Night-Time NDPS Search Without Warrant Valid Where Urgent Action Justifies Delayed Section 42 Compliance: Rajasthan High Court

While rejecting a bail application in an NDPS matter, Rajasthan High Court affirmed that compliance under Section 42 of the NDPS Act (“Act”), may be postponed for a reasonable period, where the information was received by the police office while being on patrol duty or otherwise on move, and immediate action was called for.

Section 42 of the Act lays down process to conduct search and seizure.

Proviso II to Section 42(1) provides that if the search had to be conducted between sunset and sunrise (during the night hours), normally warrant was needed. However, if obtaining a warrant may allow the offender to remove or conceal the drugs/evidence, officer could conduct the search without a warrant, but must record the reasons for doing so.

Section 42(2) of the Act provides that the information received as well as the reasons recorded under Section 42(1) shall be sent by the officer to his immediate senior within 72 hours.

The bench of Justice Baljinder Singh Sandhu was hearing a bail application in which the search, seizure and subsequent arrest was conducted by the concerned official after sunset, without a warrant.

It was argued by the petitioners that since the search was conducted between sunset and sunrise, statutory safeguards under Section 42 were attracted. It was submitted that even though the information was received at around 8:30 pm, no warrant was obtained by the office despite sufficient time being available.

Further, there was no document to demonstrate the fact that the superior officials were informed of the information as well as the reasons for not obtaining the warrant, within 72 hours as required under Section 42(2). The alleged document was an afterthought, prepared subsequently.

After hearing the contentions, the Court referred to the Supreme Court case of Karnail Singh v State of Karyana which observed,

“…where information is received while the officer is on patrol duty or otherwise on the move and calls for immediate action, compliance with Section 42 may, in an emergent situation, be postponed for a reasonable period. However, total non-compliance with the requirements of Section 42(1) and (2) is impermissible.”

It was held that in the present case, the secret information was received by the official when he was on patrol duty in the area, that also informed of the requirement of immediate action.

The Court highlighted that this information was put into writing, and the grounds for proceeding without obtaining a warrant were also recorded. This memo was forwarded to the immediate superior before proceeding to the concerned place to take necessary action.

“The grounds so recorded disclose an apprehension that delay in obtaining the search warrant would afford an opportunity for concealment or removal of the contraband.”

Subsequently, the accused were found at the place with contrabands, more than the commercial quantity, and both were arrested on the spot.

Hence, it was concluded that, both the received information, as well as grounds for proceeding without arrest, were forwarded before the search. The Court held, the fact that the search was conducted during the night hours, by itself, could not render the search contrary to Section 42 of the Act.

The Court also rejected the argument of there being sufficient time between the receipt of the information and the search, to obtain the warrant, and held that firstly, this contention, by itself did not render the action of the official violative of Section 42, and secondly, there was no such time lapse.

Accordingly, the Court highlighted that the grounds recorded by the official were satisfactory, and no ground for granting bail was made out. Hence, the bail application was dismissed.

Title: Nand Kishore v State of Rajasthan

Citation: 2026 LiveLaw (Raj) 365

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