Rajasthan HC Dismisses Bail in NDPS Case, Finds Section 42 Compliance Where SHO Recorded Information Before Nighttime Search

Justice Baljinder Singh Sandhu rejected bail for a 19-year-old accused of carrying 180 grams of Mephedrone, holding that the SHO had complied with Section 42 of the NDPS Act before the nighttime search.

The High Court of Judicature for Rajasthan at Jodhpur has dismissed the bail application of Nand Kishore, a 19-year-old resident of Jodhpur lodged in Central Jail, Jodhpur, who was arrested following the recovery of 180 grams of Mephedrone (MD) from his person during a nighttime search on 14 December 2024. Justice Baljinder Singh Sandhu, sitting singly, found that the Station House Officer had reduced the informant's tip to writing, recorded grounds for proceeding without a warrant, and forwarded the communication to his immediate superior officer — all before the search party reached the premises. That sequence, the court held, amounted to prima facie compliance with Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Because the recovered quantity exceeded the notified commercial quantity, the stringent bar under Section 37 of the NDPS Act also applied, and the court found it unable to record the satisfaction that the petitioner was not guilty of the alleged offence.

FIR, Arrest, and Rejection by the Special Court

FIR No. 280/2024 was registered at Police Station Pratap Nagar, District Jodhpur, for offences punishable under Sections 8 and 21 of the NDPS Act. On receipt of secret information at about 8:30 PM on 14 December 2024, the SHO proceeded to the rented house of one Saiyad Mustak, where he found two persons — Bajrang and Nand Kishore — sitting together. Personal searches conducted at about 10:20 PM yielded 157.25 grams of MD from Bajrang and 180 grams of MD from Nand Kishore. Both accused were arrested from the spot. A charge sheet was subsequently filed.

Nand Kishore has been in judicial custody since 14 December 2024. He moved a bail application before the Special Judge, NDPS Act Cases No. 01, Jodhpur, which was rejected by order dated 27 April 2026. He then filed S.B. Criminal Miscellaneous Bail Application No. 6014/2026 before the High Court under Section 483 of the Bharatiya Nagarik Suraksha Sanhita.

The Section 42 Challenge

The petitioner's counsel, Mr. Bhagirath Ray Bishnoi, argued that because the search was conducted between sunset and sunrise, the statutory safeguards in Section 42 of the NDPS Act were squarely attracted. Section 42 empowers an authorised officer to enter, search, seize and arrest without a warrant where there is reason to believe that a narcotic drug or psychotropic substance is concealed in a building, conveyance or enclosed place. For nighttime searches, the second proviso to Section 42(1) requires the officer to record the grounds for believing that obtaining a warrant would allow the offender to escape or evidence to be concealed. Section 42(2) further requires that a copy of such information or grounds be sent to the immediate superior officer within 72 hours.

Counsel submitted that although the information was received at 8:30 PM, no warrant was obtained despite there being sufficient time to do so. He further argued that the recovery memo, prepared at 00:05 AM on 15 December 2024, disclosed no warrant. On Section 42(2), he contended that no contemporaneous document demonstrated communication to the superior officer within the prescribed window, and that the document the prosecution relied upon appeared to have been prepared after the search rather than before it. Mere recording that a warrant could not be obtained, he argued, was insufficient compliance.

Counsel also relied on the decision of a coordinate bench of this court in Arjun v. State of Rajasthan, decided on 15 July 2026 in S.B. Criminal Misc. Bail Application No. 3320/2015, where bail had been granted on a finding of total non-compliance with Section 42.

The Public Prosecutor, Mr. Hanuman Prajapati, assisted by Mr. Omprakash Choudhary, countered that the information had been duly written down at 8:30 PM itself, that grounds for emergent action without a warrant had been recorded, and that a copy was forwarded through Constable Bagda Ram and received in the superior officer's office at about 11:00 PM on 14 December 2024 — well within the 72-hour window. He added that the contraband recovered from the petitioner was above commercial quantity, making bail inappropriate.

The Court's Reasoning on Section 42

Justice Sandhu turned first to the Constitution Bench decision in Karnail Singh v. State of Haryana, (2009) 8 SCC 539, which the court quoted at length. The apex court in that case held that while total non-compliance with Section 42(1) and (2) is impermissible, delayed compliance with a satisfactory explanation is acceptable. The relevant distinction drawn in Karnail Singh was between an officer who receives information while at the police station with sufficient time to act, and one who receives information while on patrol or on the move where immediate action is necessary. In the former situation, failure to record the information in writing or to inform the superior officer is a suspicious circumstance amounting to a clear violation. In the latter, postponed compliance for a reasonable period may be acceptable.

Applying that framework to the present facts, Justice Sandhu found the following sequence on record: the SHO received the secret information at 8:30 PM while on patrol in the area; he reduced it to writing at 8:30 PM itself; he recorded the grounds for proceeding without a warrant, noting an apprehension of concealment or removal of the contraband; he forwarded the memo to his immediate superior while proceeding to the spot; and the communication was received by the superior officer at about 11:00 PM on 14 December 2024. The police party reached the house of Saiyad Mustak at about 10:00 PM, served notices under Section 50 of the NDPS Act at 10:20 PM, and conducted the personal searches thereafter. The detailed seizure memo was prepared at 00:05 AM on 15 December 2024.

On that basis, the court concluded that the information and grounds contemplated under Section 42(1) were recorded before the search and were forwarded to the immediate superior within the period prescribed under Section 42(2). The nighttime character of the search alone did not render it contrary to Section 42.

The court also addressed the argument that there was sufficient time between 8:30 PM and 10:00 PM to obtain a warrant. Justice Sandhu held that the contention did not, by itself, vitiate the search, and that the grounds recorded by the SHO — disclosing an apprehension of concealment or removal — were prima facie satisfactory at the bail stage. The court was careful to clarify that the entire evidence, including the question of full statutory compliance, would be examined meticulously by the trial court at the appropriate stage.

The reliance on Arjun v. State of Rajasthan was rejected. The court distinguished that case on the ground that the coordinate bench there found total non-compliance with Section 42, whereas in the present case the information was reduced to writing, grounds were recorded before the search, and the communication reached the superior officer at about 11:00 PM. The factual substratum was materially different.

Section 37 Bar and Commercial Quantity

Because the prosecution alleged recovery of 180 grams of Mephedrone from the petitioner — a quantity above the notified commercial quantity under the NDPS Act — the rigours of Section 37 were attracted. Section 37 imposes a twin condition for bail: the court must have reasonable grounds to believe both that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail.

Justice Sandhu found that on the material on record, he was unable to record a satisfaction that there were reasonable grounds for believing the petitioner was not guilty of the alleged offence. The statutory conditions for bail under Section 37 were therefore not satisfied, independently reinforcing the dismissal.

Outcome

The bail application was dismissed. The court clarified that all observations in the order were confined to the adjudication of the bail application and would not prejudice the trial. The petitioner, who has been in judicial custody since 14 December 2024, remains lodged in Central Jail, Jodhpur.