1. Bail application under Section 483 BNSS against rejection of bail for NDPS Act offences involving recovery of Mephedrone. (Para 1 , 2 )
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2026 Supreme(Raj) 801
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
BALJINDER SINGH SANDHU, J.
Nand Kishore, S/o. Omparkash – Petitioner
Versus
State Of Rajasthan, Through Pp – Respondent
S.B. Criminal Miscellaneous Bail Application No. 6014 of 2026
Decided On : 25-08-2026
Important Points
Compliance with Section 42 of the NDPS Act is mandatory, though reasonable delays in recording/reporting are permissible in emergencies. For commercial quantities, Section 37 rigours apply, requiring reasonable grounds to believe the accused is not guilty for bail to be granted.
Subject
Criminal Law - NDPS Act
Act Referred
Headnote
(A) NDPS Act, 1985 - Section 42 - Recording of information and communication to superior officer - Search and seizure - Compliance with statutory safeguards - While compliance with Section 42(1) and 42(2) is mandatory, in emergent situations and special circumstances where immediate action is required to prevent the escape of offenders or destruction of evidence, the recording of information and informing the official superior may be postponed for a reasonable period. Total non-compliance is impermissible, but delayed compliance with a satisfactory explanation is acceptable. Whether there is adequate or substantial compliance is a question of fact to be decided in each case. (Paras 9, 10, 11)
(B) NDPS Act, 1985 - Section 37 - Grant of bail - Commercial quantity - Where the contraband recovered is above the notified commercial quantity, the rigours of Section 37 are attracted. Bail can be granted only if the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. (Para 17)
Facts of the case:
An applicant was arrested after the recovery of 180 grams of Mephedrone from his person during a search of a residential premise conducted at 10:00 PM. Secret information regarding the presence of contraband was received by the officer at 8:30 PM. The applicant sought bail, contending that the search was conducted without a warrant despite available time and that the prosecution failed to demonstrate contemporaneous compliance with the requirements of reporting the information to a superior officer under Section 42 of the Act.
Findings of Court:
The court found that the officer reduced the secret information to writing at 8:30 PM and recorded the grounds for proceeding without a warrant due to apprehension of concealment or removal of the contraband. The information was forwarded and received by the superior officer at 11:00 PM on the same day. Thus, the requirements of Section 42(1) and 42(2) were prima facie satisfied.
Issues: Whether the search and seizure operation complied with the mandatory requirements of Section 42 of the NDPS Act and whether the applicant is entitled to bail under Section 37 given the commercial quantity of the recovered substance.
Ratio Decidendi: The court ruled that since the information and grounds for not obtaining a warrant were recorded before the search and forwarded to the superior officer within the prescribed period, the action did not violate Section 42. Furthermore, as the recovered quantity exceeded the commercial limit, the strict conditions of Section 37 apply. Since a prima facie case was established and there were no reasonable grounds to believe the applicant was not guilty, the statutory conditions for bail were not met.
Result: Bail application dismissed.
(B) NDPS Act, 1985 - Section 37 - Grant of bail - Commercial quantity - Where the contraband recovered is above the notified commercial quantity, the rigours of Section 37 are attracted. Bail can be granted only if the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. (Para 17)
Facts of the case:
An applicant was arrested after the recovery of 180 grams of Mephedrone from his person during a search of a residential premise conducted at 10:00 PM. Secret information regarding the presence of contraband was received by the officer at 8:30 PM. The applicant sought bail, contending that the search was conducted without a warrant despite available time and that the prosecution failed to demonstrate contemporaneous compliance with the requirements of reporting the information to a superior officer under Section 42 of the Act.
Findings of Court:
The court found that the officer reduced the secret information to writing at 8:30 PM and recorded the grounds for proceeding without a warrant due to apprehension of concealment or removal of the contraband. The information was forwarded and received by the superior officer at 11:00 PM on the same day. Thus, the requirements of Section 42(1) and 42(2) were prima facie satisfied.
Issues: Whether the search and seizure operation complied with the mandatory requirements of Section 42 of the NDPS Act and whether the applicant is entitled to bail under Section 37 given the commercial quantity of the recovered substance.
Ratio Decidendi: The court ruled that since the information and grounds for not obtaining a warrant were recorded before the search and forwarded to the superior officer within the prescribed period, the action did not violate Section 42. Furthermore, as the recovered quantity exceeded the commercial limit, the strict conditions of Section 37 apply. Since a prima facie case was established and there were no reasonable grounds to believe the applicant was not guilty, the statutory conditions for bail were not met.
Result: Bail application dismissed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Advocates Appeared:
For the Petitioner: Mr. Bhagirath Ray Bishnoi, Mr. Manohar Singh Hada
For the Respondent: Mr. Hanuman Prajapati, PP assisted by Mr. Omprakash Choudhary
For the Petitioner: Mr. Bhagirath Ray Bishnoi, Mr. Manohar Singh Hada
For the Respondent: Mr. Hanuman Prajapati, PP assisted by Mr. Omprakash Choudhary
Table of Contents
2. Petitioner argued non-compliance with Section 42 NDPS Act; prosecution argued due compliance with statutory safeguards. (Para 3 , 4 , 5 , 6 , 7 )
3. Court prima facie found due compliance with Section 42 requirements, distinguishing the case from precedent cited. (Para 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 )
4. Compliance with Section 42(1) and (2) NDPS Act is mandatory; delayed compliance with explanation is acceptable. (Para 10 , 11 )
5. Bail application dismissed as statutory conditions under Section 37 NDPS Act for grant of bail not satisfied. (Para 17 , 18 )
6. Is compliance with Section 42 of the NDPS Act mandatory for searches conducted during night hours?
Yes, compliance is mandatory. Total non-compliance is impermissible, but delayed compliance with a satisfactory explanation in emergent situations is acceptable. (Para 10 , 11 )
7. What constitutes valid compliance with Section 42(2) regarding communication to a superior officer?
The information and grounds must be recorded and forwarded to the immediate superior officer within 72 hours; contemporaneous documentary evidence is required. (Para 9 , 12 , 13 )
8. Can the rigours of Section 37 of the NDPS Act be bypassed if there is non-compliance with Section 42?
No, the court must still assess satisfaction under Section 37. Non-compliance with Section 42 does not automatically satisfy the conditions for bail under Section 37. (Para 17 )
Order :
BALJINDER SINGH SANDHU, J.
1. The applicant has filed the present bail application under Section 483 of BNSS, being aggrieved against the order dated 27.04.2026 passed by the learned Special Judge, NDPS Act Cases No.01, Jodhpur, District Jodhpur, in Criminal Misc. Application No. 299/2026, whereby the bail application filed by the accused- applicant was rejected. The accused-applicant is behind the bars pursuant to F.I.R. No.280/2024 registered at Police Station Pratap Nagar, District Jodhpur, for offences punishable under Sections 8/21 of the NDPS Act, 1985.
2. The brief facts of the present case are that, upon receipt of secret information, the SHO reached the house of Saiyad Mustak at about 10:00 PM and found two persons, namely Bajrang and Nand Kishore, sitting there. Upon their personal search 157.25 gm of Mephedrone (MD) was recovered from Bajrang and 180 gm. of Mephedrone (MD) was recovered from petitioner Nand Kishore. Both the accused were arrested. After investigation the charge sheet has been filed The petitioner filed the bail application before the learned special court, however the same was rejected vide order dated 27.04.2026. hence the preset bail application has been filed.
3. Learned counsel, while arguing the matter submits that it is an admitted position that the search was conducted between sunset and sunrise, at about 10:00 PM, and therefore, the statutory safeguards contemplated under Section 42 of the NDPS Act were squarely attracted. He further submits that although the information was received at about 08:30 p.m., no warrant was obtained despite sufficient time being available. Learned counsel further submits that the recovery memo was prepared at about 00:05 a.m. on 15.12.2024, and the same does not disclose that any warrant had been obtained for conducting the search of the premises under section 42(1).
4. Learned counsel further argues that although the prosecution claims that the information was communicated to the higher officials within the period of 72 hours as contemplated under Section 42(2) of the NDPS Act, there is no document on record demonstrating that such information was in fact communicated to the superior officer within the prescribed period. The document alleged to be prepared is after though and prepared subsequently, and not prior to the search. In the absence of any contemporaneous document evidencing such communication, the alleged compliance with Section 42(2) remains unsubstantiated. Further, mere recording that warrant could not be obtained by itself, cannot amount to complete compliance with the statutory requirements.
5. It is submitted that once the prosecution seeks to rely upon the exception contained in the proviso, it was incumbent upon the prosecution to demonstrate strict compliance with the safeguards accompanying such exercise of power. Learned counsel, therefore, submits that failure to establish compliance with the mandatory statutory safeguard goes to the root of the prosecution case, and vitiates the proceedings arising out of the alleged search and recovery. Hence, it is submitted that the petitioner cannot be kept behinds the bars and he deserves to be enlarged on bail.
6. Learned counsel for the petitioner has also relied upon the order passed by the Coordinate Bench of this Court in Arjun v. State of Rajasthan , passed in S.B. Criminal Misc. Bail Appl. No. 3320/2015, decided on 15.07.2026, and submitted that, in similar circumstances, this Court had enlarged the accused on bail upon finding non-compliance with the provisions of Section 42 of the Act.
7. Per contra, learned Public Prosecutor submits that the information under Section 42 of the Act of 1985 was duly written down, and after recording the reasons for emergent action, the copy of the same was forwarded through Constable Bagda Ram, thereby complying with the requirement of Section 42(1) & (2), and the same was received in the office of the superior officer at about 11:00 PM on 14.12.2024. He there
