🔰 Introduction

Section 42 of the NDPS Act provides exceptional powers to certain empowered officers of the Central and State Governments to conduct entry, search, seizure, and arrest without warrant or prior authorisation. While these powers are necessary for effective drug law enforcement, they also come with strict procedural safeguards to prevent misuse.

The section aims to strike a balance: it permits urgent intervention in cases where waiting for a warrant could lead to escape of the accused or destruction of evidence, but it mandates recording and reporting requirements to ensure accountability.

🏛️ Who Can Exercise Powers Under Section 42?

Only officers:

§  Superior in rank to a peon, sepoy, or constable, and

§  Specifically empowered by general or special order of the Central Government or State Government

Such officers may belong to the following departments:

§  Central: Central Excise, Narcotics, Customs, Directorate of Revenue Intelligence, Para-Military Forces, Armed Forces, or any other notified department.

§  State: Police, Excise, Drugs Control, Revenue, or any other department empowered by the State Government.

⚖️ Powers Granted Under Section 42(1)

      If an empowered officer has reason to believe, based on personal knowledge or credible information (reduced into writing), that narcotic drugs, psychotropic substances, controlled substances, documents, or illegally acquired property are concealed in any building, conveyance, or enclosed place, he may, between sunrise and sunset:

1. Enter and Search
• Enter such building, conveyance, or place.
• In case of resistance, break open doors and remove obstacles.
2. Seize
• Seize the drug or substance, materials used for manufacture, any animal or conveyance liable for confiscation, and documents furnishing evidence of the offence or illegally acquired property.
3. Detain and Arrest
• Detain and search any person, and arrest if there is reason to believe they have committed an offence under the NDPS Act.

Special Provision – Licensed Holders

      Where the search involves a person holding a valid licence under the NDPS Act, such powers may only be exercised by an officer not below the rank of Sub-Inspector.

Night Searches

      If the officer believes that delay in obtaining a warrant would allow concealment of evidence or escape of the offender, he may conduct a search between sunset and sunrise—but only after recording the grounds of his belief in writing.

      In short, during night time any empowered officer is authorized to conduct search, seizure and arrest only after recording his satisfaction for non-compliance of section 41.

📑 Section 42(2) – Reporting Requirement

Any officer who:

• Records information in writing, or
• Records grounds for his belief (for night searches)

➡️ Must send a copy to his immediate official superior within 72 hours.

This ensures oversight and prevents arbitrary action.

📜 Procedure to be Followed Under Section 42 NDPS Act : Two Situations

🔰 When the Officer is in the Police Station

• On receiving information under Section 42(1), the officer must:
1. Record it in writing in the prescribed register before initiating action under Section 42(1)(a)–(d).
2. Send a copy of such information to the immediate official superior within 72 hours.

⚖️ Note: Section 42 was amended w.e.f. 2.10.2001 to specifically allow 72 hours for compliance. The purpose of this relaxation was to uphold the objective of the Act without unduly prejudicing law enforcement.

• Non-compliance will not necessarily vitiate the trial if it does not cause prejudice to the accused.

🔰 When the Officer is Not in the Police Station

• If the officer receives information while on patrol duty, in the field, or on the move (e.g., via mobile phone or wireless):
1. Immediate recording may not be feasible.
2. The officer may directly proceed to act under Section 42(1)(a)–(d).
3. Thereafter, within 72 hours, the officer must:
• Record the information in writing, and
• Forthwith forward the same to the immediate superior.

This ensures that urgency is not compromised while still retaining accountability.

⚖️ Distinction Between the Two Situations

1. Normal Rule
• Recording in writing and sending a copy to the superior should precede search and seizure.
2. Emergent Circumstances
• If urgency demands immediate action, delayed compliance is permissible, but only with a satisfactory explanation.
3. Total Non-Compliance
• Neither recording the information nor informing the superior → impermissible and fatal to prosecution.
4. Illustrations
• If officer is in the police station with sufficient time but fails to record/report → clear violation.
• If officer acts first due to urgency but later records and reports → acceptable compliance.
5. Question of Fact
• Each case will turn on whether there was adequate/substantial compliance.

🧑‍⚖️ Key Case Law

1. State of Karnataka v. Dondusa Namasa Baddi (2010)
• Oral evidence of police officer is not sufficient compliance.
• If sufficient time existed to record/report but officer failed, violation of Section 42(2) stands.
2. Dalel Singh v. State of Haryana (2010)
• Wireless message to superior held as substantial compliance.
• Court recognised the role of technology in ensuring quick reporting.

📡 Advent of Technology

The Supreme Court has acknowledged that mobile phones, wireless services, and instant messaging have transformed police functioning.

• Instant communication can substitute for physical reporting in emergencies.
• Courts recognise that strict, inflexible interpretation of Section 42 may handicap enforcement.
• However, technological compliance must still be followed up by recording and forwarding in writing within 72 hours.

⚖️ Observation from Karnail Singh:

“If statutory provisions of Section 41(2) & 42(2) are interpreted as mandatory in all situations, it would disable officers from acting in emergencies and allow drug traffickers to escape on technical grounds.”

🧑‍⚖️ Judicial Interpretation of Section 42

The Supreme Court has clarified the scope of compliance under Section 42 through key judgments:

1. Abdul Rashid Ibrahim Mansoori v. State of Gujarat (2000) 2 SCC 513
• Held that compliance with Section 42 is mandatory.
• Failure to take down information in writing and send it to the superior officer prejudices the accused.
2. Sajjan Abraham v. State of Kerala (2001) 6 SCC 692
• Held that Section 42 is not mandatory; substantial compliance was sufficient.
3. Karnail Singh v. State of Haryana (2009) 8 SCC 539 (Constitution Bench): The judgement Harmonised the above two views.
• Total non-compliance is impermissible.
• Delayed compliance with valid explanation is acceptable.

If information is received in circumstances where immediate action is necessary, the officer may act first and record/report later, but with a satisfactory explanation. However, where sufficient time existed and the officer still failed to record or report, it is a clear violation of Section 42.

4.     Sukhdev Singh v. State of Haryana [AIR 2013 SC 953] : The Supreme Court examined the scope of compliance under Section 42 of the NDPS Act. The case involved an ASI who had received prior secret information regarding narcotics but failed to reduce it into writing or forward it to his superior officer. Since the offence was committed prior to the 2001 amendment, the unamended provision applied, which required that the information be communicated “forthwith” and not within the extended 72 hours provided under the amended law.

            The Court emphasized that Section 42 is a mandatory provision and acts as a critical safeguard against arbitrary action by enforcement officers. Total non-compliance, as in this case, could not be condoned or treated as “substantial compliance.” The prosecution’s failure to adhere to this statutory requirement was held to be a patent illegality that could not be cured.

            Accordingly, the Supreme Court allowed the appeal and acquitted the accused under Section 15 of the NDPS Act, reiterating that strict adherence to Section 42 is non-negotiable and that failure to follow it undermines the fairness and legality of the entire prosecution.

📊 Flow of Action Under Section 42

Conclusion

Section 42 of the NDPS Act is both a powerful enforcement tool and a procedural safeguard. It equips empowered officers to act swiftly without waiting for a warrant, especially in situations where evidence is at risk of destruction or the offender may escape. At the same time, it imposes strict requirements of recording information and reporting to superiors, ensuring accountability and judicial oversight. Judicial pronouncements, particularly the Constitution Bench ruling in Karnail Singh v. State of Haryana, have clarified that while total non-compliance is fatal to the prosecution, delayed compliance with satisfactory justification may still uphold the investigation. Ultimately, Section 42 is designed to balance the State’s imperative to fight drug crime with the constitutional rights of individuals.