Right now, almost everyone in Bangladesh is talking about the arrest of actress Pori Moni. In the last few days, law enforcing agencies have raided houses of a few actresses, models, and a film producer. RAB confirmed that they found liquor and other narcotics in their residences. There are allegations against two models that they have also been members of an organized blackmailing group, and have been blackmailing wealthy men for large amounts of money.
However, just before her arrest, Pori Moni claimed in a live video from her verified Facebook page that a few men were at her house and was trying to enter forcibly without disclosing their identity. She assumed they could be robbers. She also claimed she had called her nearest thana and was waiting for the police. As of the end of the live video, apparently no police officers from Banani thana made an entrance.
Following the arrest, RAB confirmed to the press that the raid was carried out based on specific allegations and information. RAB also confirmed that the actress had turned her house into a mini bar, and regularly arranged unlawful parties.
The allegations against two other models and Pori Moni are quite similar -- in all three raids, official legal action have been taken after the alleged recovery of narcotics and alcohol. So far, media reports reveal that there was neither any earlier case in their name, nor did the law enforcers have any search warrant from the court.
There are specific laws to conduct searches of persons and houses in Bangladesh. Search has always been a sensitive issue across the globe, as it may infringe on a citizen’s right to privacy and a number of other human rights. Therefore, laws relating to search are enacted and executed carefully nowadays.
Article 31 of the Constitution of the People’s Republic of Bangladesh guarantees the right to protection of law, and says it is an inalienable right of every citizen of this country, and no action detrimental to the life, liberty, body, reputation, or property of any person shall be taken except in accordance with law.
Hence, law enforcers can’t bring an accused in front of the media before proving guilt, and must not tarnish anybody’s reputation.
Moreover, Article 33 implies a duty to inform of the grounds of arrest without delay to any arrestee while Article 35 enshrines the individual’s right not be a witness against himself. Article 43 secures the right to be safe at home against unlawful entry, search, seizure, and the right to privacy. Therefore, it is very clear from the text of the constitution that it intends to protect citizens from unlawful search.
Hence, police must comply with the law and get a search warrant from a competent court before carrying out a search or raid at a private place. In order to get a search warrant, police are required to demonstrate sufficient evidence of a crime. It should clearly state where and when exactly the search should take place.
The power to issue a search warrant should be exercised with due care and diligence by the court. The Code of Criminal Procedure (CrPC), 1898 suggests three specific circumstances under Section 96 where a search warrant may be issued: i) If any court has reason to believe that a person will not produce a document or thing as required by the summons of that court, or ii) the document or thing is not known to the court to be in the possession of any person, or iii) the court considers that the purpose of any inquiry, trial, or other proceeding under the code will be served by a general search or inspection.
There are a few exemptions for hot pursuit as Section 165 of the CrPC and Section 23 of the Narcotics Control Act (NCA), 2018 have been enacted as exceptions to these general rules of searches because it is recognized that in certain emergency situations, it may be necessary to permit the police officer to carry out searches without first applying to the courts for authority.
According to the said provisions, an officer in charge of a police station or an investigating officer, or a specially empowered office under the NCA may proceed for search without warrant if the officer reasonably believes that a thing cannot in his opinion, be otherwise obtained without undue delay. The officer requires to record in writing the grounds of his belief and specify the thing for which the search is to be made.
Nevertheless, the provisions as to search enumerated in the CrPC shall also apply to search without warrant. In case of every search, the officer shall call upon two or more “respectable inhabitants” of the locality to attend and witness the process. The term respectable inhabitant is not defined in the law, and there is scope of misusing it. They may not be allowed to witness everything during the search, or may not act independently due to the influence of police.
In accordance with the law, the occupant of a house or some other person on his/her behalf shall in every instance be permitted to attend during the search. Regulation 280 of the Police Regulation of Bengal, 1943 prescribes detailed responsibilities of police while carrying out a search.
Although the law authorizes search without warrant in limited circumstances, police should not use this exception as a sweeping power. The occupant of a house has some rights, such as asking for identification, knowing grounds for search, seeing the warrant. Furthermore, the occupant can restrict the search inside a definite area stipulated in the warrant. Any evidence seized during the search can’t be used in the court if it is collected infringing the law.
Still, there is always a real danger that one may plant evidence. To avoid this, searches should be video recorded, from the beginning to end, to ensure transparency and accountability. Also, a provision may well be introduced to carry out a search in the presence of a lawyer of the accused, if immediately available, to avoid any future legal collision and mistrust.
Raisul Sourav is a Chevening Scholar and Assistant Professor of Law, Dhaka International University, and an Advocate at the Supreme Court of Bangladesh. Farzana Hussain is a Barrister-at-Law (The Honourable Society of Lincoln’s Inn) and a Human Rights Activist. E-mail: raisul.sourav@outlook.com and farzana.shumona@yahoo.co.uk.