S.42 NDPS Act | Gazetted Police Officer Can Cause Lawful Search Of Enclosed Spaces 'Whether By Day Or Night': P&H High Court

To summarize (I) the provisions of Section 42 of the Act, are applicable to search of buildings, conveyance, and, enclosed space, but the above may apply upon "any prior information" being recevied by the investigating officer concerned, and, also when searches' thereof, become conducted in the interregnum inter-se sunset, and, sunrise.

The bench comprising Justice Sureshwar Thakur further added the said provisions are applicable only to the designated officers, who are not of the rank of a Gazetted Officer.

The court was dealing with a case where recovery of 500 grams of heroin was made from the petitioner's car which makes it to fall within the ambit of commercial quantity thereof attracting the rigors of Section 37 of the NDPS Act.

The court noted that unless the counsel for the petitioner demonstrates that, there are blatant flagrant breaches, upon the relevant statutory provisions, this Court would will not admit the plea for regular bail.

In the instant case, the Court disagreed with the submission of the counsel for the petitioner in establishing that, a deep, and, pervasive breach, has been caused to the mandate occurring in Section 42 of the Act which deals with power of entry, search, seizure and arrest without warrant or authorisation, for the reason that the search of the crime vehicle inter-se sunset, and, sunrise, were done in the presence of a Gazetted Officer.

The primary reason for disagreeing, with the above submission, is founded, upon the factum that, the play of Section 42 erupts, upon a prior information being held by officers, lesser in rank to a gazetted police officer, but if, the relevant proceedings appertaining to search of the crime vehicle, especially, upon their occurring, in the interregnum inter-se sunset, and, sunrise, and, they become drawn by or in the presence of a Gazetted Officer, thereupon the mandate of Section 41(2), of the Act, becomes aroused, ……….

Court further noted that a perusal of Section 42(1) of the NDPS Act, apply to officers, superior in rank to a peon, sepoy or constable, but not co-equal to or equivalent, in rank to a Gazetted Officer.

However, regarding prior information, leading to search of, and, seizure from a conveyance in the interregnum inter-se sunset, and, sunrise, held by an officer of a gazetted rank, of the Excise or Police or other Departments, of the Central or the State Government, are in consonance with the mandate carried in sub-Section 1 of Section 42 of the Act.

Coming on to the mandate embodied under sub-Section 2 of Section 41, the court observed that the Gazetted Rank Officer of Police or of the Excise Department, either personally or through authorizing any officer subordinate to him (superior in rank to peon, sepoy or constable) can make the lawful arrest of the offender, at the crime site, and, can also make lawful search of the building or conveyance or place "whether by day or by night", and, the above valid actions may ensue even from a prior intimation.

Therefore, the court held that provisions of Section 42 of the Act, are applicable to search of buildings, conveyance, and, enclosed space, upon receipt of prior information by the investigating officer concerned when searches are conducted in the interregnum inter-se sunset, and, sunrise.

Court further held that such search in the interregnum inter-se sunset, and, sunrise should be made by a Gazetted Rank Officer, and/or, in his presence or under his authorization, by officials mentioned in sub Section 1 of Section 42 of the Act.

Regarding the conveyance carried in the sub-Section 1 of Section 41, and, in sub-Section 1 of Section, 42, the court noted that it appertains to a conveyance shuttered with doors.

In sequel, the above doorless mode of transport, can even, if there is any prior information, qua contraband, becoming carried therein, rather become lawfully searched, even in the interregunm interse sunset, and, sunrise, and, also by any police officer of any rank, even if he has no valid search warrants or authorizations, nor is he required to abide by the last proviso engrafted in Section 42 of the Act.

Accordingly, finding no merit in the instant petition, the court dismissed the same.

Case Title: NAVJOT SINGH @ JOTA Versus STATE OF PUNJAB

Citation: 2022 LiveLaw (PH) 229 

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