Y. K. Sabharwal, J. ( 1 ) THE respondent, a Danish national, was intercepted at Airport by the Customs officer while he was leaving for Copenhagen on 22nd May 1996. The search of his luggage resulted in recovery of 975 grams of hashish. A complaint was filed by Customs Department through its Air Customs Officer Mr. Utpal Mishra Praying that the accused be tried and punished in accordance with law. The accused was charged for offences under Sections 21 and 23 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act ) for being in illegal and unlawful possession of 975 grams of hashish which he attempted to unsuccessfully export out of the country. ( 2 ) BY the impugned judgment the trial Court acquitted the respondent-accused mainly on the ground of non compliance of Section 42 of the Act holding that the non compliance of the said provision vitiates the prosecution. All other contentions urged on behalf of the accused were rejected by the trial Court. The Customs Department is in appeal before us. ( 3 ) RELYING upon a decision of a learned single Judge of this Court in Criminal Appeal No. 149/96 entitled Shri Richard Thomas Wrigley Vs. Customs and another 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. 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 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 of 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,- (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 an person ___ as reason to believe to have committed an 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 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. (2) Where an officer takes down any information n 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. 43. 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 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. "A reading of the aforesaid provisions, interalia, 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 send a copy thereof to his immediate official superior. The restrictions of Section 42 about the search, seizure, detention or arrest between sunrise and sunset is also not applicable where search, seizure, detention and arrest in relation to offence punishable under Chapter IV is committed at a public place. The restrictions of Section 42 about the search, seizure, detention or arrest between sunrise and sunset is also not applicable where search, seizure, detention and arrest in relation to offence punishable under Chapter IV is committed at a public place. The explanation to Section 43 sets out inclusive definition of the expression "public place" to include any public conveyance, hotel, shop or other place SMB to, the public. The definition of the expression "public place" is very wide. For deciding whether a particular area/place is or is not a "public place" the determining factor is whether the same is accessible to or intended to be used by public or not. The accessibility of the public to such a place can be restricted or unrestricted. A restricted accessibility could be where a fee may have to be paid for entry to such a place or a permission is required for entry or alike. Even with these restrictions the place would remain a "public place". These restrictions by itself would not change the character of a "public place" and will not result in a public place losing its character as such. That place would be a "public place" to which public have or permitted to have access on payment or otherwise. ( 5 ) THE Airport or Custom area at the Airport or Custom counter or Luggage hold area or Immigration area or alike at the Airport would thus be a public place. These areas are accessible to the public, may be with certain restriction or requirement of a permission for entry into these areas. ( 6 ) IT could not have been the intention of the Legislature that at the aforesaid areas at the Airport, search, seizure, detention and arrest for commission of an offence under Chapter IV of the Act shall not take place between sunset and sunrise. It is also not practical. It will almost make impossible the detection of offences under the Act which may be committed at the Airport. It is well known that many International flights depart from India and also reach India between sunset and sunrise. It could not have been intended that the persons in respect of whom there may be reasonable apprehension of commission of offence under Chapter IV of the Act at the Airport, they should not be subjected to investigation between sunset and sunrise. It could not have been intended that the persons in respect of whom there may be reasonable apprehension of commission of offence under Chapter IV of the Act at the Airport, they should not be subjected to investigation between sunset and sunrise. ( 7 ) IN Wrigly s case (supra), in respect of 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 custs 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 enter without due permission. Therefore, that area would be covered by the provisions of Section 42 of the Act. " ( 8 ) WITH respect we are unable to subscribe to the view that the aforesaid areas cannot be described as "public place" merely because entry thereto is restricted. NO doubt the provisions of Section 42 are mandatory but the said provisions are not applicable at International Airports which is clearly a "public place" to which Section 43 would apply and not Section 42 of the Act. It may also be noticed that the judgment in Wrigley s case has since been stayed by the Supreme Court. NO doubt the provisions of Section 42 are mandatory but the said provisions are not applicable at International Airports which is clearly a "public place" to which Section 43 would apply and not Section 42 of the Act. It may also be noticed that the judgment in Wrigley s case has since been stayed by the Supreme Court. ( 9 ) AS already noticed, the main ground which resulted in the acquittal of the respondent was non-compliance of Section 42, and all other points were decided by learned trial Court in favour of the prosecution. In this view, learned counsel for the respondent-accused has challenged before us some of the points decided against his client by the trial Court. ( 10 ) IT was contended that Section 57 of the Act is mandatory. In support, reliance has been placed on the decision of the Supreme Court in Mohinder Kumar Vs. The State, Panaji, Goa, AIR 1995 SC 1157 and a decision of a learned single Judge of this Court in Mr. Jacob Lawnson Vs. State, 1996 II AD (Delhi) 81. ( 11 ) IN Mohinder Kumar s case the Supreme Court has observed that:- "in Balbir Singh s case, it has been further stated that the provisions of Sections 52 and 57 of the Act, which deals with the steps to be taken by the officer after making arrest or seizure are mandatory in character. " ( 12 ) IN Lawnson s case a learned single Judge of this Court after noticing decision of the Supreme Court in State of Punjab Vs. Balbir Singh, 1994 (1) Crimes and Mohinder Kumar s case (supra) held Section 57 of the Act to be mandatory observing that decision in the case of Mohinder Kumar is subsequent. ( 13 ) IN Mohinder Kumar s case the Supreme Court as such has not held Section 57 of the Act to be mandatory but has observed that in Balbir Singh s case the said provision was held to be mandatory in character. Balbir Singh s case, however, holds to the contrary. In Balbir 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. Balbir Singh s case, however, holds to the contrary. In Balbir 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 s 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 investigation etc could be conducted only by an officer of the rant of Inspector or above. Notification No. 7/85 dated 14th November 1985 reads as under :- "notification No. 7/85-dated 14. 11. 1985. S. O. 823 (E) in exercise of the powers conferred by Sub-section (1) of Section 58 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government, after consultation with all the State Governments hereby invests the officers of and above the rank of Inspector in the departments of Central Excise, Narcotics, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau with the powers specified in Sub-section (1) of that section. " ( 16 ) IT cannot be disputed that the officers of Department of Customs as postulated by Section, 53 have to be of the rank of Inspector or above. Learned counsel for the appellant has explained that the Inspectors of Customs, when posted at the Airport are called Air Customs Officers but nevertheless they remain the Inspectors. " ( 16 ) IT cannot be disputed that the officers of Department of Customs as postulated by Section, 53 have to be of the rank of Inspector or above. Learned counsel for the appellant has explained that the Inspectors of Customs, when posted at the Airport are called Air Customs Officers but nevertheless they remain the Inspectors. An Establishment Order No. 234/94 issued by Customs and Central Excise Collectorate has been produced before us. This document, interalia, sets out the names of Inspectors who are transferred and posted as Air Customs Officers at IGI Airport, New Delhi with effect from 1. 10. 1994 and until further orders. Mr. Utpal Mishra is one of such Officer/inspector. In this view we find no substance in the contention that Mr. Utpal Mishra was not the Inspector and thus was not duly authorised to investigate the case or file the complaint. ( 17 ) THE next contention was that Section 55 has not been complied with in that it has not been established that the sample had been kept in the custody of the local area of the Police station as postulated by this provision. Section 55 has, however, to be read in conjunction with Section 53 of the Act. Under Section 53 any officer of the Departments mentioned therein, Customs being one of them, can be invested with the powers of an officer incharge of a Police station for investigation of the offences under the Act. It is not in dispute that Customs officer has been invested with such powers of an officer incharge of a Police station for the investigation of an offence. The samples could thus be legally kept in the malkhana of the Customs department and there is no requirement in law that the same should be sent to the local Police station. 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. 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 Gujrat High Court in the case of Saiyad Mohd. Saiyad Umar Saiyed and Ors Vs. 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 is also no substance in the grievance that the officers who had in fact carried out the analysis, namely, Anwar Alam and R. K. Bharti were not examined as witnesses. These officers had analysed the samples in the presence and direct supervision of Sh. Y. K. S. Rathore, Chemical Examiner, who was examined by prosecution as PW-4. Despite lengthy cross examination the accused could not discredit the testimony of PW-4. ( 19 ) WE were taken through the evidence but we did not find any material contradiction in the evidence of the prosecution including the testimony of PW-5 Deepak Chaudhary. Regarding retraction we find the approach of the learned trial Court to be correct. Besides the fact that the retraction was at a belated stage, the statement of the accused Ex. PW-2/a which runs into 3 pages was in his own handwriting and it also makes a mention about the warning that the statement can be used adversely against him in a court of law. ( 20 ) FOR the aforesaid reasons, we are of the view that the impugned judgment acquitting the respondent cannot be sustained. PW-2/a which runs into 3 pages was in his own handwriting and it also makes a mention about the warning that the statement can be used adversely against him in a court of law. ( 20 ) FOR the aforesaid reasons, we are of the view that the impugned judgment acquitting the respondent cannot be sustained. Accordingly, we allow the appeal, set aside the judgment of the trial Court and convict the accused of charge of having committed an offence punishable under Section 20 (b) (ii) of NDPS Act, the prosecution having successfully proved that the respondent attempted to illegally export 975 grams of Hashish out of India in contravention of Section 8 (c) of the Act and the accused committed an offence, punishable under Section 28 read with Section 23 of the Act. ( 21 ) IN view of above, the respondent is sentenced to undergo rigorous imprisonment for ten (10) years and shall also be liable to pay fine of Rupees One lakh and shall undergo further rigorous imprisonment of One year on failure to pay the fine.