Chapter: 1.2.2 Actual conduct of search in Right and duties

Actual conduct of search

Rights of the assessee before commencement of search

1.    Production of warrant of authorization.
2.    Production of evidence of identity of officer.
3.    Personal search of raiding party.
4.    Presence of respectable witnesses

Rights of assesses during search in relation to the legal procedure:
The assessee has the following rights, namely:

a.    To the presence of two or more witnesses who should be independent and respectable persons of the same locality;
b.    To decline to co-operate in the conduct of search or even object to a search without the presence of such witnesses;
c.    However, the assessee does not have the right of choice of the witnesses, this discretion is with the authorized officer.
d.    To insist that no person who does not belong to the same locality is taken as a witness unless it is impossible to get a witness of the same locality;
e.    If an authorized officer carries the witness along with him, the assessee can still object to the presence and the credit worthiness of such witness to search;
f.    To decline the search if it is being conducted in the presence of only one witness as the minimum requirement is of two;
g.    To object if a witness taken by the authorized officer is his business rival, a disgruntled employee or a recalcitrant relation or friend who is not likely to be independent;
h.    To object for taking a person as a witness who is not respectable in the sense that he is convict of any offense, who does not enjoy a good reputation socially and has been charged for certain acts subversive of law.
i.    To object qua any person being taken as a witness who lacks the understanding about the nature of the proceedings, who is totally illiterate and whose presence can be of little evidentiary value except for signing the papers in a stereotyped manner;
j.    Once the assessee is allowed the option of selecting the witness, it may not be open to him to turn around and challenge the validity of the proceedings on the grounds that witnesses selected were not independent persons of the same locality or that they were not respectable enough for that purpose. Therefore, while exercising this option in case it is granted by the authorized officer, the assessee may exercise his choice properly and in favour of such persons about whom he may have no occasion to complain later on;
k.    To object the conduct of search where a witness has left during the course of the search proceedings;
l.    To insist that the witnesses should actually witness the search rather than complete the formality of their mere presence; he may also insist that the witnesses must sign all the inventories and statements and all documents prepared during the course of the search;
m.    To refuse to sign a panchanama which is not signed by the witnesses; and
n.    To record his objection, if any) to the conduct of witnesses who do not function in an independent and fair manner; such objections can be lodged by filing a letter with the authorized officer or by making suitable remarks on the panchanama.