But the Police officer must record in writing the reasons for his making a search. He must clearly record the grounds of his belief and specification of the thing for which search is to be made. Omission to mention these grounds would amount to gross violation of the provisions of this section.
The other provisions of this Code as to search warrant and general provisions as to searches contained in Section 100 Cr PC shall so far as may be, applicable to a search made under this section.
The search contemplated under this section must be for particular things, documents or specified materials necessary for the purpose of investigation. The section does not permit a general search.
Thus where a police officer searches a house for stolen articles generally not for any particular article mentioned by the complainant as having been stolen from him, such a search would be considered as a general search and hence not permissible under this section.
As far as possible, a search under Section 165 should be made personally by the police officer and he should avoid it to be made by his subordinate officer. It is only in exceptional cases that he may authorise his subordinate officer to make a search under Section 165. But a search made by a subordinate officer without proper authority would be wholly illegal. The authorization should be in writing.
The Supreme Court in Radha Kishan v. State held that resistance by the person whose premises were sought to be searched was justified when the search was being made by the police officer in contravention of Sections 100 and 165 of the Cr. P.C. But the Apex Court observed that even if the search is illegal it does not justify any obstruction or any criminal act against the officer conducting the search after search and seizure are complete.
Illegality of a search will not affect the articles or recovery of articles and subsequent trial cannot be vitiated only on this sole ground.
In state of Himachal Pradesh v. Sukh Ram, recovery of 54 bottles of liquor from the conscious possession of the accused was proved on the record beyond any reasonable doubt and nothing had come on record to show as to what prejudice has been caused to the accused due to non-compliance of the provisions of Section 165 of the Code and, therefore, there is no reason to hold the search illegal.
The Supreme Court, in State of Punjab v. Balbir Singh has expressed a view that in a case coming under NDPS Act, if a police officer comes across a person in possession of narcotic drugs or psychotropic substances, he may make search himself if empowered under the NDPS Act or in the alternative, he may inform the empowered officer, who would make search under the Act. But if the search has already been completed in course of investigation under Section 165 Cr. P.C., then the question of complying with provisions relating search as contained in Section 50 of NDPS Act would not arise at all.