Section 41: Power to issue warrant and authorisation

1[41. Power to issue warrant and authorisation.– (l) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe 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:

(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer 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 in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence 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 place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.

(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42.]

1. Subs. by Act 9 of 2001, s. 19, for sections 41 to 43 (w.e.f. 2-10-2001).

Simplified Explanation

Section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) outlines the powers of magistrates and law enforcement officers to issue warrants for the arrest or search of individuals and places suspected of involvement in narcotic crimes. This section is critical in enabling authorities to take action against drug-related offenses while ensuring that searches and arrests are conducted in a lawful and regulated manner.

Here’s a detailed explanation of each sub-section:

Subsection (1): Magistrate’s Power to Issue Warrant

• Authority to Issue Warrants:
  • A Metropolitan Magistrate, a Magistrate of the first class, or any Magistrate of the second class specifically authorized by the State Government has the power to issue a warrant.
• Purpose of Warrant: The magistrate can issue a warrant if there is reason to believe that an individual has committed an offense under the NDPS Act or if evidence of such a crime exists at a particular location. This includes:
  • Arrest: A warrant for arrest can be issued if the magistrate believes a person has committed an offense under the Act.
  • Search: The magistrate can authorize the search of buildings, conveyances (such as vehicles), or other places where there is reason to believe that narcotic drugs, psychotropic substances, or related evidence (e.g., documents or illegally acquired property) are being concealed or kept.
  • The search can be conducted at any time of the day or night, emphasizing that urgency may be involved in some situations.

Subsection (2): Authorization for Arrest or Search by Officers

• Power of Authorized Officers: This provision expands the authority beyond magistrates to include officers of gazetted rank in certain government departments and forces (e.g., central excise, narcotics, customs, revenue intelligence, etc.), provided they are empowered by either general or special order from the Central or State Government.
  • Personal knowledge or written information: Such an officer may act if they have reason to believe, based on personal knowledge or written information, that an offense under the NDPS Act has been committed. They can take action such as:
    • Arresting the person
    • Searching premises (e.g., buildings, vehicles, places) where illegal substances or related evidence are believed to be stored.
  • Subordinate Officers: The empowered officer can authorize a subordinate officer (of higher rank than a peon, sepoy, or constable) to carry out the arrest or search, or the empowered officer may carry out the action themselves.
  • 24/7 Search and Arrest: Like magistrates, these officers are authorized to conduct searches and arrests at any time, both during the day and at night.

Subsection (3): Powers of Officers

• Powers of Authorized Officers: Any officer acting under a warrant issued by a magistrate (subsection 1) or an officer authorized to carry out an arrest or search (under subsection 2) will have all the powers provided under Section 42 of the Act.
  • Section 42 typically deals with the procedures related to the power of arrest and search by authorized officers, detailing how the operation must be carried out (e.g., ensuring documentation, giving reasons for actions, etc.).

Key Points

1. Authority to Search and Arrest: Both magistrates and authorized law enforcement officers (such as customs, narcotics, or police officers) can issue or execute warrants to search and arrest individuals involved in narcotic-related offenses.
2. Search at Any Time: Authorized searches and arrests can happen anytime, ensuring that authorities can act swiftly if they suspect a crime is being committed or if evidence is being concealed.
3. Officers Empowered by Government: Besides magistrates, officers from different central or state government departments, like excise, narcotics, or police, can also carry out these actions if empowered by the government.
4. Ensuring Legal Compliance: The officers executing the warrant or authorization are required to follow the proper legal procedures outlined in the Act, including documentation and giving reasons for the actions taken.

Purpose of Section 41

This section provides the legal framework for the arrest and search of individuals or premises suspected of being involved in drug-related offenses. By empowering both magistrates and specific government officers to issue and act on warrants, this provision helps in preventing the illegal trafficking and possession of narcotics, while ensuring that these actions are conducted in a lawful manner.