Beyond the Panchnama: Untangling Seizure, Recovery and Discovery Under the BNSS and BSA

 A practitioner's guide to three words that are often used interchangeably in FIRs, charge-sheets and judgments — but which carry three distinct legal consequences.

Few triads in criminal law are as loosely used, and as consequential when misunderstood, as seizure, recovery and discovery. Investigating officers write them almost as synonyms in case diaries and seizure memos. Yet each term occupies a separate compartment in the evidentiary architecture, and conflating them can weaken an otherwise sound prosecution — or, conversely, let a defective one slip through unchallenged. With the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) now governing procedure and evidence, and with the new mandate of audio-video recording of searches, it is worth revisiting these concepts with precision — and with reference to how courts in 2026 have already begun applying them.

Three Words, Three Legal Consequences

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Whether evidence relating to discovery becomes inadmissible if statement made by accused is not recorded?

Mr. Apte, the learned Counsel for the accused thereafter placed his reliance on the decision of the Supreme Court in the case of Niranjan Panja Vs. State of West Bengal reported in MANU/SC/0386/2010 : (2010) 6 SCC 525. Mr. Apte pointed out that in the said decision, it has been stated that for effecting a discovery, a statement has to be recorded on the part of the accused showing his readiness to produce the material object and it is only that part of the statement which is not incriminating and leads to discovery which becomes admissible. In the said case, the recovery was not relied upon because the weapon which was allegedly produced by the accused was never produced before the Court and the prosecution has also not given any explanation whatsoever about the disappearance of this weapon. On carefully going through this decision, we find that again it deals with the aspect as to what part of statement made by the accused is admissible and the ratio in this decision is that only the part of the statement which is not incriminating and leads to discovery becomes admissible. The ratio of this decision does not appear to be that if a statement made by the accused is not recorded, evidence relating to the discovery becomes inadmissible. Mr. Apte also relied upon two judgments delivered by the Supreme Court namely (1) Aher Raja Khima Vs. State of Saurashtra reported in MANU/SC/0040/1955 : AIR 1956 SC 217 and (2) Vijender Vs. State of Delhi reported in MANU/SC/1224/1997 : (1997) 6 SCC 171. The said two decisions also deal with Section 27 of the Indian Evidence Act and the fact of discovery at the instance of accused.

28. It is well settled that the observations in a judgment cannot be de hors the point which is sought to be raised and the facts in which such point is raised. The observations cannot by themselves form the ratio of the decision. The ratio of the decision is to be drawn after considering the facts of the case, the point which is sought to be raised in the matter, the arguments which are canvassed in support of rival contentions in relation to such point, the discussion made by the Court with reference to such point canvassed by the counsel for the parties and the ultimate decision arrived thereupon. On taking into consideration all these aspects, the ratio of the decision has to be gathered. Any sentence in a judgment cannot be read as a statutory provision and the ratio in that regard is well settled by catena of decisions of the Apex Court. This has been clearly explained in different decisions of the Apex court including in the matter of Union of India & Ors. Vs. Dhanwanti Devi & Ors. reported in MANU/SC/1272/1996 : (1996) 6 SCC 44. It has clearly ruled therein that the decision is what it decides and not what follows from it.

29. In the decisions in the case of Prabho (supra) and Niranjan Panja (supra), the question did not arise specifically for consideration as to whether failure to record the information given by the accused would render the evidence relating to discovery by the accused inadmissible. However, this question arose directly for consideration before the Supreme Court in the case of Mohd. Arif alias Ashfaq Vs. State (NCT of Delhi) reported in MANU/SC/0919/2011 : (2011) 13 SCC 621 on which the learned APP has placed reliance. In the said case, the same question as in the present case specifically arose for consideration which can be seen from paragraph 169 of the judgment which reads thus:--

"Now coming to the second argument of failure to record the information, it must be held that it is not always necessary. What is really important is the credibility of the evidence of the investigating agency about getting information/statement regarding the information from the accused. If the evidence of the investigating officer is found to be credible then even in the absence of a recorded statement, the evidence can be accepted and it could be held that it was the accused who provided the information on the basis of which a subsequent discovery was made. The question is that of credibility and not the formality of recording the statement. The essence of the proof of a discovery under Section 27 of the Evidence Act is only that it should be credibly proved that the discovery made was a relevant and material discovery which proceeded in pursuance of the information supplied by the accused in the custody. How the prosecution proved it, is to be judged by the Court but if the Court finds the fact of such information having been given by the accused in custody is credible and acceptable even in the absence of the recorded statement and in pursuance of that information some material discovery has been effected then the aspect of discovery will not suffer from any vice and can be acted upon."

30. In Suresh Chandra Bahri Vs. State of Bihar reported in 1955 Supp (1) SCC 80, no discovery statement was recorded by the investigating officer of the information supplied by the accused to him. Further no public witness was examined by the prosecution to support the theory that such an information was given by the accused to him in pursuance of which some material discovery was made. The Supreme Court, however, in spite of these two alleged defects, accepted the evidence of discovery against the accused on the basis of the evidence of the police officer. In the present case, we find the evidence of police officer PW-15 Bhimrao Waghmare to be wholly credible and reliable. He has not at all been shaken in his cross-examination. In such circumstances, we have no hesitation in relying on his evidence which shows that the spot where the dead body of the victim girl was buried was shown by the accused in presence of PW-8, the panch witness. In our view the decisions cited by the learned Counsel for the accused are of no help to him.

IN THE HIGH COURT OF BOMBAY

Confirmation Case No. 1 of 2015 and Criminal Appeal No. 923 of 2015

Decided On: 14.03.2016

 The State of Maharashtra
Vs.
 Vitthal Tukaram Atugade

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Whether accused who is released on anticipatory bail can be taken in custody by police for facilitating the discovery?

An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Section 438 (1) are those recommended in Sub-section (2) (i) and

(ii) which require the applicant to co-operate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under Section 438 (1), appropriate conditions can be imposed under Section 438 (2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167 (2) of the Code is made out by the investigating agency.

SUPREME COURT OF INDIA

GURBAKSH SINGH SIBBIA ETC. Vs. STATE OF PUNJAB

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