If you are stuck in such a situation, here is what to do.

A group of young adults, all over the legal age of 21, were recently subjected to a distressing encounter with law enforcement in the city of Raipur. The group, which included several young women, was smoking legally purchased cigarettes in an open, uncrowded area, careful not to disturb anyone. Suddenly, they were approached by police officers who immediately and wrongfully accused them of consuming narcotics.

The situation escalated when the officers began to intimidate the group, getting uncomfortably close to the female members. In a gross violation of procedure, one officer proceeded to check a woman’s handbag without her consent and in the absence of a female constable. When the group protested, explaining they were only smoking cigarettes, the police offered a baseless justification, claiming that the particular brand of imported cigarettes they were smoking was prohibited. The young adults pointed out that the same brand was sold openly in shops across the city, but their logical arguments were dismissed. This incident highlights a pattern of harassment where young people are targeted and intimidated under the guise of law enforcement, while others often smoke in public with impunity. It serves as a clear example of misuse of authority and targeting based on age and appearance.

Advice in such cases

If you find yourself in a similar situation, it is crucial to know how to respond to protect your rights.

• Remain Calm and Respectful: Do not get into a heated argument. Maintain a calm and polite demeanor, but be firm about your rights.
• Do Not Admit to False Allegations: Do not confess to any crime you have not committed. Politely state the facts as they are.
• Question the Grounds for Suspicion: Ask the officer calmly why you are being stopped or questioned. Inquire about the specific law you have allegedly violated.
• Know the Law: Smoking cigarettes is regulated by the Cigarettes and Other Tobacco Products Act (COTPA), 2003. It is prohibited only in specific “public places” like auditoriums, hospitals, public transport, etc. Smoking in an open area is generally not an offense unless a specific local notification prohibits it.
• Protect Your Rights During a Search: You have the right to deny a search of your person or belongings without a proper warrant or reasonable suspicion of a cognizable offense. Crucially, a woman can only be searched by a female officer with strict regard to decency, as mandated by law.
• Document the Incident: If it is safe to do so, try to record the interaction on your phone. Note down the officer’s name, badge number, the police vehicle number, and the exact time and location of the incident.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

Understanding the relevant legal provisions is your first line of defense against such harassment.

• The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA): Section 4 of this Act prohibits smoking in a “public place.” A public place is defined as any place to which the public has access, whether as of right or not, and includes places like auditoriums, hospital buildings, railway waiting rooms, amusement centres, restaurants, public offices, and public transport. Open spaces are generally not included unless specifically notified. The penalty for violation is a fine of up to Rs. 200.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Section 102(3) of the BNSS is critical. It mandates that whenever a search of a person is to be conducted on a female, it must be carried out by another female with strict regard to decency. A male officer searching a woman’s purse is a procedural violation.
• Bharatiya Nyaya Sanhita, 2023 (BNS): If the police action involves illegal restraint or threats, relevant sections of the BNS could apply. For instance, wrongful restraint (Section 141 BNS) or acts intended to insult the modesty of a woman (Section 73 BNS) could be invoked depending on the severity of the officers’ conduct.

If you are the complainant

If you decide to file a formal complaint against the police officers for harassment:

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• Draft a Detailed Complaint: Write down the entire sequence of events chronologically. Include the date, time, location, names/descriptions of the officers involved, and what was said and done. Mention any witnesses who were present.
• Submit the Complaint to a Senior Officer: You can submit your written complaint to a higher-ranking police official, such as the Superintendent of Police (SP) or the Commissioner of Police for that district or city.
• Approach the Police Complaints Authority (PCA): Many states have a PCA, an independent body to inquire into allegations of police misconduct. You can file a complaint directly with them.

If you are the victim

As a victim of police harassment, your immediate steps should focus on safety and evidence preservation.

• Document Everything: As soon as the incident is over, write down every detail you can remember while it’s fresh in your mind. If you have any injuries or feel distressed, note that down as well.
• Preserve Evidence: Keep the cigarette packet, any receipts, and save any video or audio recordings you may have made.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• File a Formal Complaint: You can file an FIR if the police actions constitute a cognizable offense (like wrongful confinement, extortion, or outraging modesty). If the police refuse to register an FIR, you can send a written complaint to the Superintendent of Police.
• Private Complaint to Magistrate: An alternative is to file a private complaint directly before the jurisdictional Magistrate under Section 222 of the BNSS, who can then order an investigation.

How the police behave in such cases

It is a known issue that some police officers may engage in such behaviour for various reasons:

• Targeting the Youth: Officers may perceive young people, especially in groups, as easy targets for intimidation or extortion.
• Misuse of Authority: Some officers exploit the public’s general fear and lack of legal knowledge to assert dominance or extract bribes.
• False Pretexts: They often invent non-existent rules, like a ban on a specific brand of legally sold cigarettes, to create a basis for harassment.
• Lack of Accountability: They often act this way believing they will not face any consequences for their actions, especially if the interaction is not recorded.

FAQs people normally have

Is it illegal to smoke in all public places in India?

No. The law under COTPA, 2003, prohibits smoking only in specific, enclosed “public places.” Smoking in open spaces like parks or streets is generally not an offense unless a specific local rule by the municipality or state government prohibits it. The fine for violation is minimal, typically up to Rs. 200.

Can a police officer search me or my bag just for smoking?

No. Smoking a legal cigarette is, at most, a petty violation of the COTPA Act. It does not give the police automatic grounds to search your person or belongings. A search can only be conducted if they have a reasonable and credible suspicion that you are in possession of contraband or have committed a more serious, cognizable offense. Furthermore, a woman’s search can only be conducted by a female officer.

What should I do if the police try to extort money?

Never pay a bribe. Paying a bribe is also an offense. Politely refuse and insist on being issued a formal challan or receipt if you have violated any law. State that you will pay the official fine in court. This often deters officers who are looking for a quick bribe.

What evidence is required?

To build a strong case against police harassment, the following evidence is crucial:

• Video or Audio Recording: This is the most powerful evidence.
• Eyewitness Testimony: The statements of friends or other bystanders who witnessed the event are very important.
• Officer’s Details: The name, rank, and badge number of the officer(s) involved.
• Photographs: Pictures of the location and the officers, if they can be taken safely.
• Physical Evidence: The cigarette pack to prove it was a legal product and not a narcotic.
• Written Record: A detailed, contemporaneous account of the incident written by you.

How long will the investigation take?

The timeline for resolving such a complaint can vary significantly. A departmental inquiry against a police officer can take several months, as it involves internal procedures. If a criminal case (FIR) is registered, the investigation and subsequent court proceedings will follow the timeline prescribed under the BNSS, which can also be a lengthy process, often stretching from several months to a few years depending on the complexity of the case and the efficiency of the legal system.

Advocate Sudhir Rao, Supreme Court of India