Section 42 NDPS Applies to Planned Shop Search: Raj HC

Section 42 Applies Where Police Set Out to Search a Shop: Rajasthan High Court Quashes 1990 Opium Conviction

Published: 10 October 2026 · NyayVidhan

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).

Key holdings

Section 42 is attracted by the proposal to search premises; a recovery made outside by chance does not take the case out of it (paras 53, 55).

Without recorded grounds for proceeding without a warrant, sent to superiors within 72 hours, the search is fundamentally void (paras 54, 56).

Section 50 applies where both the person and a box held in his hands are searched (paras 37-39).

Recovery witnesses turning hostile does not defeat the prosecution where they admit their signatures on the recovery memo (para 32).

Brief Facts

Directed by the Superintendent of Police, Barmer to search the shop and residence of a man said to be dealing in opium, the SHO set out for the premises; before the police reached the shop, the appellant, the man's son, ran from it carrying a box and was caught (paras 2-4, 15). After he declined to be searched before a Magistrate or Gazetted Officer, the box was found to hold 8.5 kg of opium (paras 5, 7). On 29.08.1990 the Additional Sessions Judge, Barmer convicted him under Sections 8 and 18 and sentenced him to 10 years' rigorous imprisonment and a Rs 1,00,000 fine (para 1).

Court's Findings

The Court held the recovery proved despite hostile recovery witnesses, and rejected the tampering argument based on the sample falling from 30 to 28 grams (paras 32-36). Section 50 applied because both the appellant and the box in his hands were searched, as in S.K. Raju (paras 37-39). Applying Vijaysinh Chandubha Jadeja, it found Section 50 complied with: the recovery memo recorded the option and the officer had counselled him, which for a 1989 search was compliance as the law then stood (paras 43-48). But the officer had set out to search a shop and house on information, so Section 42 required a warrant or recorded grounds for proceeding without one, sent to superiors within 72 hours (paras 51-54). The recovery on the road was a matter of chance; otherwise police could stage recoveries just outside premises to evade Section 42 (paras 53, 55, 57). As no grounds were recorded or reported, the search was void, and with it the recovery and the conviction (paras 56, 58, 60).

Legal Principle

When police proceed on information to search a building such as a shop or house, Section 42 of the NDPS Act applies even if the accused is intercepted outside with the contraband. Without a warrant, or recorded grounds sent to superiors within 72 hours, the search is void and the conviction vitiated (paras 53-56, 60).

Precedents Relied Upon

Jagdish and Anr. v. State of Rajasthan 2011(1) Cr.L.R. (Raj.) 787
Relied Upon Discussed at ¶ 18, 59
Section 42 of the NDPS Act is not a mere technicality; information received at the police station must be written down and transmitted to superior officers.
S.K. Raju @ Abdul Haque @ Jagga v. State of West Bengal (2018) 9 SCC 708
Followed Discussed at ¶ 21, 39
Where the person as well as the bag he carries is searched, Section 50 is attracted, whether or not contraband is recovered from the person.
Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609
Relied Upon Discussed at ¶ 44
The obligation under Section 50(1) to apprise the suspect of his right to be searched before a Gazetted Officer or Magistrate is mandatory and requires strict compliance; substantial compliance is not enough.

View all precedents (9)

Rusi v. State of Rajasthan 1996 Cr.L.R. (Raj.) 1985
Distinguished Discussed at ¶ 25, 36
Lack of a seal memo prepared on the spot raised doubt about the FSL report; distinguished because here a seal impression was recorded.
Jeet Ram v. Narcotics Control Bureau, Chandigarh AIR 2020 SC 4313
Distinguished Discussed at ¶ 29, 37
Cited for the view that Section 50 does not apply to a search of a bag; distinguished because the charas there was recovered from under the counter of a dhaba.
Kallu Khan v. State of Rajasthan Criminal Appeal No. 1605/2021 (Supreme Court, decided 11.12.2021)
Distinguished Discussed at ¶ 29, 37
Cited for the view that Section 50 does not apply to a search of a bag; distinguished because the bag there was lying on a motorcycle.
Dayalu Kashyap v. State of Chhattisgarh Criminal Appeal No. 130/2022 (Supreme Court, decided 25.01.2022)
Distinguished Discussed at ¶ 29, 40
On its peculiar facts the search of the person and of a polythene bag carried in a Kanwad were held distinct.
Ladulal Gurjar v. State of Rajasthan 2020(1) Cr.L.R. (Raj.) 1
Distinguished Discussed at ¶ 20, 47
Section 50 must be complied with strictly; distinguished because the police there instructed the accused to accompany them, unlike the choice offered here.
Sanjeev and Anr. v. State of Himachal Pradesh Criminal Appeal No. 870/2016 (Supreme Court)
Distinguished Discussed at ¶ 20, 47
Section 50 must be complied with strictly; distinguished because the arrest memos there did not show that the accused were told of their choice.

Statutory Provisions

Section 42 Applies Where Police Set Out to Search a Shop: Rajasthan High Court Quashes 1990 Opium Conviction

Judgment Intelligence

Key holdings

Brief Facts

Court's Findings

Legal Principle

Precedents Relied Upon

Statutory Provisions

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