Short answer: Anything the police seize, from a phone to a weapon to a blood sample, should move through an unbroken, documented sequence: seizure in front of witnesses, sealing, entry in the police storeroom (malkhana) register, and dispatch to the forensic laboratory with intact seals. If that record has gaps, the defence can lawfully ask the court to doubt whether the item tested is the item seized.
What “chain of custody” means
Chain of custody is simply the paper trail that shows who held a piece of evidence, when, where and in what condition, from the moment it was seized until it is produced in court. Courts do not presume that an exhibit is genuine because the police say so. The prosecution is expected to show, through documents and witnesses, that the article was not substituted, opened or altered along the way.
This matters most for items that cannot be identified by the naked eye: drugs, liquids, viscera, blood or DNA samples, and digital devices whose contents can change if they are switched on.
What the law says
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has strengthened the record-keeping that surrounds a seizure:
- Search in front of witnesses: Section 103 BNSS (old Section 100 CrPC) requires searches to be made in the presence of two independent local witnesses, who sign the list of seized items.
- Videography: Section 105 BNSS requires the search and seizure, including preparation of the list of seized items, to be recorded through audio-video electronic means, preferably a mobile phone, and the recording to be forwarded to the Magistrate without delay.
- Crime scene: For offences punishable with seven years or more, Section 176(3) BNSS requires a forensic team to visit the scene and the process to be videographed.
- Seizure: Section 106 BNSS (old Section 102) governs the power to seize property and requires the seizure to be reported.
- Electronic devices: Section 193(3)(i)(h) BNSS requires the police report (chargesheet) to state the sequence of custody of electronic devices.
In practice, each sealed packet carries a seal impression, a specimen of the seal is kept on record, the packet is entered in the malkhana register with date and time, and a forwarding letter and road certificate accompany it to the Forensic Science Laboratory (FSL). The FSL report usually records whether the seals were found intact and matched the specimen. Special laws, such as the NDPS Act, add their own sampling rules.
Common gaps that courts look at
Gaps are not proof of wrongdoing, but they can create reasonable doubt. Points that are often examined in cross-examination include:
- Seizure memo without independent witnesses, or witnesses who say they signed blank or later-filled papers.
- No video recording under Section 105 BNSS, or a recording that does not show the sealing.
- Seal not described, specimen seal not preserved, or seal handed back to the officer who used it.
- Malkhana register entry made days after seizure, or missing altogether.
- Unexplained delay in sending samples to the FSL, or the FSL noting a seal that does not match.
- Difference in weight, colour, number or description between the seizure memo and the laboratory report.
- A phone or laptop that was switched on, used or connected to a network after seizure, without a record of who handled it.
For forensic and digital reports specifically, our note on forensic, medical and digital evidence delays explains how laboratory timelines affect a case.
What to do, in order
- Ask for and keep a copy of every seizure memo or list of seized items given to you at the time of search. Read it before signing and note any disagreement in writing.
- Note the date, time, names of officers and names of witnesses present, while your memory is fresh.
- Once the chargesheet is filed, check that you have received all documents, including the malkhana register extract, FSL forwarding letter, FSL report and any video recording. The court must supply police report documents free of cost within 14 days of appearance (Section 230 BNSS).
- If any of these are missing, your advocate can apply to the court for their supply or production.
- During trial, gaps are put to the seizing officer, the malkhana in-charge and the officer who carried samples, through cross-examination.
- If an item is lawfully returnable, an application for its release on superdari or interim custody can be made, with photographs and a record of its condition taken first.
Your rights and common mistakes
You are entitled to a copy of the list of seized items, to be informed of what has been taken, and to receive the documents the prosecution relies on. You are not required to prove that evidence was tampered with; the burden of proving the case remains on the prosecution.
The most common mistake is trying to “fix” the problem yourself: never alter, delete, replace or hide any article, device or data, even if you believe the police record is wrong. That is a separate offence and damages your defence. Raise every concern through lawful applications and cross-examination.
Common questions
Does a gap in custody mean the case will be dismissed?
No. Courts weigh the gap against the rest of the evidence. A minor, explained delay may not matter; an unexplained break in the custody of the only key exhibit can weigh heavily.
Can I see the video recording of the search?
The recording is part of the record forwarded to the Magistrate. Your advocate can apply for a copy or for its production if it is relied upon or relevant to the defence.
What if my seized phone is still with the police months later?
An application can be made for its release, subject to conditions such as making a forensic copy first. Do not attempt to access its accounts remotely in a way that changes data.
When to speak to an advocate
Speak to an advocate as soon as there has been a search or seizure, and again when the chargesheet arrives. Early review of the seizure papers helps identify what to request from the court before trial evidence begins.
Sources: Bharatiya Nagarik Suraksha Sanhita, 2023 (India Code); Bharatiya Sakshya Adhiniyam, 2023 (India Code).
For a confidential discussion about seized property, forensic reports or the handling of evidence in your case, see Criminal Lawyer, Surajpur Court, Greater Noida.
General legal information only; not legal advice or solicitation.
