

When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impression, the opinion upon that point, of persons specially skilled in such foreign law, science or art or in questions as to impressions are relevant facts. Such person are called experts.

Expert’s Opinion S. 293 Cr.PC

The report of certain Govt. Scientific experts may be used as evidence in proceeding under the Cr.PC. Such report is admissible as evidence per se. The Govt. Scientific expert may not be called in the court for deposition. He may depute his assistant also to give evidence in the court on his report unless specifically directed by the court for personal appearance in the court for deposition. Such government scientific experts are listed in section 293 (4) and they are -

(a) Chemical examiner or Asstt. Chemical examiner to Govt.

(b) Chief Inspector of Explosive

(c) Director FPB

(d) Director, Haffkeine Institute Bombay

(e) Director, DD, AD of CFSL or State FSL

(f) Serologist to the Govt.

It does not mean that only above named experts are the only experts. It only means that their evidence/report is admissible per se in the court. Other experts have to come personally to depose in the court and their report per se is not admissible.

Reports of certain Govt. Scientific experts admissible per se

Who is an expert ?

An expert is one who has acquired special knowledge, skill or experience in any science, art, trade or profession; such knowledge may have been acquired by practice, observation or careful studies.

Who is an expert ?

1. Collector Jabalpur v. A.Y. Jahangir (AIR) 1971 MP 32.

A person having special knowledge of market

value of land by experience is an expert.

2. Section 53 Cr.PC – A registered medical

practiceinner (R.M.P.) is an expert

Evidentiary Value of Expert Opinion

1. Las society of India V Fertilize & Chemicals Travancore Ltd, (AIR 1994 Ker 308)

Expert opinion is not necessarily binding on the court

2. U. Jhansi Lakshmi Bai V J Venkatesware Rao (1993) 3 ALT 446

Mere opinion of the expert can not over ride the positive evidence of the attesting witness

3. Forest Range Officer V P. Mohammad Ali (AIR 1994 SC 120)

Expert opinion was only the opinion evidence. It is weak evidence. It require corroboration. It does not help court in interpretation

…contd

4. S Gopal Reddy V State of AP (1996) 4 SCC 596

Evidence of an expert is a weak type of evidence and is not a conclusive proof. It is not safe to rely upon the same without seeking corroborate

5. When there is contradiction between oral evidence and expert opinion, the oral evidence would prevail

6. Expert opinion requires corroboration to form the basis of conviction

Evidentiary Value of Expert Opinion

Pre requisite of expert evidence

Before expert opinion can be admitted, two things must be proved (i) Subject is such that expert opinion is necessary i.e. a subject matter of science, art, foreign law, identification of handwriting and finger print etc as defined in S. 45 IEA

(ii) Witness in question is an expert

(Parat V Bissessar ILR 39 Cal 245)

Search and Seizure Search and Seizure

Para 6.10.2.3.Para 6.10.2.3.

Procedure/Guidelines for Procedure/Guidelines for Actual Process of Search Actual Process of Search and Seizureand Seizure

Protection for action taken Protection for action taken in good faithin good faith

SectionSection--31 31 All members, officers and other All members, officers and other employees of the Bureau shall be employees of the Bureau shall be deemed, when acting or deemed, when acting or purporting to act in pursuance of purporting to act in pursuance of any of the provisions of this Act, any of the provisions of this Act, to be public servants within the to be public servants within the meaning of section 21 the Indian meaning of section 21 the Indian Penal Code.Penal Code.

…Contd

No suit, prosecution or other legal No suit, prosecution or other legal proceeding shall lie against the proceeding shall lie against the Government or any officer of the Government or any officer of the Government or any member, officer Government or any member, officer or other employee of the Bureau for or other employee of the Bureau for anything which is in good faith anything which is in good faith done or intended to be done under done or intended to be done under this Act or the rules or regulations this Act or the rules or regulations made there under. made there under.

TrialTrial

SectionSection-- 3434

(2)(2) No court inferior to that of a No court inferior to that of a Metropolitan MagistrateMetropolitan Magistrate or a or a Judicial Magistrate of the Judicial Magistrate of the first classfirst class specially empowered specially empowered in this behalf shall try offence in this behalf shall try offence punishable under this Act.punishable under this Act.

Difficulties Difficulties SectionSection--3737

The Central Government may, by The Central Government may, by notification in the Official Gazette, notification in the Official Gazette, make rules for carrying out the make rules for carrying out the purpose of this Act.purpose of this Act.

(a)(a) the conditions subject to which the conditions subject to which inspecting officer may exercise his inspecting officer may exercise his powers under subpowers under sub--section (2) of section (2) of section 25;section 25;

(b)(b) any other matter which is to be, or any other matter which is to be, or may be, prescribed, or in respect of may be, prescribed, or in respect of which provision is to be, or may be, which provision is to be, or may be, made by rules. made by rules.

Cheating Cheating Section 415Section 415

Whoever, by deceiving any person Whoever, by deceiving any person fraudulently or dishonestly induces the fraudulently or dishonestly induces the person so deceived to deliver any property person so deceived to deliver any property to any person, or to consent that any to any person, or to consent that any person shall retain any property, or person shall retain any property, or intentionally induces the person so deceived intentionally induces the person so deceived to do or omit to do anything which he to do or omit to do anything which he would not do or omit if he were not so would not do or omit if he were not so deceived, and which act of omission causes deceived, and which act of omission causes or is likely to cause damage or harm to that or is likely to cause damage or harm to that person in body, mind, reputation or person in body, mind, reputation or property, is said to property, is said to ““cheatcheat””ExplanationExplanation-- A dishonest concealment of A dishonest concealment of facts is a deception within the meaning of facts is a deception within the meaning of this sectionthis section. .


Illustration Illustration

(b)(b) A, by putting a counterfeit mark A, by putting a counterfeit mark on a article, intentionally deceives Z on a article, intentionally deceives Z into a belief that article was made by into a belief that article was made by a certain celebrated manufacturer, a certain celebrated manufacturer, and thus dishonesty induces Z to buy and thus dishonesty induces Z to buy and pay for the article . A cheats. and pay for the article . A cheats. (c)(c) A, by exhibiting to Z a false A, by exhibiting to Z a false sample of an article, intentionally sample of an article, intentionally deceives Z into believing that the deceives Z into believing that the article corresponds with the sample, article corresponds with the sample, and thereby dishonestly induces Z to and thereby dishonestly induces Z to buy and pay for the article. A cheats. buy and pay for the article. A cheats.

Other OffencesOther Offences

•• Section 467 IPC (Forgery) Section 467 IPC (Forgery) •• Section 471 IPC Section 471 IPC

(Using forged documents) (Using forged documents) •• Copy Right ActCopy Right Act

Section 38 Cr.P.CSection 38 Cr.P.C

When a warrant is directed to a When a warrant is directed to a person other than a police person other than a police officer, any other person may aid officer, any other person may aid in the execution of such warrant, in the execution of such warrant, if the person to whom the if the person to whom the warrant is directed be near at warrant is directed be near at hand and acting in the execution hand and acting in the execution of the warrant. of the warrant.

Notice for SearchNotice for SearchFORM No. 25.23 (1) (a)FORM No. 25.23 (1) (a)

________ Police Station ________ District Notice of ________ Police Station ________ District Notice of search in the case of __________ FIR No. __________ search in the case of __________ FIR No. __________ dated ______ offencedated ______ offence

Section 165/166 Cr.P.CSection 165/166 Cr.P.C

44332211

Reasons for which Reasons for which the search to be the search to be mademade

Articles to be Articles to be searched forsearched for

Name, parentage, Name, parentage, residence and caste residence and caste of the person to be of the person to be searched searched

Date and Place of Date and Place of searchsearch

Sd/-Signature of office-in-charge

Endorsement in case the officer causing search to made is unable to conduct on person

I hereby authorize _________________ to conduct the search as I am unable to conduct it in person for the following reasons:-

Signature of Investing Officer.

Order under section 100 (4) Cr.P.C, requiring attendance Order under section 100 (4) Cr.P.C, requiring attendance of a witness at a searchof a witness at a search

FIR No. ____ dated ________ Section ______FIR No. ____ dated ________ Section ______Police Station ________Police Station ________To _____________To _____________

WHEREAS it is necessary to make a search in the aboveWHEREAS it is necessary to make a search in the above

Mentioned case of the house/shop of _____ situated ____ in Mentioned case of the house/shop of _____ situated ____ in ______ therefore I, ______ Call upon you to attend at the ______ therefore I, ______ Call upon you to attend at the aforesaid _____ at _________ to witness the search.aforesaid _____ at _________ to witness the search.

_______________________________________________ _______________________________________________ N.B.N.B.-- Failure to attend without reasonable cause is punishable Failure to attend without reasonable cause is punishable

under section 187, IPC. under section 187, IPC.

DatedDatedSignature and Signature and designation of the officer designation of the officer conducting the search. conducting the search.

Form of search list prescribed by section 100 Cr.P.C.Form of search list prescribed by section 100 Cr.P.C.FORM No. 25.23 (1) (c)FORM No. 25.23 (1) (c)

FIR No.FIR No. Dated Dated Police StationPolice Station

The house of ______, son of _______ caste _______ resident of viThe house of ______, son of _______ caste _______ resident of village llage _______, was searched in the presence of the under mentioned wit_______, was searched in the presence of the under mentioned witness ness and the following articles were recovered and taken into possessand the following articles were recovered and taken into possession by ion by the police on the statement and indication of _________, son ofthe police on the statement and indication of _________, son of_______, caste _______, village ______, accused in the above men_______, caste _______, village ______, accused in the above mentioned tioned case.*case.*

* Cross out if not applicable* Cross out if not applicableArticleArticle Place from which recoveredPlace from which recovered1.1.2.2.3.3.4.4.5.5.6.6.Name and signature Name and signature Signature and designation of Signature and designation of of the witness of the witness the officer conducting the the officer conducting the

search.search.

QueriesQueries11

Whether search & seizure operation is necessary to Whether search & seizure operation is necessary to build up enforcement case or can be filed based on build up enforcement case or can be filed based on the evidence collected during discreet investigations. the evidence collected during discreet investigations. If it is so, which types of evidences are required for If it is so, which types of evidences are required for filing the case?filing the case?

Answer:Answer:-- Section 200, 202Section 200, 202

Section Section --200200A Magistrate taking cognizance of an A Magistrate taking cognizance of an offence on complaint shall examine upon offence on complaint shall examine upon oath the complainant and the witnesses oath the complainant and the witnesses present, if any, and the substance of present, if any, and the substance of such examination shall be reduced to such examination shall be reduced to writing and shall be signed by the writing and shall be signed by the complainant and the witnesses, and by complainant and the witnesses, and by the Magistrate:the Magistrate:Provided that, when the complaint is Provided that, when the complaint is made in writing , the Magistrate need not made in writing , the Magistrate need not examine the complainant and the examine the complainant and the witnesseswitnesses--

(a) If a public servant acting or purporting (a) If a public servant acting or purporting to act in the discharge of his official to act in the discharge of his official duties or a Court has made the duties or a Court has made the complaint;complaint;

Inquiry into Complaint Inquiry into Complaint

Section 202(I)Section 202(I)

Any Magistrate, on receipt of a complaint of Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take an offence of which he is authorized to take cognizance or which has been made over to cognizance or which has been made over to him under section 192, may, if he thinks fit, him under section 192, may, if he thinks fit, postpone the issue of process against the postpone the issue of process against the accused, and accused, and either inquire into the case either inquire into the case himself or direct an investigation to be himself or direct an investigation to be made by a police officer or by such other made by a police officer or by such other person as he thinks fitperson as he thinks fit, for the purpose of , for the purpose of deciding whether or not there is sufficient deciding whether or not there is sufficient ground for proceeding. ground for proceeding.

…Contd

(3)(3) If an investigation under subIf an investigation under sub--section (1) is made by a person section (1) is made by a person not being a police officer, he shall not being a police officer, he shall have for that investigation all the have for that investigation all the powers conferred by this code on powers conferred by this code on an officer in charge of a police an officer in charge of a police station station except the power to arrest except the power to arrest without warrantwithout warrant..

QueriesQueries22

Whether case of misuse of ISI Mark can Whether case of misuse of ISI Mark can be filed based on FIR filed with Police be filed based on FIR filed with Police authorities? authorities?

Answer:Answer:-- Section 420, 467 & 471 IPCSection 420, 467 & 471 IPC

Cheating Cheating Section 415/420Section 415/420

Whoever, by deceiving any person Whoever, by deceiving any person fraudulently or dishonestly induces the fraudulently or dishonestly induces the person so deceived to deliver any property person so deceived to deliver any property to any person, or to consent that any to any person, or to consent that any person shall retain any property, or person shall retain any property, or intentionally induces the person so deceived intentionally induces the person so deceived to do or omit to do anything which he to do or omit to do anything which he would not do or omit if he were not so would not do or omit if he were not so deceived, and which act of omission causes deceived, and which act of omission causes or is likely to cause damage or harm to that or is likely to cause damage or harm to that person in body, mind, reputation or person in body, mind, reputation or property, is said to property, is said to ““cheatcheat””ExplanationExplanation-- A dishonest concealment of A dishonest concealment of facts is a deception within the meaning of facts is a deception within the meaning of this sectionthis section. .


Illustration Illustration

(b)(b) A, by putting a counterfeit mark A, by putting a counterfeit mark on a article, intentionally deceives Z on a article, intentionally deceives Z into a belief that article was made by into a belief that article was made by a certain celebrated manufacturer, a certain celebrated manufacturer, and thus dishonesty induces Z to buy and thus dishonesty induces Z to buy and pay for the article . A cheats. and pay for the article . A cheats. (c)(c) A, by exhibiting to Z a false A, by exhibiting to Z a false sample of an article, intentionally sample of an article, intentionally deceives Z into believing that the deceives Z into believing that the article corresponds with the sample, article corresponds with the sample, and thereby dishonestly induces Z to and thereby dishonestly induces Z to buy and pay for the article. A cheats. buy and pay for the article. A cheats.

QueriesQueries33

Independent witness is necessary during Independent witness is necessary during search & seizure operation. Whether police search & seizure operation. Whether police personnel can be considered as independent personnel can be considered as independent witnesses?witnesses?

Answer:Answer:-- YESYES

QueriesQueries44

If during search & seizure operation the If during search & seizure operation the owner or the person available refuses to sign owner or the person available refuses to sign seizure memo, what course of action is seizure memo, what course of action is required to be followed during the search & required to be followed during the search & seizure operation.seizure operation.

QueriesQueries55

If during search & seizure operation the premise If during search & seizure operation the premise is locked from inside or it is not being opened and is locked from inside or it is not being opened and the manufacturing activities are going on, what the manufacturing activities are going on, what actions can be taken under these circumstances actions can be taken under these circumstances under the provision of Cr. PC?under the provision of Cr. PC?

Answer:Answer:-- Section 26 (3) BIS Act, Read withSection 26 (3) BIS Act, Read withSections 100 (1) & (2) And Section 47 Sections 100 (1) & (2) And Section 47 (2) of Cr.P.C(2) of Cr.P.C

(3) The provision of the (3) The provision of the Code of Code of Criminal Procedure,Criminal Procedure, 1973, 1973, relating to searches and seizures relating to searches and seizures shall, so far as may be, apply to shall, so far as may be, apply to every search or seizure made every search or seizure made under this section. under this section.


(1)(1)Whenever any place liable to search or Whenever any place liable to search or inspection under this Chapter is closed, inspection under this Chapter is closed, any person residing in, or being in any person residing in, or being in charge of, such place, shall, on demand charge of, such place, shall, on demand of the officer or other person executing of the officer or other person executing the warrant, and on production of the the warrant, and on production of the warrant, allow him free ingress thereto, warrant, allow him free ingress thereto, and afford all reasonable facilities for a and afford all reasonable facilities for a search therein.search therein.

(2)(2) If ingress into such place cannot be so If ingress into such place cannot be so obtained, the officer or other person obtained, the officer or other person executing the warrant may proceed in executing the warrant may proceed in the manner provided by subthe manner provided by sub--section (2) section (2) of section 47.of section 47.

SearchSearchSection 47 (2)Section 47 (2)

If ingress to such place cannot be obtainedIf ingress to such place cannot be obtainedunder subunder sub--section (1), it shall be lawful in section (1), it shall be lawful in any case for a person acting under a warrant any case for a person acting under a warrant and in any case in which a warrant may and in any case in which a warrant may issue, but cannot be obtained without issue, but cannot be obtained without affording the person to be arrested an affording the person to be arrested an opportunity of escape, for a police officer to opportunity of escape, for a police officer to enter such place and search therein, and enter such place and search therein, and in in order to effect an entrance into the place, to order to effect an entrance into the place, to break open any outer or inner door or break open any outer or inner door or window of any house or placewindow of any house or place, whether that , whether that of the person to be arrested or of any other of the person to be arrested or of any other person, if after notification of his authority person, if after notification of his authority and purpose, and demand of admittance and purpose, and demand of admittance duly made, he cannot otherwise obtain duly made, he cannot otherwise obtain admittance: admittance:

QueriesQueries66

If, during search & 'seizure operation, all the If, during search & 'seizure operation, all the persons available at the place of offence persons available at the place of offence escape, what procedure under escape, what procedure under Cr.PCCr.PC should should be followed for seizing the material and be followed for seizing the material and preparing the seizure memo?preparing the seizure memo?

QueriesQueries77

During the search & seizure operation, can During the search & seizure operation, can the entire manufacturing machinery be seized the entire manufacturing machinery be seized as a part of evidence for proving the offence as a part of evidence for proving the offence on part of the offender?on part of the offender?


QueriesQueries

88If the offender refuses to open the If the offender refuses to open the godowngodown in which spurious material is in which spurious material is stored, what provisions are available under stored, what provisions are available under Cr.P.C to seize such material? Cr.P.C to seize such material?

Answer:Answer:-- Same as query no. 5Same as query no. 5

QueriesQueries99

During the search & seizure operation, tools / During the search & seizure operation, tools / equipments of using BIS Standard Mark, such as, equipments of using BIS Standard Mark, such as, printing machine, roller, metal parts are seized printing machine, roller, metal parts are seized but no material is available, would it be possible but no material is available, would it be possible to file a case against the offender?to file a case against the offender?

QueriesQueries

1010In case the manufacturer is not pinned, In case the manufacturer is not pinned, whether search & Seizure operation can be whether search & Seizure operation can be conducted at the dealer who is supplying conducted at the dealer who is supplying spurious material to get evidence against the spurious material to get evidence against the manufacturer?manufacturer?


QueriesQueries1111

If the dealer / trader / shopkeeper who is If the dealer / trader / shopkeeper who is supplying spurious ISI marked material does supplying spurious ISI marked material does not reveal the source of procurement or the not reveal the source of procurement or the manufacturer's name and address, can a case manufacturer's name and address, can a case be filed under BIS Act against the dealer / be filed under BIS Act against the dealer / trader / shopkeeper?trader / shopkeeper?

Answer:Answer:-- YES (Section 11 BIS Act andYES (Section 11 BIS Act and420 IPC, 179 IPC)420 IPC, 179 IPC)

QueriesQueries

1212Whether any action or search & seizure Whether any action or search & seizure operation can be conducted by BIS on the operation can be conducted by BIS on the manufacturer producing goods without ISI manufacturer producing goods without ISI mark when he is not permitted to do so as the mark when he is not permitted to do so as the product being, manufactured has been brought product being, manufactured has been brought through Quality Control Order under Section 14 through Quality Control Order under Section 14 of the BIS Act?of the BIS Act?

Answer:Answer:-- YES (BIS Act & IPC)YES (BIS Act & IPC)

QueriesQueries

1313Whether BIS Inspecting Officer is Whether BIS Inspecting Officer is permitted to conduct search & seizure permitted to conduct search & seizure operation for violation of section 14 of operation for violation of section 14 of the BIS Act?the BIS Act?

Answer:Answer:-- YES (Section 25(2)YES (Section 25(2)

Investigation of OffencesInvestigation of OffencesPowers of Inspecting OfficersPowers of Inspecting Officers

S.25(2) S.25(2) --Subjects to any rules made Subjects to any rules made under this Act, an inspecting officer under this Act, an inspecting officer shall have power toshall have power to--

•• inspect any operation carried on in inspect any operation carried on in connection with any article or process connection with any article or process in relation to which the Standard Mark in relation to which the Standard Mark has been used; andhas been used; and

•• take samples of any article or of any take samples of any article or of any material or substances used in any material or substances used in any article or process, in relation to which article or process, in relation to which the Standard Mark has been used.the Standard Mark has been used.

…Contd

(3)(3) Every inspecting officer shall be Every inspecting officer shall be furnished by the Bureau with a furnished by the Bureau with a certificate of appointment as an certificate of appointment as an inspecting officer and the certificates inspecting officer and the certificates shall, on demand, be produced by the shall, on demand, be produced by the inspecting officer. inspecting officer.

QueriesQueries

1414Whether there is a bar in carrying out Whether there is a bar in carrying out investigation or collection of evidence after investigation or collection of evidence after the search & seizure operation and before the search & seizure operation and before filing the case within the limitation period?filing the case within the limitation period?

Answer:Answer:-- NONO

QueriesQueries

1515Whether after filing the complaint before the Whether after filing the complaint before the designated court, fresh evidence can be designated court, fresh evidence can be brought before the court during the brought before the court during the proceedings under Cr. PC?proceedings under Cr. PC?

Answer:Answer:-- YES (Section 311 & 319)YES (Section 311 & 319)

Section 311 Cr.P.CSection 311 Cr.P.C

Any court may, at any stage of any Any court may, at any stage of any inquiry, trial or other proceeding inquiry, trial or other proceeding under this Code, summon any under this Code, summon any person as a witness, or examine person as a witness, or examine any person in attendance, through any person in attendance, through not summoned, as a witness, or not summoned, as a witness, or recall and rerecall and re--examine any person examine any person already examined; and the Court already examined; and the Court shall summon and examine or recall shall summon and examine or recall and reexamine any such person if and reexamine any such person if his evidence appears to it to be his evidence appears to it to be essential to the just decision of the essential to the just decision of the case. case.

Power to summon material witness, or examine person present

Section 319(1) Cr.P.CSection 319(1) Cr.P.C

Where, in the course of any Where, in the course of any inquiry into, or trial of, an offence, inquiry into, or trial of, an offence, it appears from the evidence that it appears from the evidence that any person not being the accused any person not being the accused has committed any offence for has committed any offence for which such person could be tried which such person could be tried together with the accused, the together with the accused, the Court may proceed against such Court may proceed against such person for the offence which he person for the offence which he appears to have committed. appears to have committed.

QueriesQueries

1616Whether the complaint officer can Whether the complaint officer can be changed at any stage of be changed at any stage of proceedings?proceedings?


QueriesQueries

1717Whether exemption to complaint officer Whether exemption to complaint officer for appearances before the court can be for appearances before the court can be granted or obtained from the designated granted or obtained from the designated court?court?


QueriesQueries

1818What kind of details a seizure What kind of details a seizure memo should contain to avoid any memo should contain to avoid any ambiguity?ambiguity?

QueriesQueries1919

In case the seized material, left under In case the seized material, left under superdarisuperdari as per subas per sub--rule 2 of section 26 of rule 2 of section 26 of BIS Act, is disposed of by the offender, BIS Act, is disposed of by the offender, what action can be taken under Cr.P.C ?what action can be taken under Cr.P.C ?

prosecution under the bis act, 1986 · prosecution under the bis act, 1986 a ... • scheme of...

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