Case Note & Summary
The High Court of Judicature for Rajasthan at Jodhpur considered a bail application filed by the petitioner under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the rejection of his bail by the Additional Sessions Judge, Desuri, District Pali, in Criminal Misc. Application No.20/2025 dated 29.01.2025. The petitioner was accused in F.I.R. No.24/2024 registered at Police Station Desuri for offences under Sections 8/15 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The facts as per the prosecution were that on 12.02.2024, during a routine Nakabandi, the police received secret information at about 5:00 AM that a pickup vehicle carrying poppy husk, escorted by a small car, would travel from Charbhuja to Nadol. The Baleno car was intercepted first, and its occupants were identified as Surender Singh and Dewa Ram. Shortly thereafter, a white pickup bearing registration No. RJ-19 GC-7267 attempted to take a U-turn upon noticing the police. The police chased and overtook it; two occupants fled, and the driver disclosed his name as Arjun, son of Hariram. He stated that the fleeing persons were Dinesh and Gopal Dewasi, and that the pickup contained sacks of poppy husk. After serving a notice under Section 50 of the NDPS Act, the police searched the vehicle and recovered 162.800 kg of poppy husk. The petitioner was found to be both the driver and owner of the vehicle. He was arrested and the FIR registered. After investigation, charge-sheet was filed, but trial had not commenced and charges had not been framed. The trial court informed this Court that proceedings were pending due to non-service of arrest warrant upon co-accused Devaram, whose bail bonds had been forfeited and who remained absconding. The petitioner raised two primary grounds: non-compliance with mandatory provisions of Section 42 of the NDPS Act, as no information was forwarded to superior officers under Section 42(2) and no authorization was obtained under Section 42(1) for search conducted between sunset and sunrise; and long incarceration since 12.02.2024 with no delay attributable to the accused, no criminal antecedents, and no apprehension of criminal activity if released. The Public Prosecutor opposed bail, contending that the case involved chance recovery, so Section 42 did not apply; because commercial quantity was recovered, Section 37 embargo applied, and the accused had not satisfied the twin conditions. The court examined Section 42 of the NDPS Act and noted that the power to enter, search, seize, and arrest without warrant or authorization ordinarily must be exercised between sunrise and sunset. For search between sunset and sunrise, authorization under Section 41 is mandatory unless the proviso to Section 42(1) is satisfied by recording grounds of belief that obtaining a warrant or authorization would afford opportunity for concealment of evidence or escape of offender. Section 42(2) requires forwarding a copy of recorded grounds to the immediate official superior within seventy-two hours. The court emphasized that compliance with Section 42 has been held mandatory by the Supreme Court. It quoted the Constitution Bench in Karnail Singh v. State of Haryana, (2009) 8 SCC 539, which summarized that an officer receiving information must record it in writing and forthwith send a copy to superior before taking action, but in emergent situations where delay would result in evidence being removed or destroyed, the officer may take action first and thereafter record and inform the superior as soon as practicable. The excerpt provided ends before the final operative order, so the outcome is not stated in the available text.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Search and Seizure - Mandatory compliance with Section 42 for search between sunset and sunrise - Section 42(1) and 42(2) - The court examined Section 42 and noted that powers under Section 42(1) are ordinarily to be exercised between sunrise and sunset; for search between sunset and sunrise, authorization under Section 41 is mandatory unless the proviso is satisfied by recording grounds of belief that obtaining warrant/authorization would afford opportunity for concealment or escape; Section 42(2) requires forwarding copy of recorded grounds to immediate superior within 72 hours. The court quoted the Constitution Bench in Karnail Singh v. State of Haryana, (2009) 8 SCC 539, which held that compliance with Sections 42(1) and 42(2) is mandatory, but in emergent situations, the officer may take action and thereafter record and inform the superior as soon as practicable. Held that compliance is mandatory (Paras 6-6.2).
Issue of Consideration
Whether the bail application should be allowed considering alleged non-compliance with Section 42 NDPS Act and long incarceration; whether Section 42 applies to chance recovery; whether Section 37 embargo applies for commercial quantity
Law Points
- Compliance with Section 42 of NDPS Act is mandatory
- search between sunset and sunrise requires authorization or compliance with proviso
- Section 42(2) requires forwarding copy to superior within 72 hours
- emergent situations allow post-facto compliance as per Karnail Singh v. State of Haryana
