TMI Blog1997 (8) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Department is in appeal before us. 3. Relying upon a decision of a learned Single Judge of this Court in Criminal Appeal No. 149/6 entitled Shri Richard Thomas Wrigley v. Customs and Another, 67 (1997) DLT 293, decided on 20th March, 1997, 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 non compliance 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 (l)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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Chapter IV has been committed and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation. For the purposes of this section, the expression public place includes any public conveyance, hotel, shop or other place intended for use by or accessible to, the public. 5. A reading of the aforesaid provisions, inter alia, shows that for seizure of any narcotic drug or psychotropic substance in any public place and for detention and search of any person whom the officer has reason to believe to have committed an offence punishable under Chapter IV and for his arrest, it is not necessary to take down the information in writing or to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Luggage hold area and Customs counter at the Airport the learned Single Judge has observed that: 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 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 questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh's case Section 57 has been held not to be mandatory. In this view the observations in Mohinder Kumar's case that Section 57 is mandatory are per incuriam. For the same reason it has to be held that Lawnson, case holding Section 57 to be mandatory does not lay down the correct law. Following Balbir Singh's case we hold Section 57 of the Act not to be mandatory. 14. Even though directory, on facts in the present case, the provisions of Section 57 of the Act have been complied with. Learned Counsel for the respondent did not urge that any prejudice has been caused to his clients. Be that as it may, we find that in this case Section 57 was duly complied with and Utpal Mishra, as required by Section 57 made a report to an officer immediately superior to him. That report is Ex. PW 1/X. 15. Next, it was contended that Utpal Mishra, Air Customs Officer, who conducted the search and seizure, investigated the case and filed the complaint was not duly authorised to do so since there was nothing on the record to show that he was holding the rank of Inspector or above in the Department of Customs. On the strength of Notification reproduced below, it was contended that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is credible evidence on record to prove how the samples and also the case property was dealt with as stated by PW 1 Utpal Mishra. The contention that it was a general seal and not that of the officer as postulated by Section 55 is also without any basis. The seal used in the case was that of the Preventive Department. 18. It was next contended that CFSL report Ex. PW-1/H cannot be read in evidence as the chemical conclusions and details of the chemical analysis have not been stated in that report. In support of the contention reliance has been placed by learned Counsel for the respondent on the decision of the Gujarat High Court in the case of Saiyad Mohd. Saiyad Umar Saiyed Ors.v. State of Gujarat,II (1995) Current Criminal Reports 146 for the proposition that if the analysis report does not disclose the scientific test or experiments performed by the Public Analyst such a report cannot be relied upon. The relied upon decision has no applicability to the facts and circumstances of the present case inasmuch as in the case in hand the report sets out the details of analysis and requisite percentage for coming to the conclusion that the seized article was hashish. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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