The Narcotics Control Bureau (NCB), which is probing drug charges against actor Rhea Chakraborty and others, has seized and retrieved data from the mobile phones of Rhea and Jaya Saha – manager of late actor Sushant Singh Rajput. NCB has named Rhea and Shah as accused in its FIRs in the case. They also seized the phones of actresses Deepika Padukone, Shraddha Kapoor and Sara Ali Khan who are not accused in the case.
Can the police seize the phones of those under investigation?
Yes. Section 102 of the Code of Criminal Procedure gives the police the right to seize material they think will be valuable as part of investigation. The sections on the power of a police officer to seize certain property says, “ Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Such police officer… shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized.” NCB, a central agency which is technically not police, gets similar powers of ‘search and seizure’ from the NDPS Act.
What if the person has not been named as an accused?
Section 102 of the CrPC gives the police the power to seize the mobile/laptop/private diary or anything that they think 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 believe he/she has something that will aid the investigation.
Are there any safeguards to respect the privacy of the person whose phone is seized?
It is expected that an investigating officer takes personal devices for investigation alone and it is not to be leaked to anyone. However, if someone feels that his data is being leaked, he/she can approach the court hearing the matter seeking the agency be restrained from making leaks that could lead to defamation. “Like entire contents of private data is considered indiscretion on the part of the investigating agency,” an IPS officer said.
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In the case of Deepika, Sara and Shraddha, the agency said that they had voluntarily given their phones. How does that work?
An IPS officer said that while generally they seize phones of accused, when it comes to getting data from witnesses or government agencies like land records in a particular case, there is also something called “handing over/taking over” for smoother operation. Seizing a particular document/device entails a proper procedure including seizing evidence in the presence of witnesses and doing a panchnama, sealing items and also taking hash value in case of electronic items to show it was not tampered with. Handing over/taking over is usually done without these detailed procedures and it means to hasten the process.
In what cases do agencies perform seizures and/or handing over/taking over?
Cases where there is a probability that the person could later claim in the court that the evidence was tampered with, agencies usually seize it so that there are safeguards against any allegations since all evidence is sealed in front of witnesses who can be called to confirm the same in a court. Handing over/taking over is usually reserved in cases where there are no chances of allegations like a government body handing over land records/ birth certificates to an agency. Usually while state police prefer seizures in most cases, while central agencies like the CBI at times use handing over/taking over.
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What is hash value in cases of electronic goods?
When an agency seizes a mobile, laptop or any electronic devices, they have to take the hash value. A hash value is basically an algorithm which is a specific numerical value that identifies the contents of the file at a particular time. If there is any attempt made to change the content of the device, the hash value will change. When the device is given to a forensic authority, to retrieve data, they are expected to go ahead only if the hash value recorded at the time of seizure is the same as the one on the device when they handed it over to them. It ensures sanctity of the data. If during a raid, there are no experts to take hash value, officers are supposed to seal the phone in a bag which is then opened in front of cyber experts. Even in cases of computers, officers are not supposed to switch off the computer – as data could be lost – and just pull out the wire and seal it.
Are there cases where the hash value has not been provided to the accused?
In the Bhima Koregaon case where several activists and lawyer were arrested on the charges of inciting violence at the Elgar Parishad at Shaniwar Wada in Pune in 2017, the family members of some of the arrested accused alleged that the Pune police did not provide the hash value of the devices they seized from the residences of the accused person . The allegations were that the hash value in some cases was provided months later, thereby putting into question the sanctity of the data on the devices, the accused had alleged.
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So when are the seized devices returned?
It depends on what the investigating agencies find on these devices. In case they do not find any evidence which is used in the chargesheet, the owner of the device or the investigating officer can file an application before the court that the device be returned. If it has important evidence, the person may have to wait till the end of the trial or after the evidence is taken on record by the court before the court agrees for it to be returned to the owner.
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