NDPS ACT | IN-CHARGE SHO CAN CONDUCT SEARCH IN SHO’S ABSENCE: SUPREME COURT:

The Supreme Court of India has ruled that a search under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, can be lawfully carried out by an In-Charge Station House Officer (SHO) in the absence of the regular, officially designated SHO of a police station. This significant ruling was delivered by a bench comprising Justice Pankaj Mithal and Justice SVN Bhatti while adjudicating an appeal challenging an order of the Rajasthan High Court.

The case arose from an FIR registered under Sections 8/18, 25, and 29 of the NDPS Act. The Rajasthan High Court had quashed the FIR on the grounds that the search operation was conducted by an officer who was not authorised under Section 42 of the Act. The High Court had reasoned that since the officer conducting the search was not the one formally appointed as the SHO, the search was unlawful and any subsequent proceedings arising from it were liable to be invalidated.

As per a government notification issued under Section 42 of the NDPS Act, the State Government had authorised all Inspectors and Sub-Inspectors of Police posted as Station House Officers to exercise powers under the said provision. Section 42 of the Act empowers designated officers to enter, search, seize, and arrest without a warrant or prior authorization, subject to compliance with the procedural safeguards laid out in the statute.

In the present case, on the date of the search—September 9, 2011—the designated SHO, Veera Ram Choudhary, was not available. In his absence, he had officially handed over the charge of the police station to Circle Inspector Kamal Chand, a Sub-Inspector, who then carried out the search operation. The High Court, however, took a narrow view, holding that only the officially posted SHO had the authority under Section 42, and not an officer holding temporary or acting charge.

The Supreme Court disagreed with this interpretation and cited its earlier decision in State of Rajasthan vs. Bheru Lal, where it had upheld the authority of an officer holding temporary charge as SHO to carry out searches under the NDPS Act. The Court held that an officer who is in lawful temporary charge of a police station, even if not permanently posted as the SHO, is fully competent to exercise the powers under Section 42.

The apex court concluded that the High Court had committed a manifest error in law by misinterpreting Section 42 and failing to recognise the legitimacy of the search conducted by the In-Charge SHO. Accordingly, the Supreme Court set aside the High Court’s order and directed that the criminal trial should proceed in accordance with law.