[42. Power of entry, search, seizure and arrest without warrant or authorisation.– (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
2[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that] if such officer 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, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]
1. Subs. by Act 9 of 2001, s. 19, for sections 41 to 43 (w.e.f. 2-10-2001).
2. Subs. by Act 16 of 2014, s. 16, for “Provided that” (w.e.f. 1-5-2014).
Simplified Explanation
Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) grants law enforcement officers the power to enter, search, seize, and arrest individuals or property suspected of involvement in narcotic offenses without a warrant or prior authorization from a magistrate. This is a significant provision, allowing officers to act swiftly when they have reasonable grounds to believe that an offense is being committed under the Act.
Here is a detailed explanation of each part of the section:
Subsection (1): Powers of Officers to Act Without a Warrant or Authorization
This subsection empowers officers superior in rank to a peon, sepoy, or constable from various government departments, including both Central and State agencies, to take immediate action without requiring a warrant or authorization under specific conditions.
- Eligible Officers: The officers must be:
- From departments like central excise, narcotics, customs, revenue intelligence, or other departments of the Central Government, including para-military or armed forces.
- From departments like revenue, drugs control, excise, or police of the State Government.
- These officers must be empowered either by general or special orders from the Central or State Government.
- Reasonable Belief: The officer must have a reason to believe (based on personal knowledge or information from a reliable source that has been recorded in writing) that:
- Narcotic drugs, psychotropic substances, or controlled substances are kept or concealed at a particular location (building, conveyance, or enclosed space).
- Evidence of an offense has been committed, or evidence related to illegally acquired property is present, and the evidence is liable for seizure, freezing, or forfeiture.
- Actionable Powers: Based on this belief, the officer can:
- Enter and search the building, conveyance, or place between sunrise and sunset (during daylight hours).
- If there is resistance, the officer can break open doors or remove any obstacles to gain access.
- Seize the narcotic drugs, materials related to their manufacture, any illegal property, and documents that could serve as evidence of the offense.
- Detain and search any person whom the officer believes has committed an offense under the Act, and if necessary, arrest them.
Subsection (2): Powers for Search Between Sunset and Sunrise
This subsection allows the same powers as subsection (1) but with additional provisions:
- Search at Night: If an officer believes that it is not possible to obtain a search warrant or authorization in time (for example, if waiting for authorization might lead to the concealment of evidence or the escape of an offender), they are authorized to act between sunset and sunrise.
- Recording Grounds for Belief: Before acting, the officer must record the reasons for their belief that immediate action is necessary, ensuring accountability and transparency.
- The officer must also notify their immediate superior within 72 hours about the action taken.
Key Points to Note
- No Warrant or Authorization Needed: Officers have the power to act immediately without waiting for a magistrate’s warrant or other authorizations, provided they have reasonable belief.
- Search and Arrest Powers: Officers can enter, search, seize, and arrest individuals involved in drug-related crimes, ensuring swift enforcement of the law.
- Protection Against Concealment: If a delay in obtaining a warrant could result in evidence being hidden or suspects fleeing, the officer is allowed to search at night (with appropriate documentation).
- Immediate Reporting: Officers must report their actions to their superiors within 72 hours, maintaining checks on their powers.
Purpose of Section 42
This provision is crucial for enabling law enforcement officers to act swiftly and effectively against narcotic crimes. It allows them to take preventive actions when they suspect illegal drug activities, ensuring that evidence is not lost and offenders are apprehended without unnecessary delays. However, the requirement to report actions and record reasons ensures that these powers are not abused and that the actions of officers are accountable and transparent.
