The Midnight Nakka: Twelve Phones and No Bills
At 23:40 on a winter night, Constable Amarjit Singh is on nakka duty on the Rajpura–Patiala highway with a head constable and two home guards. A motorcycle approaches with no headlight and its number plate caked in mud. The rider, aged about 30, gives his name as 'Sonu' but cannot produce a licence, RC or Aadhaar. A search of the bag on his shoulder, conducted in the presence of two passers-by, yields 12 mid-range smartphones, none with bills, and a small notebook with IMEI numbers written in a different hand. One phone rings continuously. The rider says he 'repairs and sells' phones and that a friend in Ambala gave him the bag. A crowd of about 20 has gathered and one young man is filming on his phone; a local shopkeeper whispers that the rider's cousin is a municipal councillor. The nearest Magistrate is 34 km away at the district headquarters. The head constable wants the matter closed before it becomes a headache.
1. The head constable says: 'We cannot arrest - nothing has been stolen here. Write his details and let him go.' Do you agree? State what you would do and the legal basis for it.
Read the worked answer
Do not accept that reading. Arrest without warrant is permitted where a person is reasonably suspected of being concerned in a cognizable offence and is found in possession of property that may reasonably be suspected to be stolen, and gives no satisfactory account of it - in substance Section 35(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (earlier Section 41(1)(d) CrPC).
Apply the test, not the label. Twelve handsets, no purchase bills, IMEIs in another hand, an unverified name, no identity document, and a version ('a friend in Ambala gave me the bag') that cannot be checked at 23:40. That is reasonable suspicion. It is not proof of guilt, and the constable must not speak as though it were.
Two lawful routes - take the less restrictive one that actually works:
- If his account can be verified without custody, issue a notice of appearance under Section 35(3) (earlier Section 41A CrPC), seize the phones under a seizure memo, and let him go.
- If he may abscond or the property is plainly stolen, arrest him, prepare an arrest memo signed by a witness, communicate the grounds of arrest, inform a family member, have him medically examined, and produce him before the Magistrate within 24 hours excluding journey time (Section 58 BNSS / Section 57 CrPC).
Non-negotiables: videograph the search and seizure, list each phone with make, model and IMEI, take two independent witness signatures, and enter every step in the station diary with timestamps. The 34 km to the Magistrate is travel time, not a reason to hold him longer than the law allows.
2. The shopkeeper mentions the councillor cousin, the crowd turns noisy, and a man begins shouting that the police are harassing an innocent trader. What do you do, and what do you refuse to do?
Read the worked answer
Political connection is not a legal ground for arrest, and it is not a legal ground for release either. Work through it in this order:
- Secure the person and the property. Move the detained man into the police vehicle or the nakka tent, away from the crowd. Call PCR for reinforcement if the gathering is 20-plus and turning hostile.
- Record, do not react. Keep the videography running and note the names of anyone threatening or obstructing. Filming the police is not by itself an offence - do not snatch the phone, as that converts a theft enquiry into a misconduct complaint.
- If the councillor arrives, hear him out, show him the seizure memo and the arrest memo, and state the legal position plainly: release can happen only through a Section 35(3) notice or on a Magistrate's order. No verbal release, no 'adjustment'.
- If a senior officer directs release, ask for it in writing and enter the direction in the station diary. An unlawful order does not become lawful because of the rank behind it.
- Dispersal: if the assembly becomes unlawful and obstructs duty, use the dispersal powers under the BNSS after a lawful warning, record the warning time, and use minimum force.
- De-escalate first. In a small town this is a communication problem before it is a force problem; a calm explanation of the memo in Punjabi will disperse more crowds than a lathi charge.
3. The seized phone keeps ringing. What should the constable do and not do with it, and how does it become usable evidence in court?
Read the worked answer
The phone is evidence, not a personal device and not a bargaining chip.
- Do not hand it back to the suspect and do not let him touch it - a remote-wipe command can be sent from the other end while it sits on the table.
- Note the incoming number from the screen only. Do not answer it, and never impersonate the owner to extract information.
- Isolate it: switch it to flight mode or power it off, and record the battery level, so that nobody later alleges the data was altered.
- Seize and seal it under a seizure memo with IMEI, SIM number and physical condition noted, and keep it in the malkhana with a chain-of-custody entry.
- No unauthorised scrolling. Opening chats, gallery or contacts is a search of a digital device and needs the prescribed procedure and, where required, a court order.
- Admissibility: an electronic record needs the certificate in the form prescribed under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (earlier Section 65B of the Indian Evidence Act), along with the hash value of the extracted image, so that the defence cannot argue the data was planted.
- Follow the ringing number through a lawful request for subscriber details and call detail records, routed through the proper channel rather than a friendly phone call.