Introduction One of the most technical grounds for acquittal in NDPS trials is the confusion between Section 42 and Section 43. Prosecution cases often fail because the officer followed the wrong procedure for the wrong location.
The Distinction
- Section 42: Applies to search of a “Building, Conveyance, or Enclosed Place” between sunset and sunrise. It requires the officer to record the “grounds of belief” in writing and send a copy to their superior before the search (unless there is an imminent chance of escape).
- Section 43: Applies to search in a “Public Place” or “Transit.” No prior recording of reasons is strictly mandated in the same rigorous manner as Section 42.
The “Public Place” Trap Is a private car parked on a public road a “Public Place” or a “Conveyance”? In Boota Singh v. State of Haryana (2021), the Supreme Court held that a private vehicle on a public road is a “Public Place” under Explanation to Section 43. Therefore, the strict requirements of Section 42 (recording reasons before search) might not apply.
Why It Matters However, if the search happens in a house or a parked vehicle in a private compound, Section 42 is mandatory. Failure to record the “Secret Information” in writing and send it to the superior officer within 72 hours (Section 42(2)) is a fatal flaw that can lead to acquittal.
Disclaimer: This article is for academic and informational purposes only and does not constitute legal advice. For specific case inquiries, please consult a legal professional.