Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20, 41, 42 – NDPS – Search, Seizure and arrest by Gazetted officer – Plea of noncompliance of section 42 NDPS Act – Held: It is made clear that when the gazetted officer himself makes arrest, search and seizure, he acts under Section 41 and, therefore, it is not necessary to comply with Section 42 of the Act. Conviction Upheld. (Para 22, 23, 25)
As regards applicability of Section 42, the Second proviso of Section 42 of the Act authorizes the Officer to proceed to the spot and enter into the building for search and seizure of the articles if he has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender. (Para 22)
Now, the moot question in the instant case is whether the compliance of provisions of Section 42 is at all necessary when the raid was conducted by the Gazetted Officer himself. (Para 23)
Hon’ble Supreme Court in Satrohan’s case (supra) held that Section 41(2) deals with two situations. One is relatable to gazetted officer while in the other case the gazetted officer may authorise his subordinate to do the relevant act or may do it himself. Section 41(3) refers to the power under Section 42 which refers to subordinates and, thus, it is made clear that when the gazetted officer himself makes arrest, search and seizure, he acts under Section 41 and, therefore, it is not necessary to comply with Section 42 of the Act. (Para 25)
HIGH COURT OF HIMACHAL PRADESH
2023 STPL(Web) 115 HP
[2023:HHC:9586-DB]
Rohtash Vs. State Of Himachal Pradesh
Criminal Appeal No. 434 of 2017-Decided on 23-08-2023.
https://stpllaw.in/wp-content/uploads/2023/08/2023-STPLWeb-115-HP.pdf
