Section 42

Doubting Kanhaiyalal and Raj Kumar Karwal, a two-judge Bench referred to a larger Bench whether an NDPS investigating officer is a police officer and whether a Section 67 statement can be treated as a confession (paras 28-29, 38-40). The NDPS Act "is purely penal in nature" (para 32). The appellant's further sentence was suspended and bail granted pending the reference (para 43).

The Supreme Court acquitted a hotel servant convicted of possessing 2.1 kg of opium found in a room next to the hotel kitchen, holding that possession under Section 18 of the NDPS Act "has to be conscious" and that a servant does not possess his master's contraband unless it was left in his custody under his absolute control (paras 2, 15-16). His confessions to Central Bureau of Narcotics officers were held admissible and voluntary, but showed only that he was the owners' servant (paras 10, 13, 15).

The Rajasthan High Court acquitted two men convicted of keeping ganja, doda powder and opium, holding that when secret information is received at the police station, Section 42 of the NDPS Act requires it to be written down and sent to superior officers in writing; a wireless message suffices only for a patrolling party. With no proof of written transmission or of the Section 42(2) report, the trial was vitiated (paras 20-25).

A five-Judge Constitution Bench held that Section 50(1) of the NDPS Act obliges the empowered officer to inform a suspect of his right to be searched before a Gazetted Officer or a Magistrate, and that this obligation is mandatory and requires strict compliance. Merely asking whether the suspect wishes to be so searched is not enough, and the "substantial compliance" view in Joseph Fernandez and Prabha Shankar Dubey was rejected (paras 18, 21-22).

The Supreme Court dismissed a special leave petition against a conviction for six bags of poppy husk of 32 kg each. It held that a wireless message to the DSP on reaching the spot, followed by a ruqa sent from the spot on which the FIR was registered, was substantial compliance with Section 42 of the NDPS Act, as no prejudice was shown. Section 57 is not mandatory, and conscious possession was proved (paras 12-15).

The Supreme Court upheld a ten-year sentence for 500 grams of charas found in a bag the appellant carried on his shoulder (paras 2, 5, 24). Section 50 applies only to a search of the person, not to a bag, briefcase or container (paras 13-15). Independent corroboration is normally expected but is not an inviolable rule (para 16), and parity in sentencing did not help because the other man was tried separately on a separate FIR (para 23).

A five-judge Constitution Bench of the Supreme Court, in Karnail Singh v. State of Haryana, (2009) 8 SCC 539, resolved the conflict between Abdul Rashid and Sajan Abraham on Section 42 of the NDPS Act. Information must ordinarily be written down and sent to the superior officer before a search, but if it is received on the move and calls for immediate action, recording may follow. Total non-compliance is impermissible; delayed compliance with a satisfactory explanation is acceptable (paras 11, 17).

The Supreme Court upheld a charas conviction from Bharuch, rejecting the plea that Section 42 of the NDPS Act was breached. The information reached the police officer while he was investigating another NDPS case, so Section 42 need not be followed in all cases; even so, he had written it down and sent it to his superiors. The plea that he was not an empowered officer was raised too late (paras 11-14).

The Supreme Court set aside the Allahabad High Court's acquittal of a man found with 309 kg of poppy straw and restored his conviction (para 17). Opium and poppy straw are distinct under the NDPS Act, so linking the seizure to his father's opium licence had no foundation, and his Section 67 statement had never been retracted (paras 6-7, 10, 16). Through M. Prabhulal, the Court noted that a Gazetted Officer acting under Section 41 need not comply with Section 42 (para 13).

In this 2008 ruling the Supreme Court upheld an NDPS conviction resting on the accused's own statement under Section 67, holding that such a statement to an empowered officer can be used as a confession against its maker and is outside Sections 24 to 27 of the Evidence Act (paras 38, 40). Following Raj Kumar Karwal, it treated these officers as not police officers (paras 37-38). The ruling was later overruled by a majority of the Supreme Court in Tofan Singh v. State of Tamil Nadu (2020).

The Supreme Court upheld the Bombay High Court's acquittal of a man convicted under the NDPS Act, because the officer who received the secret information never reduced it to writing as Section 42 requires (paras 5, 19, 25). Although a hotel is a public place under Section 43, the Court said a room occupied by a guest may not be, and that the guest "is entitled to his right of privacy" (para 14).

The Supreme Court restored the NDPS conviction of a man from whose scooter 700 grams of opium was recovered, holding that Section 42 does not apply when a police officer on patrol stops and searches a vehicle in transit in a public place (paras 2, 7-9). Following Jarnail Singh, such a seizure falls under Section 43, which has no proviso requiring recorded grounds (para 8). "Section 42 has no application to the facts of the case" (para 9).