S.42 NDPS Act | Non-Compliance With Search, Seizure & Arrest Procedures Fatal To Prosecution: Rajasthan High Court

The Rajasthan High Court recently granted bail to an accused on the ground that the seizing officer, while undertaking proceedings for search and seizure was not posted as SHO of the concerned police station, thereby violating the mandate under Section 42 of the NDPS Act and the subsequent notification issued by the State Government.

Justice Farjand Ali added that the NDPS Act had to be strictly followed and that non-compliance with the procedure mentioned therein regarding search and arrest should not be tolerated. 

“The NDPS Act is a statute comprising of stringent provisions which need to be followed in letter and in spirit and noncompliance of any stipulations specially the ones relating to the procedure followed during search, seizure and arrest, cannot be overlooked.”

The accused was charged under Sections 8 and 21 of the NDPS Act. The prosecution alleged that on 10.06.2022, Seizing Officer Bhanwar Lal, Sub-Inspector was in charge of the police station since SHO Rajveer Singh was not in the Station.

It was stated that when Sub-Inspector Bhanwar Lal was on patrol duty, he apprehended the petitioner-accused and a certain quantity of medicinal drug viz., Monocof Cough Syrup was recovered from a carton the accused was carrying.

Admittedly, the entire search and seizure were made by the Sub-Inspector and the investigation was conducted by the then SHO Rajveer Singh.

The Counsel appearing for the petitioner submitted that the seizing officer, while undertaking proceedings for search and seizure, was not posted as SHO of the concerned police station. It was contended that as per Section 42(1) of the NDPS Act only officers empowered by the Central or the State Government may conduct a search, seizure or arrest.

It was argued that a Sub-Inspector is not empowered to effect search, seizure and arrest under the Act as the notification dated October 16, 1986, issued by the State empowers only those Sub-Inspectors of Police posted as State House Officers to exercise the powers under Section 42. Thus, it was contended that the mandatory provisions of the NDPS Act were not complied with, and hence the recovery of the contraband was vitiated.

On the other hand, the Public Prosecutor submitted that the matter pertains to the recovery of 100 Bottles of Moncof cough syrup and the impediment contained under Section 37 of the Act will be attracted in the factual situation of the present case.

The Court noted that while enacting Section 42, the legislature put a complete ban on authorities apart from the ones mentioned in the Section to carry out the functions under the Act. It was further observed that the legislature had clearly empowered the persons mentioned therein and it has also been specified through the aforementioned notification as to who is authorised to do so.

“As per Section 42, only officers mentioned therein and so empowered can make the arrest or search as provided if they have reason to believe from personal knowledge or information. The specific rank of the officer and ‘reason to believe’ are two important requirements that are needed to be complied with necessarily. Firstly, the Magistrate or the Officers mentioned therein are empowered and secondly, they must have reason to believe that an offence under Chapter IV has been committed or that such arrest or search was necessary for other purposes mentioned in the Act,” the Court remarked.

It was pointed out by the Court that the sub-inspector was not posted as the SHO, and that the head constable who was actually posted as the SHO had further delegated his charge to him.

The Court opined:

“The latin maxim ‘delegata potestas non potest delegari’ which provides that once the power that has been delegated cannot be further delegated or in other words, a delegatee cannot further delegate the power delegated to him might operate in the present facts and circumstances of the case though the same remains a matter to be adjudicated after appreciation of evidence during trial.”

The Court further remarked that the non-compliance of mandatory provisions of the NDPS Act has to be dealt with strictly and added that it is imperative for the courts to be cautious while adjudicating such matters where seizure is concerned under the NDPS Act as no accused should be able to walk scot-free for want of proper implementation and following of the procedure established by law.

“The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution, Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to foreigners,” the Court said.

Thus, the Court granted bail to the accused on the grounds of non-compliance with statutory procedures.

Case Title: Ashok @ Mulla Ram v. State of Rajasthan

Click Here to Read/Download Order