Mandatory Safeguards of Section 42 NDPS Cannot Be Bypassed — Even When 1329 Kg of Hashish Is Seized: Gujarat High Court Affirms Acquittal

"Non-compliance of the mandatory provision of Section 42 is absolutely clear from the record — such non-compliance is impermissible under the law", Gujarat High Court affirmed the acquittal of accused persons in a massive NDPS case involving seizure of 1329 kg and 750 grams of hashish, holding that the DRI's brazen violation of the mandatory search and seizure provisions under Section 42 of the NDPS Act rendered the entire prosecution case infirm — regardless of the staggering quantity of contraband involved.

A Division Bench of Justice Hasmukh D. Suthar and Justice D.N. Ray dismissed the prosecution's appeal, making clear that procedural safeguards in the NDPS Act are not mere technicalities to be brushed aside when the seizure is large.

Background of the Case

On June 18, 1994, DRI officers raided a godown in Kadodara, Surat, and recovered 1329 kg and 750 grams of hashish packed in 48 bags. FSL analysis confirmed the substance as Cannabis Sativa. A chargesheet was filed before the Special Court, Surat, alleging criminal conspiracy and trafficking. After full trial, the Special Judge acquitted all accused on September 7, 1999, finding both that the prosecution failed to prove guilt beyond reasonable doubt and that mandatory provisions of Sections 42, 50 and 57 of the NDPS Act were violated. The prosecution filed an appeal — which remained pending for 27 years before the High Court finally decided it.

Court's Observations on Section 42

The Division Bench found the violation of Section 42 of the NDPS Act staring out from the record itself. Section 42 prescribes mandatory requirements that investigating officers must comply with before conducting search and seizure operations under the NDPS Act — requirements the Supreme Court has repeatedly and consistently held to be non-negotiable conditions for a valid prosecution.

The Court relied on a settled line of Supreme Court authority on this point. In Boota Singh v. State of Haryana (2021) 19 SCC 606, Karnail Singh v. State of Haryana (2009) 8 SCC 539, Sukhdev Singh v. State of Haryana (2013) 2 SCC 212, and State of Rajasthan v. Jagraj Singh @ Hansa (2016) 11 SCC 687, the Supreme Court has consistently held that the provisions of Section 42 are mandatory and their non-compliance is fatal to the prosecution case.

"The provision of search and seizure under Section 42 is mandatory and non-compliance of the mandatory provision of Section 42 is absolutely clear from the record. Such non-compliance is impermissible under the law."

The Court held that the Special Judge had committed no error in recording findings of non-compliance with Sections 42, 50 and 57 and the High Court on reappreciation of evidence found no reason to take a different view.

Why Quantity Cannot Override Procedure

The significance of this ruling lies in the Court's refusal to let the sheer scale of the seizure override the statutory mandate. Advocates practising in NDPS matters frequently encounter the argument from prosecution that procedural lapses should be overlooked where commercial quantities are involved. The Gujarat High Court rejected this approach entirely. Section 42 exists precisely because the NDPS Act confers extraordinary and draconian powers on investigating agencies — powers that carry equally stringent procedural obligations. The larger the seizure claimed, the more critical it is that the mandatory safeguards are observed, since the consequences for the accused are correspondingly severe.

The acquittal was affirmed and the prosecution appeal dismissed. The bail bonds of the accused were discharged and the record transmitted back to the Trial Court.

Date of Decision: March 27, 2026