IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1535   OF 2008

JAMIRUDDIN AHMED ... APPELLANT(S)

:VERSUS:

STATE OF WEST BENGAL ... RESPONDENT(S)

O R D E R

The only contention raised in this appeal is that although admittedly a raid

was conducted in the house of the appellant in a remote village at midnight, no reason

as is required in terms of the proviso appended to Section 42(1) of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (“NDPS Act) had been recorded.  

Respondent – State of West Bengal has filed a counter affidavit, stating :   

“(i)  That  there  is  no  challenge  by  the  Petitioner  regarding compliance of section 50 of the N.D.P.S. Act;

(ii) That the only point that has been argued is that non-compliance of the provision of Section 42 of the N.D.P.S. Act;

(iii) That in a peculiar situation the search was conducted where the higher officials did not feel it proper to obtain a prior authorisation, lest the entire purpose of the search and seizure would be rendered futile in such a situation;

-2-

(iv) That the raiding party was accompanied by Senior Officials in the rank of Addl. S.P. and we think that there was due compliance of Section 42 of the N.D.P.S. Act.”

Before  us,  all  the  relevant  documents  have  been  produced  by  the  State.

However, we do not find anything in the record to show that the reasons had been

recorded by the raiding party in terms of the proviso to Section 42(1) of the NDPS

Act.  

The  provisions  of  the  NDPS  Act  provide  for  stringent  punishment.  The

safeguards  contained  therein  are,  therefore,  required  to  be  scrupulously  complied

with. The statute, if for such compliance is directory in nature, states so in clear terms.

The  raiding  party  had  sufficient  time  to  record  reasons.  Why  the  requirement

contained  in  the  proviso  appended  to  Section  42  of  the  NDPS  Act  could  not  be

complied with, has not been explained. The search of a place without recording such

reasons may violate somebody's right to privacy.

When  a  power  of  entry,  search,  seizure  and  arrest  without  warrant  or

authorisation is conferred upon the authority specified in the statute, the conditions

precedent laid down therefor require compliance.  

-3-

An  empowered  officer  in  terms  of  the  proviso  is  required  to  record  the

grounds  of  his  belief  that  a  search  warrant  or  authorisation  cannot  be  obtained

without affording opportunity for concealment of evidence or facility for the escape of

an offender. As he had sufficient time at his disposal, there was no reason as to why

the same had not been complied with.

We are,  therefore, of  the opinion that the search being wholly illegal,  the

impugned judgment cannot be sustained. It  is  set aside accordingly. The appeal is

allowed. The appellant, who is in jail, is directed to be set at liberty forthwith unless

required in connection with any other case.  

...........................J (S.B. SINHA)

...........................J   (Dr. MUKUNDAKAM SHARMA)    NEW DELHI, MARCH 26, 2009.