Section 42

The Delhi High Court granted bail to two men from whom 12 kg of ganja each was allegedly recovered (paras 13, 28, 52). Applying Awadhesh Yadav, it held that invoking Section 29 on call-record material could not be faulted at the bail stage (paras 31-32). But unexplained Section 52A sampling gaps cast serious doubt on the prosecution case, and custody since 03.12.2020 with the trial at a nascent stage meant the Section 37 embargo did not bar bail (paras 38-42, 49-50).

The Supreme Court upheld a conviction for 1.25 kg of charas found in a bag the accused carried on his shoulder. Although Section 50 of the NDPS Act was breached by offering him a third option of being searched by the police officer, the provision did not apply because only the bag was searched. The Court also directed that, prospectively, a suspect's waiver of the right to be searched before a Gazetted Officer or Magistrate must be taken in writing (paras 27, 30, 63, 125).

The Rajasthan High Court quashed a 1990 conviction for 8.5 kg of opium, holding that police who set out to search a shop and house needed a warrant or recorded grounds under Section 42 of the NDPS Act, even though the accused was caught on the road outside. The Court found the recovery proved and Section 50 complied with, but the Section 42 breach made the search void (paras 32, 48, 53-61).

The Supreme Court upheld a conviction for possessing 900 grams of smack found beneath the seat of a motorcycle stopped by a police patrol (paras 2-4, 19). It held that the seizure was "a chance recovery on a public road" governed by Section 43 of the NDPS Act, that Section 50 applies to a personal search and not to a vehicle, and that ownership of the motorcycle and non-production of the contraband did not help the accused (paras 11-15).

The Supreme Court set aside bail granted by the Allahabad High Court to an accused found travelling from Dimapur towards Rampur in a car with 3.3 kg of morphine hidden near its wiper. That nothing was recovered from his person, and that the translator's endorsement on his Section 67 statement named a co-accused, did not meet the Section 37 test of reasonable grounds to believe he was not guilty (paras 21, 25, 30-32).

The Supreme Court acquitted three men convicted under Section 15 of the NDPS Act after 75 kg of poppy straw was found in a private jeep on a public road. A private vehicle is not a public place under the Explanation to Section 43, so Section 42 applied; the officer admittedly never recorded the secret information in writing, and total non-compliance with Section 42 is impermissible (paras 12-15).

In Tofan Singh v. State of Tamil Nadu, decided on 29 October 2020, a three-Judge Bench of the Supreme Court answered a reference on how far an accused's own words to NDPS officers can be used against him. By a 2:1 majority, Justices R.F. Nariman and Navin Sinha held that officers invested with powers under Section 53 of the NDPS Act are police officers under Section 25 of the Evidence Act, so a confession made to them cannot ground a conviction, and that a statement recorded under Section 67 cannot be used as a confession at trial. Raj Kumar Karwal and Kanhaiyalal were overruled (paras 153, 155). Justice Indira Banerjee dissented.

The Supreme Court upheld the conviction of a man found with 20 kg of ganja on his motorcycle, although both independent panch witnesses turned hostile. The evidence of police witnesses found reliable and trustworthy can sustain a conviction; the law does not require it to be corroborated by independent witnesses (para 8). Failure to prove who owned the motorcycle, or to recover it later, does not vitiate the trial (para 11). The five-year sentence was not reduced (para 12).

A five-Judge Constitution Bench of the Supreme Court held that an investigation is not vitiated merely because the informant or complainant police officer also investigated the case, and the accused is not entitled to acquittal on that ground alone (para 12). Bias or prejudice depends on the facts of each case and has to be established, not inferred (paras 11-12). The Bench overruled Mohan Lal v. State of Punjab and confined three earlier acquittals to their own facts (para 12).

A three-judge Bench of the Supreme Court dismissed an appeal against a conviction for possessing 1.5 kg of charas (paras 1-2, 13). Section 42 did not apply because the appellant was intercepted on a road, a public place governed by Section 43 (paras 7-8). Because his trousers were searched as well as his bag, Section 50 was attracted although the charas was in the bag, and it had been strictly complied with (paras 11-12).

The Supreme Court acquitted a man serving 15 years for possessing 59 kg of ganja because neither the seized ganja nor its sample was ever produced in court, the independent witnesses had turned hostile, and the prosecution gave no explanation (paras 5, 7-8). A forensic report alone could not confirm the seizure or that the substance was ganja, and police testimony alone was not safe (paras 7-8).

The Supreme Court set aside an NDPS conviction because the officer who raided the accused's house on secret information never recorded that information or reported it to his superior under Section 42. The State argued that the FIR, sent to the Superintendent of Police the same day, was enough. The Court held that the Section 42 procedure is separate from the Code of Criminal Procedure, and compliance with one does not show compliance with the other (paras 11, 13).