Section 42

The Supreme Court set aside a High Court judgment that had reversed an acquittal for carrying opium on a scooter. Section 50 may not apply to a vehicle search, but because the accused were also searched personally, the officer had to comply with it and did not (para 17). In 2019 a three-Judge Bench in State of Punjab v. Baljinder Singh held this decision ‘not correct’ for extending that benefit to the vehicle recovery.

The Supreme Court upheld the conviction of a woman found with 600 grams of heroin in a 1994 roadside search, and the acquittal of two men alleged to have supplied it (paras 6, 27-30). Section 50 prescribes no specific form: the suspect need only be made aware of the right to be searched before a Gazetted Officer or Magistrate (paras 21, 23). Section 42 covers a building, conveyance or enclosed place, while Section 43 covers public places (para 15).

The Supreme Court upheld the NDPS convictions of two men found with 200 grams of opium each, holding that Section 50 prescribes no particular form for telling a suspect of his right (paras 2, 7, 15). A notice asking whether they would give the officer the search or be searched by a gazetted officer or magistrate was enough, as in Joseph Fernandez (paras 9-10, 13). "No specific words are necessary to be used to convey existence of the right" (para 9).

The Supreme Court upheld the NDPS convictions of the occupants of a private car from which 820 grams of charas was recovered (paras 7, 30). Section 50 applies only to the personal search of a person, not to a vehicle, container, bag or premises (para 17). Once possession is established, the person claiming that it was not conscious must prove it, as Sections 35 and 54 recognise; the driver stood on no different footing (paras 27-29).

The Supreme Court set aside an NDPS conviction for possessing 11 grams of opium because the officer was not shown to have sent the recorded information to his superior under Section 42(2) and did not tell the accused of his Section 50 right. Asking him whether he should be searched before senior officers or a Gazetted officer was not enough; the accused had to be told of his right and given the option (paras 5-7).

The Supreme Court upheld an NDPS conviction for possessing 25 ampoules of Tidigesic, rejecting challenges under Sections 42, 50 and 57. Where information reached officers on patrol and immediate action was needed to catch the accused, not recording it first did not violate Section 42. Informing the accused orally of his Section 50 right is enough, and sending the FIR and records to the superior was substantial compliance with Section 57 (paras 7, 10, 12).

The Supreme Court set aside a ten-year NDPS sentence for possession of about 9 grams of charas because the police refused the accused's request to be searched before a Magistrate (paras 2, 6). Rejecting the State's plea that Section 50 does not apply when a gazetted officer searches, it held that the suspect's right "cannot be taken away, merely because the officer going to search happens to be a gazetted officer" (para 4).

The Supreme Court restored the acquittal of an auto-rickshaw driver found carrying charas worth Rs 5.29 lakh in gunny bags. The police inspector acted on a tip-off without writing it down or informing his superior, which was total non-compliance with Section 42 of the NDPS Act; such action becomes suspect and prejudices the accused. The driver also rebutted the Section 35 presumption of culpable mental state (paras 13, 17, 21-23).

A five-judge Constitution Bench of the Supreme Court held that an empowered officer about to search a person on prior information must inform him of his right to be searched before a Gazetted Officer or a Magistrate. Failure does not vitiate the trial, but renders the recovery suspect and vitiates a conviction resting only on contraband recovered from his person. Such contraband cannot by itself prove possession, and no Section 54 presumption can arise from an illegal search (paras 78, 93).

In this 1994 ruling the Supreme Court set out how the arrest and search safeguards of the NDPS Act work. An officer searching a person on prior information must tell him of his right to be searched before a Gazetted Officer or a Magistrate, and Section 50 is mandatory (paras 17, 21, 26). An arrest or search under the Act by an officer who is not empowered is illegal, while lapses under Sections 52 and 57 are tested for prejudice (paras 14, 25-26).