Investigating Officer Cannot Compel Statutory Authority To Create Information; Can Only Seek Existing Documents U/S 94 BNSS: Kerala High Court
Court reiterates that Section 94 BNSS permits summoning of documents or things only if they are already in existence and in the possession or control of the person concerned.
Justice CS Dias, Kerala High Court
The Kerala High Court has held that under Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), an Investigating Officer cannot direct a statutory authority to create information for the purpose of investigation, and can only require production of documents or things already in existence and within its possession.
The Court, while emphasising the importance of institutional cooperation in grave offences under the NDPS Act, drew a clear legal distinction between production and creation of evidence. It reiterated that Section 94 BNSS permits summoning of documents or things only if they are already in existence and in the possession or control of the person concerned. Furthermore, that no authority can be compelled to generate or compile new information to satisfy an investigative requirement.
Justice C.S. Dias observed, “On a careful analysis of the scope and scheme of Section 94 BNSS, read with Section 67 of the NDPS Act, and its interpretations in the above decisions, it is trite that only a document or a thing, which is in the possession of a person from whom it is sought to be summoned, can be directed to be produced. The person cannot be expected to create a document or thing to be furnished to the Investigating Agency… I am of the definite view that the attendance/duty register of customs officers who were on duty in the Thiruvananthapuram International Airport on 09.07.2025 is to be furnished to the 2nd respondent, which would serve the purpose of the investigation.”.
Advocate P.G. Jayashankar appeared for the petitioner and Seetha S, Senior PP appeared for the respondent.
The matter pertained to an NDPS case involving alleged drug smuggling of methamphetamine from Muscat to Thiruvananthapuram, which led the Investigating Officer to seek details such as names, addresses, and phone numbers of the customs officers on duty at the airport during a specific time.
When the Customs Department did not respond, an order was passed by the Additional Sessions Judge, Thiruvananthapuram, directing the Deputy Commissioner of Customs at Thiruvananthapuram International Airport to furnish the details.
The Customs Department challenging the order, contended that it was not legally bound to compile such information and that Section 94 BNSS (Section 91 CrPC) only empowers authorities to summon documents already in existence and in possession, not to create fresh data.
The prosecution, on the other hand, argued that the information was crucial to unravel a drug smuggling conspiracy involving transportation of contraband from Muscat to India, and that authorities are duty-bound to cooperate in such serious investigations.
The Court found that while the direction to furnish compiled details (names, phone numbers, etc.) was impermissible, the attendance or duty register of officers, being an existing record, could legitimately be sought.
The Bench after considering the facts, noted, “In the case at hand, the petitioner ought to have, at the very least, exhibited the basic administrative courtesy of responding to the letters issued by the 2nd respondent, either by furnishing the details sought, by seeking clarification, or by expressing any genuine difficulty in supplying the information. Instead, the petitioner chose a course of silence, thereby driving the 2nd respondent to invoke the jurisdiction of the above Court”.
“…It must be borne in mind that the 2nd respondent is investigating a serious case of international drug trafficking, a menace that has assumed alarming proportions and continues to inflict grave harm on the society. It was incumbent upon the petitioner to extend full cooperation to the investigation rather than maintaining an attitude of detachment or evasion. Any reluctance in this regard may legitimately give rise to an inference that there is an attempt, whether deliberate or otherwise, to shield certain individuals from the reach of the law”, the Bench further noted.
Accordingly, the Court modified the impugned order and directed the Customs authority to produce the duty register of officers on duty during the relevant period within one week, while clarifying that further requests must also conform to the statutory limits.
Cause Title: Deputy Commissioner Of Customs v. State Of Kerala & Anr. [Neutral Citation: 2026:KER:21518
Appearances:
Petitioner: P.G. Jayashankar, Advocate.
Respondent: Seetha S, SR PP.