City Police Commissioner Qualifies As 'Immediate Superior' Under Section 42(2) Of NDPS Act: Kerala High Court
The Kerala High Court has held that the term "immediate official superior" in section 42 (2) of the NDPS Act must be interpreted contextually rather than rigidly through bureaucratic hierarchy.Justice Bechu Kurian Thomas delivered the ruling while dismissing a bail application filed by the petitioner, who had been booked under Sections 22(c) and 29(1) of the NDPS Act for alleged possession...
The Kerala High Court has held that the term "immediate official superior" in section 42 (2) of the NDPS Act must be interpreted contextually rather than rigidly through bureaucratic hierarchy.
Justice Bechu Kurian Thomas delivered the ruling while dismissing a bail application filed by the petitioner, who had been booked under Sections 22(c) and 29(1) of the NDPS Act for alleged possession of 108.938 grams of MDMA. The search and seizure was conducted by the District Anti-Narcotic Special Action Force (DANSAF), which operates under the jurisdiction of the City Police Commissioner.
The petitioner's counsel contended that the search was vitiated due to a procedural lapse, specifically the failure to inform the immediate superior officer as required under Section 42(2) of the NDPS Act. It was argued that the information was passed only to the City Police Commissioner, bypassing the Assistant Commissioner of Police, who is the team leader of District Anti-Narcotic Special Action Force (DANSAF) in the city.
Rejecting the argument, the Court observed that the City Police Commissioner is indeed the functional head of DANSAF in urban areas and thus qualifies as the "immediate official superior" in the context of the anti-narcotics squad.
The court observed that “ The term 'immediate official superior' is not to be interpreted in the eyes of bureaucratic hierarchy of officers, but must be interpreted in a manner that has relation to the context”
The court noted that the intention behind the requirement of the information to be given to the 'immediate official superior' is to prevent abuse of the powers of search, seizure and arrest.
Referring to precedents including Karnail Singh v. State of Haryana [(2009) 8 SCC 539] and Md. Nawaz Khan [(2021) 10 SCC 100], the Court reiterated that Section 42(2) must be interpreted pragmatically, allowing for "substantial compliance" rather than treating it as an inflexible procedural formality.
The Court emphasized that the legislative amendment in 2001 — changing the requirement to send information to the superior officer “forthwith” to “within 72 hours” —indicates the legislative intention. The court noted that, from a mandatory requirement, it has become a discretionary measure.
The court while dismissing the bail application, relying on Union of India v Md. Nawaz Khan [(2021) 10 SCC 100] stated that violation of the requirement of section 42 is a matter to be raised in the course of trial.
Case Title - Badusha v State of Kerala
Case No - Bail Appl. 6388/ 2025
Counsel for Petitioner - Arjun S, Chithra Mol R, Anju P V
Counsel for Respondent - Noushad K A, Public Prosecutor