Sec.42(1) NDPS Act Applicable In Case Of Search Of Private Vehicle On Public Road: Kerala High Court Grants Bail Citing Non-Compliance

The High Court was considering an application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), whereby the applicant sought regular bail in a case registered under Sections 22(c) and 8(c) r/w 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

The Single Bench of Justice Kauser Edappagath held, “In other words, if a private vehicle is searched in a public place based on prior information, Section 43 is not attracted and compliance with Section 42 is mandatory.”

“There cannot be any doubt that total non-compliance of Section 42 of the NDPS act can be taken into account even at the time of considering the bail application. When there is total non-compliance of the provisions of Section 42 of the NDPS Act, the rigour of Section 37 of the NDPS Act cannot be attributed against the accused. In case of search of a private vehicle on a public road on receipt of information, provisions of Section 42(1) and not 43 would be applicable. On failure to comply with the said provision, the accused is entitled to be released on bail”, it added.

Advocate P.S. Anishad represented the Applicant, while Senior Public Prosecutor Sreeja V. represented the Respondent.

Factual Background

It was the case of the prosecution that near Pampampallam Toll Plaza at Walayar, the first and second accused persons were found transporting 56.68 grams of MDMA in a motorcycle, and the applicant, as well as the other two accused, were escorted in an Alto car.

Reasoning

The Bench noted that the seizure from the first accused was done when he was travelling in a private vehicle, at midnight, based on prior information. The Bench referred to Sections 42 and 43 of the NDPS Act which outline the powers of the authorised officers to conduct search, seizure and arrest without a warrant.

The Bench further explained, “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 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 for searching the vehicle between sunset and sunrise.”

The Bench also reiterated that the provisions of Section 42(1), which require recording of reasons for belief before effecting a search between sunset and sunrise, are mandatory and non-compliance thereof would vitiate the entire proceedings. “It is equally settled that while considering the bail application, compliance with Section 42 is mandatory and is a relevant factor to be taken into account”, it added.

Considering that the seizure was effected from a person travelling in a private vehicle in a public place upon receipt of information, the Bench held that the provisions of Section 42(1) and not Section 43 would be applicable. Further noting that there was nothing to show that the detecting officer had recorded the ground for belief as contemplated under the proviso to Section 42(1), the Bench stated, “Therefore, there is total non-compliance with Section 42.”

The Bench thus held that the seizure was vitiated and released the applicant on bail.

Cause Title: Sudin Babu v. State of Kerala (Neutral Citation: 2026:KER:43659)

Appearance

Applicant: Advocates P.S. Anishad, Sreeparvathi G.V.

Respondent: Senior Public Prosecutor Sreeja V.

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