Grounds Of Belief As Mandated U/S.42 NDPS Act Didn’t Contain Reasons For Searching Conveyance Without Warrant: Kerala High Court Grants Bail
The Kerala High Court was considering the regular bail applications filed by the accused persons booked under Section 22(c) of the NDPS Act.
Justice Kauser Edappagath, Kerala High Court
The Kerala High Court has granted bail in a case pertaining to the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) after noting that the grounds of belief could not be treated as grounds of belief under Section 42 of the NDPS Act since they did not contain any reasons recorded by the detecting officer for conducting the search in a conveyance without obtaining a warrant.
The High Court also held that an authorised officer who conducts a search in the conveyance without a warrant between sunset and sunrise, upon prior information, has to prepare a ground of belief and send a copy of the same to his immediate superior officer within seventy-two hours.
The High Court was considering the regular bail applications filed by the accused persons booked under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
The Single Bench of Justice Kauser Edappagath held, “As stated already, an authorised officer who conducts search in the conveyance without a warrant between sunset and sunrise, upon prior information, has to prepare a ground of belief and send a copy of the same to his immediate superior officer within seventy two hours. In both crimes, the detecting officer has no case that he obtained a warrant from the Magistrate concerned before the search and seizure.”
Factual Background
The applicants were alleged to have possessed the narcotic drugs in commercial quantities. The contraband involved in both crimes was seized between sunset and sunrise from private vehicles running through public roads.
Arguments
The primary contention of the appellants was that since the alleged search and seizure in both crimes were conducted based on prior information, in private vehicles, between sunset and sunrise, without obtaining a warrant from the jurisdictional Magistrate and without recording or forwarding any grounds of belief as mandated under Section 42 of the NDPS Act, the search and seizure were vitiated and the applicants were entitled to bail.
Reasoning
Referring to Sections 42 and 43 of the NDPS Act, which deal with the powers of authorised officers to conduct search, seizure, and arrest without a warrant, the Bench explained, “Sections 42 and 43 of the NDPS Act, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If the seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such provision in Section 43, and, therefore, it is obvious that if the public search is conducted in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42(1) of the NDPS Act for searching the vehicle between sunset and sunrise.”
“Conversely, if a private conveyance is searched in a public place, the officer making the search is required to record his satisfaction as contemplated by the proviso to Section 42(1) for searching the vehicle between sunset and sunrise”, it added.
On a perusal of the true copies of the grounds of belief prepared by the detecting officers in the respective crimes, the Bench noted that they did not contain any grounds of belief as contemplated under the proviso to Section 42(1). “Thus, the “grounds of belief’ mentioned in the proviso to Section 42(1) must contain the statutory satisfaction that obtaining a warrant or authorisation would have resulted in concealment of evidence or escape of offenders. Annexures 3 and 7 documents mentioned above, although prepared in the nomenclature “grounds of belief”, they cannot be treated as grounds of belief under Section 42 of the NDPS Act since they do not contain any reasons recorded by the detecting officer for conducting the search in a conveyance without obtaining a warrant so as to avoid concealment of evidence or escape by the offender”, it stated.
Thus, holding that there was a total non-compliance with the second limb of Section 42 of the NDPS Act, the Bench ordered the release of the applicants on bail.
Cause Title: Muhammed Sahal v. State Of Kerala (Neutral Citation: 2026:KER:45819)
Appearance
Petitioner: Advocates P. Mohamed Sabah, Libin Stanley, Saipooja, Sadik Ismayil, R. Gayathri, M.Mahin Hamza, Alwin Joseph, Benson Ambrose
Respondent: Senior Public Prosecutor Sreeja V.