NARCOTICS CONTROL BUREAU Vs. MARK MICHAEL RYAN

JUDGEMENT

(1.) IMPUGNED judgment of 29th March, 1997 holds that non compliance of mandatory provision of Section 42 of The Narcotic Drugs and Psychotropic Substances Act, 1985 vitiates entire trial and acquits respondent -accused in S.C. No. 176/1994 titled N.C.B. v. Mark Micheal Ryan and Ors. The facts of this case are noticed in detail in the impugned judgment which need not to be reproduced herein as the short question raised at the hearing of this appeal to challenge the acquittal of respondent -accused is whether Custom Clearance Counter at I.G.I. Airport comes within the definition of 'public place' or not. Suffice it would be to note that on the intervening night of 17th and 18th June, 1994. Respondents No. 1 and 2 had reported at the Custom Clearance Counter at I.G.I. Airport for travelling to Amsterdam and they were earmarked for surveillance. First two respondents were asked by Narcotics Control Bureau's officials to identify their baggage i.e. two suitcases. (Ex. P -22 and P -23) and in the presence of two independent witnesses, the baggage of first two respondents was searched and from the baggage of first two respondents, a blackish substance weighing 30 kgs. in all was recovered and upon clinical analysis, it was found to be Hashish. First and second respondent had disclosed that the contraband substance was provided to them by respondent No. 3 in a hotel.

(2.) DURING trial, deposition of 11 witnesses was recorded by trial court and respondents -accused in their statement under Section 313 of Cr.P.C. had denied the prosecution case and had alleged false implication.

(3.) AT the final hearing of this appeal, learned Senior Public Prosecutor for appellant did not dispute the settled legal position that the compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is mandatory in the case where the recovery of the contraband is not from a 'public place' but, according to him, in the instant case detection, recovery and seizure of the contraband is from a Custom Clearance Counter at I.G.I. Airport which is a 'public place' and so, Section 43 of the, Narcotic Drugs and Psychotropic Substances Act, 1985 would apply. Attention was also drawn to the explanation of Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to submit that I.G.I. Airport is a place which is intended for use by public and is accessible to the public and so comes within the definition of 'public place'. In support of above stand, reliance was placed upon decision in Utpal Mishra v. Nicelai Christensen : 1997 Crl.L.J. 4475. Thus, it was submitted on behalf of appellant that impugned judgment runs contrary to Division Bench decision in Utpal Mishra (supra) and so, it deserves to be set aside.