Non-Compliance With Section 42 NDPS Act During Night Search Of Private Vehicle Vitiates Proceedings, Rigour Of Section 37 Won't Apply: Kerala High Court

"Since there is a total non-compliance with Section 42 (1) of the NDPS Act, the rigour of Section 37 cannot be attributed against the applicants and they are entitled to be released on bail." Kerala High Court, in an order, held that the mandatory requirement of recording grounds of belief under Section 42(1) of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) applies when a private vehicle is searched at a public place between sunset and sunrise.

A single bench of Justice Kauser Edappagath observed that total non-compliance with these procedural safeguards at the stage of search and seizure entitles the accused to bail, notwithstanding the stringent "twin conditions" usually imposed by Section 37 of the NDPS Act for commercial quantities.

The case arose from Crime No. 1591/2025 of Vadakara Police Station, involving the seizure of narcotic drugs in commercial quantities from a Baleno car. The first accused (Nisar) was arrested on November 7, 2025, while the second accused (Rauf K.K.) was arrested subsequently on conspiracy allegations. The petitioners approached the High Court seeking regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), contending that the search was legally vitiated.

The primary question before the court was whether the search and seizure conducted in a private vehicle at a public place at night, based on prior information, required compliance with the proviso to Section 42(1) of the NDPS Act. The court was also called upon to determine if the total non-compliance with such mandatory provisions would allow the court to bypass the rigours of Section 37 while considering a bail application.

Search And Seizure Effected Between Sunset And Sunrise

The Court noted that the contraband was seized from the possession of the first accused, who was in a car on a public road, at 9:40 PM. The detecting officer had received prior information at 10:20 PM (sic) on the day of the incident regarding the transportation of the drugs. The bench emphasized that the seizure was effected between sunset and sunrise, which triggers specific procedural mandates under the NDPS Act.

Distinction Between Public Conveyance And Private Vehicle

The Court observed that it was not the case of the prosecution that the car driven by the accused was a public conveyance. It clarified the settled legal position that when a search is conducted in a private vehicle, even if located in a public place, the protections of Section 42 are invoked if the search occurs at night.

“It is settled that when the search and seizure are conducted in a private vehicle at a public place between sunset and sunrise, compliance with the proviso to Section 42(1) which requires the recording of the grounds of belief before effecting a search between sunset and sunrise, is mandatory.”

Applicability Of Section 42 Over Section 43

Justice Edappagath highlighted that since the seizure was from a person in a private vehicle based on prior information, Section 42(1) applied rather than Section 43. Section 43 generally deals with seizures in public places or in transit where prior information might not be the primary trigger. The Court found that the seizure mahazar failed to show that the detecting officer recorded the "grounds of belief" as contemplated under the statute.

“Since the seizure in this case was effected from a person travelling in a private vehicle at a public place, upon receipt of prior information, the provisions of Section 42(1) and not Section 43 would apply. There is nothing in the seizure mahazar to show that the detecting officer recorded the grounds of belief as contemplated under Section 42.”

Non-Compliance Vitiates Section 37 Rigour At Bail Stage

Relying on the precedent in Sudin Babu v. State of Kerala, the Court held that total non-compliance with Section 42 can be considered even at the stage of bail. Typically, Section 37 of the NDPS Act makes bail nearly impossible for commercial quantities unless the court is satisfied the accused is not guilty. However, the bench ruled that procedural illegality of this magnitude overrides such restrictions.

“Since there is a total non-compliance with Section 42 (1) of the NDPS Act, the rigour of Section 37 cannot be attributed against the applicants and they are entitled to be released on bail. It is made clear that the observation regarding the non-compliance is for the limited purpose of considering these bail applications.”

The Court allowed the bail applications, directing the release of the applicants on executing a bond of Rs. 1,00,000 each with two solvent sureties. The applicants are required to cooperate with the investigation and appear before the investigating officer every Saturday between 10:00 AM and 11:00 AM. They are prohibited from contacting witnesses, tampering with evidence, or leaving the State of Kerala without permission from the trial court.

The ruling reaffirms that statutory safeguards in the NDPS Act are mandatory and their violation provides a valid ground for bail even in cases involving commercial quantities. By clarifying that a private vehicle does not lose its character as a private space under Section 42 merely by being on a public road, the Court has strengthened the protection against arbitrary night searches.

Date of Decision: 08 July 2026