( 1 ) THIS is an appeal against the order of conviction under Narcotic Drugs and Psychotropic Substances Act against the appellant for being found in possession of 1800 gms. of Charas which was kept in his baggage while leaving India. Alongwith the appellant a lady passenger who was also going to leave by the same flight as the appellant, for being found in possession of 420 gms. Charas in her baggage. The said co-accused Ms. Sharon Loney was acquitted by giving her benefit of doubt while the appellant was sentenced to undergo rigorous imprisonment for a period of 10 years plus fine of Rs. 1 lac and in default of such payment to undergo further R. I. of 1 year.

( 2 ) I have, heard the parties, (counsel for the appellant has raised only three technical pleas - (i) that by not complying with the mandatory requirements of Section 42 of NDPS Act the prosecution failed to prove that the information was reduced into writing; (ii) that Section 50 of the said Act has also not been complied with; and (iii) that there is non-compliance of Section 57 of the said Act.

( 3 ) TAKING the second plea first, I find that the law laid down in the case of "belbir Singh" reported as 1994 JCC 303, stands duly clarified and explained in the judgment in the case of "nandi Francis Nuazor v. Union of India and Another" passed in Special Leave Petition (Crl.) No. 3688 of 1995 on 27th February, 1997, copy whereof was produced by Mr. Sethi in the Court, wherein the Hon ble Supreme Court has clarified that where luggage is no longer under the control of the passenger and if the incriminating substance is recovered from the search of such luggage, the provisions of Section 50 (i) will not be attracted because that will not be a part of the personal search of the passenger nor would that be search of the accompanying baggage such as the handbag or any other item which the passenger is still in complete control of and not the bagge over which the passenger has lost control by parting With it for being loaded into the aircraft. In the light of the observations of the Hon ble Supreme Court and the law laid down therein, there is no force in the second ground urged by Mr. Manan and the same is, therefore, rejected.

( 4 ) ON the first ground, the case has been argued with considerable force that in the present case Section 43 is attracted because the seizure had taken place at a public place and Section 43 was duly invoked in the Panchnama also. The basic difference between Section 42 and Section 43 is that while the provisions of Section 42 of the Act would be attracted if it involves search of vehicles, places, premises. Section 43 applies to search and seizure at a public place. In the present case, the question would be whether Luggage Hold Area of the Customs Authorities could be described as a public place. The Luggage Hold Area is an area set apart in the departure hall after the Airlines Check-in counter and the immigration counter. When the passengers check-in their luggage to be loaded into the luggage hold of the aircraft and collect their boarding cards and they thereafter pass through the Immigration Check Counter and reach the Customs counter. There they are checked up by the Customs Authorities and the Luggage Hold Area is behind the Customs Counter which area is not open to public and the entry is restricted. In that sense that area cannot be described as a public place because the entry thereto is restricted. The luggage after check-in is brought to this area before being loaded into the aircraft, in this case luggage was kept in the Luggage Hold Area and it was brought for search and the luggage was duly opened and searched wherefrom the incriminating material was recovered. The question arises if the baggage was searched in the Customs Area by taking baggage out from the Luggage Hold Area. Even the Customs Counters which are beyond the Immigration Check Counter where again members of general public cannot entere without due permissio