J.K. Mehra, J.
(1) This is an appeal against the order of the Additional Sessions Judge convicting the appellant under Sections 132 and 135(a) of Customs Act, 1962 Sections 20, 23 r/w Sections 28 of Ndps Act, 1985 whereby the appellant was sentenced to undergo rigorous imprisonment for 6 months with regard to violations of Sections 135 of Customs Act and 10 years rigorous imprisonment and a fine of Rs. 1 lakh or in default thereof a further R.I. of six months for offence U/S 20(ii) Ndps Act to undergo a similar sentence for the offence U/Section 23 r/w Section 28 of Ndps Act. The facts in brief leading to the impugned judgment are as under:
(2) The appellant on the night between 4/5 June, 1993 was to leave Delhi for Bangkok by Thai International Flight No. TG-316 and was apprehended at the Delhi Airport. At that time, the appellant was carrying one small bag which was tied with the wheel of the trolley in her hand apart from two other bags which had been checked in. On being asked by the officers as to whether she was carrying any narcotics substance, she replied in the negative. On the customs officers' suspicion being arisen on account of look of the trolley wheels which looked heavy, he proceeded to take search thereof and also sent for the checked in baggage for search. The appellant has challenged the order of conviction and the sentence on various grounds. It will not be necessary to advert to all those in view of the discussion appearing hereinafter.
(3) The search could be split into two parts, one relating to the checked in baggage and the other of the person and the trolley and bag which was carried by the appellant. In view of the recent judgment of the Hon'ble Supreme Court rendered in Special Leave Petition(Criminal) No. 3688/95 entitled N.F. Nawazar v. Union of India the search of the checked in baggage would not attract the provisions of Section 50 of Ndps Act. However, that judgment in terms says that if a person is carrying a hand bag or like and the incriminating article is found there from it would still be a search of the person and their lordships had clarified as under:-
'We must hasten to clarify that if that person is carrying a hand bag or like and the incriminating article is found there from, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act.'
(4) Their lordships did not go into the question of the decisions of the Supreme Court where the articles which were found from the almirah or other places within the room where the person to be searched was found and yet it was held that the provisions of Section 50 would be attracted. I need not dwell on this aspect further because the present case is similar to one which was before the Hon'ble Supreme Court to the extent of checked in baggage. thereforee, I have no hesitation in holding that provisions of Section 50 of Ndps Act have no application in the case of search of the checked in baggage containing incriminating articles. However, that would not the position with regard to trolley which was being carried by the appellant herself. The search with regard to the said trolley and the hand bag on the appellant herself did require strict compliance with the provisions of Section 50 of Customs Act as also Section 102 of the Customs Act which are almost identical. Another disturbing feature which has been brought to my notice in the present case is the total disregard of the provisions of Section 50. The appellant is a female and she could not have been searched by anyone excepting a female. The provision of Sub-Section (4) of Section 50 of Ndps Act reads as under:-
'No female shall be searched by anyone excepting a female.'
(5) Neither the witnesses to the Panchnama nor the officers who conducted the search had any female member in the present case. The assertion of the counsel for the appellant that she was not searched by female was not refuted. The only argument raised by Mr. Sawhney is that since no personal body search was carried out in this case, there was no need for involving a female. Mr. Sawhney further states that personal search did not take place since the incriminating material was found in the trolley being carried by the appellant. This assertion is disputed by counsel for appellant who maintains that personal search was carried out. He further asserts that if personal search had not taken place, where was the need to record at the end of Panchnama the following statement.
'The above proceedings were conducted in a peaceful manner and no damage was done to any property or person of the searched accused.'
(6) However, without going into any argument on this point, I would consider it appropriate to direct the authorities that in future they must ensure that whenever a female has to be searched, that search is carried out by a female only and such female should be associated with the search from the beginning. Sub-Section (4) in Section 50 of Ndps Act and also Section 102 of the Customs Act are not empty words or idle provisions to be read and forgotten. It is a very important safeguard which has to be adhered to by the authorities concerned and I may clarify that Section 50 has been held by the Hon'ble Supreme Court to be mandatory as a whole which includes Sub-Section (4) also. Section 102 of Customs Act is para materia with Section 50 of Ndps Act and is likewise mandatory and could not be ignored by the authorities. It is not in dispute that Section 50 even with regard to grant of option to be searched was not complied with in the present case as no option whatsoever, as contemplated Under Section 50, was given to the appellant and for that reason the prosecution to the extent it relates to the recovery of incriminating material from the trolley wheels is clearly hit by the non-compliance of Section 50 and stands vitiated.
(7) Another plea raised by counsel for appellant is that there was violation of the mandatory provisions of Sections 42 and 57 of the N.D.P.S. Act. From a perusal of the record, it appears that the checked in baggage was on the conveyor belt beyond the customs area, where the passenger reaches after crossing the barrier of immigration check. The appellant was asked to retrieve her baggage from the conveyor belt in the customs area. The question whether the checked in baggage which was brought from a place with the conveyor belt beyond the immigration check post in customs area could be described as public place has to be examined because the appellant has raised the pleas that there is non-compliance with the provisions of Section 42 of Ndps Act which reads as under:-
'Power of entry, search, seizure and arrest without warrant or authorisation- (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 by 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,-
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(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 manufacture 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 any person whom he has reason to believe to have committed any offence punishable under Chapter Iv relating to such drug or substance.
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 the 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. @SUBPARA = (2) Where an officer takes down any information in writing under Sub-Section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.'
The question as to whether such a situation will be covered by Section 43 or Section 42 of the said Act came before me in an earlier case of Richman Thomas Rigley vs. Customs & Another Crl.A. 149(1996) decided in March 20, 1997 wherein I had an occasion to consider the two Sections, Section 43 of Ndps Act and Explanationn thereof reads as under: @SUBPARA = 'Power of seizure and arrest in public places- Any officer of any of the departments mentioned in Section 42 may -
(A)seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable 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 office 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.
ExplanationN-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.'
The Explanationn makes it absolutely clear that to be a public place area has to be intended to be used by, or accessible to, the public. The areas in question i.e. the customs area at the International Airport is not a area which is intended for use by or accessible to the public because everyone cannot have access to that area. The definition so given in the said Explanationn is not exhaustive but only illustrative. In the Words & Phrases Volume 35 Permanent Edition, the term public place in general is discribed as 'a public place is a place where the public has a right to go and be. It is also described in the following terms in a case' every place is a public place which is made public by the assemblance of the people whether by allurements giving or otherwise.' I need not go into further details of this particularly in view of the Explanationn of Section 43 of the Act and in the light of what is discussed in the aforesaid judgment in the case of Richman Thomas Righley(supra) I hold that the Customs area cannot be covered under the Explanationn as defined in Section 43 of Ndps Act. thereforee compliance of Section 43 of the said Act is also necessary which has not been done in the present case and on this ground as well the prosecution fails.
There is also no challenge to the next ground that mandatory provisions of Section 57 of Ndps Act also have not been complied with in as much as there is no evidence forthcoming on record of compliance with the provisions of Sections 42 and 57 of Ndps Act. Section 57 which I had earlier considered to be directory in nature is not so. The position stands fully settled now with the pronouncement of the judgments of the Hon'ble Supreme Court in the cases of State of Punjab v. Balbir Singh(SC) reported as 1994 Jcc 303, Mahinder Kumar v. State, Panaji, Goa reported as 1995 Crl.L.J. 2074 and another case decided by Delhi High Court namely Mohd. Shahid vs. Union of India and Others reported as 1994 Jcc 569. There is no material on record to show that the officers concerned had complied with Section 42 of the said Act or had within 48 hours next after arrest of seizure filed report of all the particulars of such arrest or seizure of his official superior and for that reason also the prosecution under the provisions of Ndps Act fails. There is also not any evidence of compliance with the provisions of Section 57.
The result of the above discussion is that the conviction and sentence under Section 20(ii) and 23 read with Section 28 of Ndps Act, 1985 is set aside.
Coming to the conviction and sentence under Sections 132 and 135(a) of Customs Act all that Mr. Dawar stresses is that non-compliance of the provisions of Section 102 of Customs Act vitiates search and seizure with regard to the incriminating materials seized from the wheels of the trolley and not the checked in baggage. However, I find that the appellant has already served out full terms of sentence imposed under Customs Act after allowing her benefit of Section 428 of Cr.P.C. I need not deal any further with this aspect of the case.
ASa result of the above discussions, the appeal is accepted to the extent of conviction and sentence under Section 20(ii) of Ndps Act and also under Section 23 read with Section 28 of Ndps Act and the impugned judgment is set aside to that extent while the appellant has already served out the sentence under Sections 132 and 135(a), I need not state any further as initially no arguments have been addressed in this regard. The appeal to that extent fails. The appellant who after taking into account the set off provided under Section 428 of Cr.P.C. has already served her sentence under Customs Act should be set free if not required in any other case.