The Twilight Trap: Location-Based Timing and Sunset Benchmark Required under Section 42, NDPS Act, 1985

Between sunrise and sunset, an empowered officer may enter, search, and seize based on “reason to believe” from personal knowledge or information received from the informer or other departments who do operations such as the Enforcement Directorate and the Income Tax Department.

The two-tiered mandate of Section 42, NDPS Act, 1985

The mandate of Section Section 42, Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act, 1985), establishes two distinct operational phases: 1) between sunrise and sunset, and 2) between sunset and sunrise. The NDPS Act does not debar an empowered officer of an empowered department to conduct search and seizure operations at any point of time. However, having said that, in respect of search and seizure operations post-sunset, additional requirements, in the shape of compliances, must be invariably met before the operation can commence. The additional compliances have a direct influence and impact on the case booked. While it is mandatory for the empowered officer to reduce the information into writing and submit it to the officer superior in rank in the normal course of operation between sunrise and sunset, an operation post-sunset requires the additional compliance of recording the grounds of his belief.

An empowered officer may enter and search any building during the day without a search authorisation. The only condition is that he must reduce the information into writing and submit it to his officer superior in rank and in terms of Section 42(2), NDPS Act, he shall, within 72 hours, send a copy thereof to his immediate official superior in rank. Even in the case of a search post-sunset, apart from the information, he has to transmit the grounds of belief to his official superior within the same time.

While the NDPS Act permits the empowered officer to act all alone, does it mean that he can carry out the operations independently without any support from other colleagues and official superiors?

The one-man Army

While the NDPS Act empowers the individual officer, this power does not translate into a “one-man Army” search and seizure operation. A successful case requires a cohesive team constituted by the official superior, where each member is bound together for a singular purpose. The legal “Oxygen” of a case — the official seal — remains in the custody of the superior. Planning, coordination, organising logistics, deployment of manpower based on quantum and the place of operation, and departmental support are only available to an empowered officer when the empowered officer takes the superior into confidence. Without this structural cohesion, the “reason to believe” lacks the institutional backing required to survive.

Additional requirement

Between sunrise and sunset, an empowered officer may enter, search, and seize based on “reason to believe” from personal knowledge or information received from the informer or other departments who do operations such as the Enforcement Directorate and the Income Tax Department. However, the law does not debar operations post-sunset. It merely introduces a critical “additional requirement”: The officer must record the “grounds of his belief” that a search authorisation or a search warrant cannot be obtained without risking the escape of the offender or concealment of evidence. This recording is a mandatory prerequisite for a valid nocturnal search.

The lethal consequences of non-compliance

Failure to meet these “additional requirements” creates a procedural vacuum that cannot be filled by the gravity of the offence by making a submission before the learned court that the commercial quantity has been seized. Non-compliance with the second proviso of Section 42(1) renders the entry and search unauthorised. As the law mandates that a thing must be done in a “certain way”, the recovery of contraband — no matter how large — becomes “legally tainted”. This violation of the mandatory legal boundaries directly leads to the vitiation of the search and seizure proceedings and consequently the arrest.

Darkness is a perception; Sunset is a fact

Sunset and sunrise have been explained as under:

“The times when the upper edge of the disk of the Sun is on the horizon, considered unobstructed relative to the location of interest. Atmospheric conditions are assumed to be average and the location is in a level region on the Earth’s surface ¹.”

Common operational fallacy

A common operational fallacy is equating “darkness” with “sunset”. Physical phenomena such as dust storms, pollution, heavy rain, or solar eclipses may cause significant daylight reduction, but they do not constitute an “astronomical sunset”. The second proviso of Section 42(1) is triggered solely by the Sun’s position relative to the horizon, not by climatic patterns or visibility. An officer who mistakes a dark afternoon for sunset, or vice versa, risks applying the wrong procedural standard.

Darkness cannot be equated with sunset. It may arise from various causes such as eclipses, weather changes, or fog. Such darkness, by no stretch of reasoning, can be considered the same as “sunset”. To buttress the contention, we refer to the decision of the Madurai Bench² of the High Court of Madras wherein it was held that “Further, the word ‘growing darkness’ used by the witnesses cannot be equated with sunset and even during the daytime, there may be some darkness due to weather condition.”

Planning in the twilight zone

Operations conducted in the “twilight zone” (the hour preceding and following the estimated sunset) must be meticulously planned. It must be ensured that there is proper compliance in respect of the proposed search and seizure operation. To ensure that there is no misadventure on this front, it is essential that the Positional Astronomy Centre (PAC), Kolkata falls under the administrative control of the Director General of Meteorology, New Delhi and their website can be visited at PAC ³ to know the sunrise and sunset of a given city. It should be borne in mind that we have one standard time and irrespective of the fact that the cities in Eastern and North-Eastern Region would have early sunrise and early sunset, the data, as available in the website above, can only be pressed into service.

Study of comparative data

To compare the sunrise and sunset timings of major metros vis-à-vis the city of North Eastern Region, we find from the data uploaded as under:

Table

A cursory glance of the data captured itself reveals that the sunset differs from city to city. For the sake of illustration, we take Delhi and Gurugram. While Gurugram shares its borders with Delhi, the sunrise and sunset timings vary by a minute each and this one minute must be properly accounted for, failing which it will cost the prosecution.

While the sunset timings are extremely crucial, the sunrise timings are also an important governing factor in an operation. Should an operation in Delhi be conducted, say at 06:12 hours on 30 March 2026, the requirement of recording “grounds of belief” must be submitted and the same cannot be dispensed with.

Ignorance cannot be set up as a defence

Since the PAC, Kolkata (falling under the Indian Meteorological Department, Government of India, New Delhi) publishes authoritative data and which is available, as of now, up to 31 December 2026, for all major cities, ignorance is no longer a defence. The empowered officer must verify the exact sunset time for their specific longitude and latitude before commencing a search. If there is even a minute of overlap with the post-sunset period, the officer should pre-emptively record the “grounds of belief” to secure the case against geospatial challenges.

Case law: The 12-minute lesson of Mohan Babu Gupta

The unique case of Mohan Babu Gupta v. State (NCT of Delhi)⁴ illustrates this perfectly. A search operation conducted at 5.40 p.m. was vitiated because the official PAC, Kolkata data recorded the sunset as at 5.28 p.m. Despite the recovery of 360 gm of heroin (commercial quantity) and the existence of voice-matched intercepted conversations, the court granted regular bail because the investigating officer failed to record his “grounds of belief” for the 12-minute post-sunset search.

Conclusion: From bail to acquittal

The grant of bail on these “highly legal grounds” is often a precursor to acquittal. Once the trial court recognises that the mandatory provisions of Section 42 were breached, the entire search and seizure are treated as illegal. This creates a “zero-error” mandate for the prosecution; while the defence only needs to prove a 12-minute discrepancy, the officer must prove total temporal integrity to sustain a conviction.