IMPORTANT POINT
Provisions of Section 42 of N.D.P.S. Act which is mandatory are not applicable at International Airport which is a "public place" to which Section 43 would apply.

JUDGMENT

Y.K. Sabharwal, J- The respondent, a Danish national, was intercepted at Airport by the Customs Officer while he was leaving for Copenhegan on 22nd May. 1996. The search of his luggage resulted in recovery of 975 grams of hashish. A complaint was filed by Customs Department through its Air Customs Officer Mr. Utpal Mishra praying that the accused to be tried and punished in accordance with law. The accused was charged for offences under Sections 21 and 23 of Narcotic Drugs & Psychotropic Substances Act, 1985 (for short the Act) for being in illegal and unlawful possession of 975 grams of hashish which he attempted to unsuccessfully export out of the country.

2. By the impugned judgment the trial Court acquitted the respondent accused mainly on the ground of non compliance of Section 42 of the Act holding that the non-compliance of the said provision vitiates the prosecution. All other contentions urged on behalf of the accused were rejected by the trial Court. The Customs Department is in appeal before us.

3. Relying upon a decision of a learned Single Judge of this court in Shri Richard Thomas Wrigley v. Customs and another1, trial Court has held that the customs counter at the International Airport cannot be termed as a "public place" and the said area would be covered by the provisions of Section 42 and not Section 43 of the Act. In this view the trial Court has concluded that Section 42 of the Act has not been complied with. On holding that cuStoms clearance counter is not a public place, the trial Court concluded that compliance of the requirements of Section 42 of the Act was mandatory and noncompliance thereof has to result in the acquittal of the accused.

4. For facility of reference Sections 42 and 43 are reproduced as under:

"42. Power of entry, search, seizure and arrest without warrant or authorization - (1) Any such Officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government, or of the Border Security Force as is empowered in this behalf of general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset.

(a) enter into and search any such building, conveyance or place:

(b) in case of resistance, break open any door and remove any obstacle to such entry:

(c) seize such drug or substance and all materials used in the man ufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable, to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance: and

(d) detain and search, and if, he thinks proper, arrest a person whom as reason to believe to have committed an offence punishable under Chapter IV relating to such drug or substance:

(e) Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Whe