JUDGMENT - T.K. CHANDRASHEKHARA DAS, J. :---The appellant is the accused in Special Criminal Case No. 47/92 on the file of Narcotic Drugs and Psychotropic Substances Court, Mapusa. He stood charged before the Court on two grounds: Firstly, under section 20(b)(ii) of the N.D.P.S. Act, for having found to be on 1-12-1991, at about 6.30 p.m., at Arambol beach in possession of 100 grams of charas without any justification and any legal documents; Secondly, under same section 20(b)(ii) of the N.D.P.S. Act, on the allegation that on the same date, at about 9.00 p.m., at Mapusa Hotel Safari, the police recovered 2,860 Kgs. of charas from the room No. 10 of the hotel which he was occupying. Appellant pleaded not guilty. For both the offences, the Court below convicted and sentenced him for 12 years of Rigorous Imprisonment and a fine of Rs. 1,15,000/- or, in default, to pay the fine, another period of 1 year of Rigorous Imprisonment. 2.According to the prosecution case, on 1-12-1991, while the police party including P.S.I. Mhamal and other 3 policemen along with 2 panchas was on patrolling duty at Arambol beach at about 6.25 p.m., they noticed that the accused along with another boy, both Nepalese, started running away on seeing the party. Thereupon, the P.S.I. and the police staff chased them and apprehended the accused on suspicion that they were in possession of drugs. The accused was carrying one red colour arm-bag with some yellow colour flowers. On a thorough search of the said bag, a black substance suspected to be charas weighing 100 grams worth about Rs. 3,000/- was found. Charas was seized and attached and after packing and sealing properly, signatures of the panchas were taken. Then P.S.I. Mhamal filed his complaint against the accused for possession of 100 grams of charas without having any valid documents and the accused failed to account for the possession of the said charas. Samples were taken and forwarded to Food and Drugs Laboratory for chemical analysis. Then the accused was brought to Pernem Police Station where the complaint was registered. Then the accused, at the Pernem Police Station, while in custody, disclosed that they had come from Himachal Pradesh and were staying at a Hotel at Mapusa called Safari where they had brought the charas and kept. Then the accused was brought to Pernem Police Station where the complaint was registered. Then the accused, at the Pernem Police Station, while in custody, disclosed that they had come from Himachal Pradesh and were staying at a Hotel at Mapusa called Safari where they had brought the charas and kept. Then the accused along with the panchas and the police staff headed by P.S.I. Mhamal proceeded to Mapusa in a police jeep. When the party was about to reach Safari Hotel, the accused asked the jeep to stop and all of them alighted from the jeep and went inside the Hotel Safari. On some previous information, D.Y.S.P. Shukla also came in a vehicle at Hotel Safari. Then the accused led all the police party to Room No. 10 of Hotel Safari, removed a key from his pocket and opened the lock which he himself had put on the door of Room No. 10. Then the accused and the raiding party entered into the room wherein he removed a military colour shoulder bag which was kept under the bed. He then started removing certain household articles and clothes from the bag and in one military colour banian, some packets of charas in the form of sticks wrapped in polythene paper were found hidden. There were 193 sticks of charas which weighed 2.860 Kgs. All the packets of charas were put in polythene bag and placed in a cardboard box which was wrapped in brown paper and sealed and then the signatures of the panchas were taken. The said substance was attached under a panchanama. Certain belongings of the accused were also seized and the list of articles was prepared and copies of panchanama and list of articles were furnished to the accused. On the receipt of the report of the Chemical Analyser, charge-sheet against the accused was filed under section 20(b)(ii) of the N.D.P.S. Act. The said substance was attached under a panchanama. Certain belongings of the accused were also seized and the list of articles was prepared and copies of panchanama and list of articles were furnished to the accused. On the receipt of the report of the Chemical Analyser, charge-sheet against the accused was filed under section 20(b)(ii) of the N.D.P.S. Act. 3.The Counsel for the appellant/accused, inter alia, contended (i) that the search and recovery from the person of the accused made on 1-12-1991 at 6.30 p.m. at Arambol beach is illegal as the procedure under section 50 of the N.D.P.S. Act has not been complied with and, therefore, trial is vitiated on that account and the accused is entitled to be acquitted; (ii) that, as regards the second search, sections 42, 52 and 57 are not complied with and since those sections are mandatory the trial is vitiated in violation of those sections; and (iii) the delay in sending the sample to the Analyst is detrimental to the case of the prosecution. He also argued that there were material contradictions which affected the prosecution. 4.As regards the first point, we see considerable force in his argument. The recovery was made on the person of the accused without complying with section 50 of the N.D.P.S. Act. This section is held to be mandatory. Admittedly, there was no Gazetted Officer present when the search of the person of the accused was made. Nor any offer was made by the Police Officer to the accused of being searched in the presence of the Gazetted Officer. The decisions of the Supreme Court on this point are quite clear. The Supreme Court on this point has consistently held that provisions of section 50 of the N.D.P.S. Act are mandatory and, in the absence of Gazetted Officer, the search, if made, is illegal. The Supreme Court in its latest decision in (Mohinder Kumar v. State of Goa)1, A.I.R. 1995 S.C. 1157 held in para 3 of the judgment thus :- "... Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by section 42(2) of the Act because he had not made any record under the proviso to section 42(1). He also did not forward a copy of the ground to his superior officer, as required by section 42(2) of the Act because he had not made any record under the proviso to section 42(1). He also did not adhere to the provisions of section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh's case, it has been further stated that the provisions of section 52 and 57 of the Act, which deal with the steps to be taken by the officer after making arrest or seizure are mandatory in character. In that view of the matter, the learned Counsel for the State was not able to show for want of material on record, that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be acquitted." Therefore, in view of the aforesaid view taken by the Supreme Court, the appellant is entitled to be absolved from the offence of the first recovery alleged to have been made from his person on 1-12-1991. In this view of the matter, other criticism made by the Counsel with regard to the first recovery need not be discussed by us any further. 5.As regards the second recovery, we find that there is no force in the arguments of the Counsel for the appellant. We find that sections 42, 52 and 57 have been complied with. The search was made by the competent Officers as authorized by section 42. Elaborating his arguments, the learned Counsel for the appellant contended that the search was done in the night at 10.30 p.m. which is not authorized by the Act. He submitted that the search under section 42 could be made only between sunrise and sunset. He also contended that other requirements of section 42 have also not been complied with. We agree that it is true that certain restrictions have been placed under section 42 with regard to search, recovery and seizure. One of such restrictions is that no search could be done under section 42 if it is done in a private place or house between sunset and sunrise. We agree that it is true that certain restrictions have been placed under section 42 with regard to search, recovery and seizure. One of such restrictions is that no search could be done under section 42 if it is done in a private place or house between sunset and sunrise. As rightly pointed out by the Counsel for the State, these restrictions are not applicable to search or seizure made under section 43. Section 43 does not restrict a search or seizure or arrest by the competent officer in a public place. In a public place, any officer authorized under section 42 can conduct search, seizure and arrest if it is in a public place. The hotel, being a public place, restrictions under section 42 were not required to have been observed. 6.To counter this argument of the learned Public Prosecutor, the Counsel for the appellant submits that it cannot be said that the room which is in the exclusive custody of the accused, particularly with the lock and key belonging to him and no other person as a matter of right could be entered into the room, it cannot be said that the room in which the search was made is a public place though it is in a hotel. This controversy, of course, led us to the meaning given to the "public place" occurred in Explanation to section 43 of the N.S.P.S. Act. 7.Explanation to section 43 of the N.D.P.S. Act. reads as follows:- "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." It has been explained there that any place which is accessible to public or any place which is intended for use by the public will come under the term "public place". A wide connotation has been given in the Explanation to section 43 of N.D.P.S. Act to the term "public place". All conceivable public places like public conveyance, hotels, shops, any other public places intended to be used by public are included in that term. Therefore, in this case, the raid has been conducted, admittedly, in a hotel. A wide connotation has been given in the Explanation to section 43 of N.D.P.S. Act to the term "public place". All conceivable public places like public conveyance, hotels, shops, any other public places intended to be used by public are included in that term. Therefore, in this case, the raid has been conducted, admittedly, in a hotel. The contention of the learned Counsel for the appellants is that once a room is given to a customer and he puts his own lock and key to that room, he becomes in the exclusive possession of the room and no member of the public are allowed to enter in that room without permission of the occupier of the room. The hotel owner or Manager or other authority has no control over the room which was let out to a customer. Therefore, though 'hotel' has been included in the Explanation of "public place" when the possession of the room is passed on to a customer which is under his absolute control, the characteristic of public place of that particular room ceases and it will become a private place. We cannot agree with this contention of the learned Counsel for the appellant for the simple reason that the premise on which the argument was developed by the Counsel for the appellant is not consistent with the intention and policy of the Legislature. When a room in a hotel is let out to a customer, the animus possidendi is not passed on to the customer. He is only an occupier. The legal incidence that emerges when a room is let out to a customer is only that of a licensee; and the possession of the room still vests in the owner or the manager of the room. It is more so when 'hotel' itself is expressly included in Explanation to section 43. In that context, it is unnecessary to base the argument on the legal incidence of letting out of the room. Therefore, the first limb of the argument of the learned Counsel for the appellant cannot be acceptable. Even in the absence of an explanation to section 43, 'public place' has been the subject-matter of interpretation in several decisions of the High courts and the Supreme Court. Therefore, the first limb of the argument of the learned Counsel for the appellant cannot be acceptable. Even in the absence of an explanation to section 43, 'public place' has been the subject-matter of interpretation in several decisions of the High courts and the Supreme Court. Before we go into such exercise, we would like to first examine the meaning given to the term "public place" in Law Lexicon:- "Public place:- The accused can also be hauled up if any offence is committed at "any place" which may not be a public place but to which the public have or are permitted to have access. ............ ............ ............ The principle enunciated in (Queen v. Wellard)2, 1884(14) Q.B.D. 63, is that a place is public place though it is private property when it is shown that the public are in the habit of resorting to it and no one is prevented therefrom so resorting to it. This principle was followed in a number of cases by almost all the High Courts." Therefore, even grammatical meaning, if ascribed to that word, a hotel is a public place. 8.In (State of Kerala v. Cherian Secariah and others)3, A.I.R. 1967 Kerala 106, the High Court of Kerala was examining the meaning of the term 'public place' occurring in Kerala Gaming Act, 1960. The learned Judge of the High Court of Kerala after enumerating various decisions including the decision of Queen v. Wellard has held as follows:- "It is unnecessary to multiply decisions on this point. The principle deducible from all these decisions is that in order to constitute a public place it is not necessary that the place should be a public property, but if it is a private property it must be proved that not only the public could have access to it, but it is a place to which members of the public in fact resort." The dictum laid down in this decision is that even if the place is a private one, if the members of the public can resort to it, the characteristic of the place becomes changed and it can be then called as a public place. In (State v. Dohana Jamnadas and others)4, A.I.R. 1961 Guj. In (State v. Dohana Jamnadas and others)4, A.I.R. 1961 Guj. 182 a Division Bench of Gujarat High Court interpreting the word 'public place' occurring in Bombay Prevention of Gambling Act, 1887 held thus:- "The test of a place being a public place within the meaning of section 12 is whether it is open to the members of the public or not, even though there may be certain conditions attached to the entry of the use thereof. What is required is that such a place must be open for entry by an indeterminate number of members of the public and must not be open only to a definite or a determinate number." Therefore, a hotel room which was taken on rent by a customer or during his occupation is liable to be considered as a public place. The so-called occupation of the room in hotel is merely permissive. As we pointed out earlier, characteristic of a room in a hotel does not change merely because entry to a room in a hotel is restricted on payment of rent. It is a place where an entry by an indeterminate number of members of public are entitled. The entire hotel or rooms in hotel are intended to be accessible to the members of the public. A room in a hotel cannot be considered as a private place. The use of the word 'includes' in the Explanation appended to section 43 of the Act and the scheme of the Explanation read as a whole clearly proves that the Authorised Officer is entitled to effect search in a public place or in transit without following the mandate of section 42 of the Act. The reasons for differentiation in the cases covered under section 42 of the Act and the cases covered under section 43 of the Act are far too obvious. In view of these decisions, we need not labour ourselves further to dwell upon this point any more. Therefore, in view of the above discussion, we have no hesitation in holding that a room in the hotel which is for the time being in custody of a customer will not cease to be a public place. In view of these decisions, we need not labour ourselves further to dwell upon this point any more. Therefore, in view of the above discussion, we have no hesitation in holding that a room in the hotel which is for the time being in custody of a customer will not cease to be a public place. Therefore, if search and recovery made in the room which was in the custody of the appellant in the Safari Hotel, in this case in the night, would not come under section 42 of the N.D.P.S. Act, but will definitely come under all four corners of section 43 of the said Act and, therefore, nothing can be said to assail the recovery made from that room. The learned Counsel for the appellant did not submit that the requirements pertaining to search and recovery laid down by section 43 of the N.D.P.S. Act were violated. 9.The next argument advanced by the Counsel for the appellant is that the disclosure made by the appellant and the search made in the Hotel pursuant to the disclosure will not amount to a disclosure as contemplated under section 27 of the Evidence Act. He contended that the search made in the Hotel room was done on the basis of information received by the police independently of the accused. We do not agree. The fact that the presence of the Police Officer attached to Mapusa Police Station was found at the site even before the accused and P.W. 2 and Police Officers reached the Safari Hotel will go to show that the Police Officer had independent information about the concealment of drugs in the Hotel room. If that be the case, the Counsel argues that the recovery made in the Hotel room is not in conformity with section 42 of the Act. He further contended that the information has not been reduced to writing which is mandatory in this case. He contended that the information already received and the recovery made pursuant to that information cannot be termed to be a recovery under section 27 of the Act. The Counsel also submitted that the alleged statement made by the appellant regarding keeping charas in Hotel room cannot be strictly a disclosure made by the appellant under section 27 of the Evidence Act as he was not in custody of police at the relevant time. The Counsel also submitted that the alleged statement made by the appellant regarding keeping charas in Hotel room cannot be strictly a disclosure made by the appellant under section 27 of the Evidence Act as he was not in custody of police at the relevant time. These contentions were rightly rejected by the trial Court having regard to facts and circumstances of the case emerging from the evidence on record. In fact, when disclosure was made by the appellant, he was in custody of the police after effecting of first search of his person. Therefore, the appellant cannot make out a case on the ground that recovery made in Hotel room was not in conformity with section 27 of the Evidence Act. The fact that the Officer from Mapusa Police Station had already reached the venue of the Hotel by itself does not affect the evidenciary value of the disclosure made by the accused and the search made consequent thereon and the admissibility of the statement made by the accused under section 27 of the Act. The learned Counsel further contended that the Laboratory test of the drug recovered in the second recovery was done after 10 months and this vitiated the trial. The prosecution has given sufficient and convincing explanation which has been appreciated by the Court below that the fact that the sample had not been sent to chemical analysis was found out only after 10 months when the matter came up before the Court. It cannot be disputed that the sample was taken and sealed for sending for chemical analysis in the presence of the Court, the accused, the other panchas and concerned Police Officers. The integrity of the search and the identity of the contraband cannot be reasonably suspected or doubted. Therefore, the delay in forwarding of the sample to the Laboratory is of no consequence. The contraband was in custody of the Court at all relevant times. 10.The learned Counsel for the appellant has made a fervent attempt to take us to certain discrepancies and contradictions stated regarding the weight of the drugs by different witnesses. Another contradiction pointed out was with regard to the evidence of P.W. 3 P.W. 3 in his statement he says that the accused checked in the Hotel on 30-11-1991 and in the evidence he says that he was checked in on 1-12-1991. Another contradiction pointed out was with regard to the evidence of P.W. 3 P.W. 3 in his statement he says that the accused checked in the Hotel on 30-11-1991 and in the evidence he says that he was checked in on 1-12-1991. However, even if there is any discrepancy regarding the date of the accused checking in, we do not attach any importance to this discrepancy. It is a minor discrepancy and it does not affect the prosecution case. We find the testimony of Investigating Officer and the panchas quite convincing. A contradiction and discrepancy which is not very significant and which is not capable of throwing any doubt on the guilt of the accused has to be ignored by the Court. We find that the trial Court was perfectly justified in finding the accused guilty as regards the recovery made in the room in the Hotel Safari pursuant to the disclosure made by the accused himself. The evidence in respect of the statement of accused leading to discovery of charas in a room in hotel was clearly admissible under section 27 of the Act. The conviction and sentence by the Court below under section 20(b)(ii) of the N.D.P.S. Act with regard to recovery made in Hotel room is required to be confirmed. The learned Counsel for the appellant has not been able to convince us that the order of conviction passed against the accused on this count suffers from any legal infirmity. 11.As we pointed out earlier, the accused/appellant is entitled to acquittal of the charges levelled against him regarding the first recovery from his person. Therefore, the conviction and sentence awarded by the Court below requires modification. We, therefore, confirm the finding of guilt of the accused recorded by the trial Court with regard to the second recovery. The accused was in unlawful and illicit possession of narcotic drugs. The conviction and sentence recorded by the Court is modified as indicated below. The accused is directed to suffer rigorous imprisonment for a period of 10 years and pay a fine of Rs. 1,00,000/-, in default of payment of fine, to suffer rigorous imprisonment for another period of 1 year, instead of suffering rigorous imprisonment for a period of 12 years and pay a fine of Rs. 1,15,000/- as directed by the trial Court. 1,00,000/-, in default of payment of fine, to suffer rigorous imprisonment for another period of 1 year, instead of suffering rigorous imprisonment for a period of 12 years and pay a fine of Rs. 1,15,000/- as directed by the trial Court. 12.In the result, this appeal is partly allowed and the conviction and sentence awarded by the Court below is modified to the extent indicated above. In all other respects, the judgment under appeal is confirmed. Appeal partly allowed.