Judgment : K. SWAMIDURAI, J. ( 1 ) THE accused No. 1 in S. C. 215/1990 on the file of VIII Additional Sessions Judge, Madras is the appellant in C. A. 458 of 1992 and the 2nd accused in S. C. 2151 1990 on the file of the said court is the appellant in C. A. 457 of 1992. ( 2 ) A. 1 was charged for the offence under Section 8 (c) read with 29, 8 (c) read with 21, 21 read with 30 and 28 of N. D. P. S. Act 1985 and the 2nd accused was also charged under the same sections. Both were tried be common trial and both the accused were found guilty and sentenced to surfer R. 1. for 10 years and to pay a fine of Rs. 1,00,000/- in default to undergo R. 1. for 2 years. The 1st accused was found guilty under Section 8 (c) read with 29 of N. D. P. S. Act 1985 and convicted and sentenced to suffer R. 1. for 10 years and to pay a fine of Rs. Lakh in default to undergo R. 1. for 2 years; under Section 8 (c) read with 21 and convicted and sentenced to suffer R. 1. for 10 years and to pay a fine of Rs. 1,00,000/-in default to suffer R. 1. for 21/2 years; under Section 21/2 read with Section 30 and convicted and sentenced to suffer R. 1. for 5 years and to pay a fine of Rs. 50,000/-in default to suffer R. 1. for 15 months and u/s 28 and convicted and sentenced to suffer R. 1. for 10 years and pay a fine of Rs. lakh in default to undergo R. I. for 21/2 years and the sentences are to run concurrently. The 2nd accused is found guilty under Section 8 (c) read with Section 29 and convicted and sentenced to suffer R. I. for 10 years and to pay a fine of Rs. lakh in default to undergo R. 1. for 21/2 years; u/s 29 and convicted and sentenced to suffer R. 1. for 10 years and to pay a fine of Rs. 1 lakh in default to undergo R. 1. for 21/2 years u/s 28 and convicted and sentenced to undergo R. 1. for 10 years and to pay a fine of Rs. 1 lakh in default to undergo R. 1. for 10 years and to pay a fine of Rs. 1 lakh in default to undergo R. 1. for 21/2 years u/s 28 and convicted and sentenced to undergo R. 1. for 10 years and to pay a fine of Rs. 1 lakh in default to undergo R. 1. for 21/2 years and sentences are directed to run concurrently Both the accused are entitled to set off for the period in detention already undergone. ( 3 ) THE case of the prosecution is briefly as follows: - On 4. 10. 1990 at about 12-20 hours on an information received over phone, the officers attached to the Narcotic Control Buryau, conducted a search of an open courier cover produced by the Regional Manager at M/s Blue Dart Courier Service, Cessions Complex, ignore, Madras8 in the presence of independent witnesses. The Courier cover booked by the brother of the 2nd accused by name Judge Nwekenkwe from Antiqua and addressed to the 2nd accused, could not be served and therefore, the Manager of the service, opened the cover to find out alternative address if any, for delivery. As per his company procedure, on such opening, he learnt that some illegal activities were being carried on by the parties concerned. On search the officers recovered U. S. $ 3000 (30 sets of 100 dollar denomination) concealed in a book titled Just for you inside the courier cover. Besides, they recovered envelopes with greeting cards, color photographs and handwritten letters. The letters indicated that the foreign currency was meant for purchases and alleged export of Brown Sugar (Heroin), a narcotic drug, out of India, thereby violating the relevant provisions of FERA 1973 and N. D. P. S. act, 1985. The above articles were seized under the cover of a mahazar. When the Officers were about to leave the premises of the said courier service, second accused came there to collect the said courier cover. He was taken by the officers to the Bureau for enquiry. Second accused gave a voluntary statement admitting that his brother Jude had sent the foreign currency for purchase of the Brown Sugar to be sent to Antigua through courier service in a concealed manner. He was taken by the officers to the Bureau for enquiry. Second accused gave a voluntary statement admitting that his brother Jude had sent the foreign currency for purchase of the Brown Sugar to be sent to Antigua through courier service in a concealed manner. He also stated that he had arranged for supply or said substance by his friend, the 1st accused another Nigerian and that the latter had purchased the drug, packed in a concealed way and kept ready for delivery. The 2nd accused would have procured the stuff, its he had paid the foreign currency to the 1st accused. Further, accused No. 2 admitted that some time in January, 1990, his brother sent U. S. $ 1000 through courier parcel and he sent half a kilogram of brown sugar to his brother through one Titus, a Nigerian, after having purchased if from the 1st accused. Pursuant to the information or the A-2, the Officers conducted a searches of the residence of A. 1. at No. 7, Cheny Street, Ayanavaram, Madras on the night of 4. 10. 1990 before two independent witnesses and the At. and his wire, Mrs: Philomena. They seized two rectangular accounts books which contained brown sugar packed in polythene covers, which the 1st accused had purchased for Rs. 25,000/-from a Srilankan national, without permit or legal documents to possess. The sturf weighed 460 grams Another polythene cover containing 100 grams or brown powder was seized from the top portion or a cot. In the course of the said search, two pieces of a paper, which were attempt to be swallowed by the 1st accused but prevented by the officers, were also seized and on reconstruction, they disclosed the address of one S. Sridhar. Some more documents were also recovered from the almirah for further action. Samples were taken separately from the seized polythene covers for analyses under amahazars duly attested by the witnesses and the 1st accused, a copy of which was handed over to the 1st accused under acknowledgement. The 1st accused who was taken to the N. C. B. Office was examined on 5. 10. 1990 and he gave a voluntary statement. In it he stated among others that he purchased the brown sugar for personal consumption, kept concealed 460 grams for future use while 100 grams for immediate use. The 1st accused who was taken to the N. C. B. Office was examined on 5. 10. 1990 and he gave a voluntary statement. In it he stated among others that he purchased the brown sugar for personal consumption, kept concealed 460 grams for future use while 100 grams for immediate use. He did not satisfactory explain the source of money or why he purchased such a large quantity for personal consumption and failed to furnish details of moneys received by him through normal banking channels. He also failed to accounts for the mention of his name in the letters seized from the courier cover and gave evasive explanation to the word garments found in the letters. He denied that 2nd accused was to purchased narcotic drug from him, and his wife, Mrs. Philomena, had anything to do with the drugs. The statement of Mrs. Philomena was recorded. On enquiry, S. Sridhar, whose name was found in the torn pieces of paper, expressed ignorance of the 1st accused but stated that he gave the said address to his two Nigerian friends, Sam and. Austin. His statements was recorded on 5. 10. 1990. Both the accused were arrested at 5. 00 P. M. on 5. 10. 1990 and remanded to Judicial custody before the learned Additional Chief Metropolitan Magistrate, E. O. I. Madras-8 After analysis of tile samples of the seized powder, a report was received to the effect that they contained society Morphine (heroin) Further investigation was pursued. The statements of witnesses were recorded. It was learnt that the 2nd accused made use of Telephone No. 66730 attached to the office of Friends Missionary Prayer Band, Kilpauk, Madras situate opposite to the residence of the 2nd accused and the statement of the Executives Coordinator of said Missionary Ban, Mr. Frank Manual was recorded on 6. 11. 1990. The statements of Mrs. Getsy Vanita and others were recorded with whom the A. l had a quittance and sought help for getting passport for Mrs. Philomena and receiving parcels and mails, meant for him. Thus the Al and A2 have criminally conspired and contravened the provisions of N. D. P. S. Act 1985 punishable under Section 8, 23, 28, 29 and 30 read with 21. Philomena and receiving parcels and mails, meant for him. Thus the Al and A2 have criminally conspired and contravened the provisions of N. D. P. S. Act 1985 punishable under Section 8, 23, 28, 29 and 30 read with 21. ( 4 ) THE learned Additional Chief Metropolitan Magistrate, B. O. I. , Egmsore, Madras-8 took the complaint of the M. C. B. on file and assigned P. R. C. No. 8 of 1990. Later, the ease was made over to the file of the learned Additional Chief Metropolitan Magistrate E. O. II. The copies of all documents relied upon by the prosecution were furnished to the accused under section 207 Cr. P. C. After questioning the accused, the case was committed to VIIIth Additional Sessions Judge, Madras for disposal according to law. After hearing both sides and perusing the records, the VIII Additional Sessions Judge, framed charges u/s 8 (c) read with 29, 8 (c) read with 21; 21, read with 30 and 28 against A. 1 and 8 (c) read with 29; 29 and 28 against A. 2. under N. D. P. S. Act, 1985. When again the accused were explained about the charges framed and questioned they denied having committed the offences and pleaded not guilty. ( 5 ) THE prosecutions has examined P. Ws. 1 to 11 and marked Exhibit P. 1 to P. 55 and No. 1 to 17 were also marked. The accused have examined D. Ws. 1 and 2. P. W. l Mr. N. Viswanathan is working as Superintendent at N. C. B. Madras. P. W. 2. Mr. Raghavan is working as Intelligence Officer at N. C. B. , Madras. , P. W. 3 Mr. Appaiya is working as Investigating Officer, M. C. B. Madras, P. WA. Mr. Prabakar, is working as 1. 0. , N. C. B. Madras, P. W. 5 is one, Mr. Simpson Kumar Edward, and he is wrong as Operation Executive, M/s Blue Dart Courier Service, Egmore, Madras-5. P. W. 6 Mr. S. M. Menon is the Regional Manager of M/s Blue Dart Courier Service. P. W. 7 Mr. Jayaraj is working as Operation Staff in M/s Blue Dart Courier Service at Madras. P. W. 8 Mr. Dayanaidhi is working as a peon at Telephone Office. P. W. 9 Mr. P. W. 6 Mr. S. M. Menon is the Regional Manager of M/s Blue Dart Courier Service. P. W. 7 Mr. Jayaraj is working as Operation Staff in M/s Blue Dart Courier Service at Madras. P. W. 8 Mr. Dayanaidhi is working as a peon at Telephone Office. P. W. 9 Mr. Frank Manuel is working as Executive Coordinator in Friends Missionary Prayer Band, situate at Door No. 110, Baraka Road, Madras-10. P. W. l0 Mrs. J. S. Samuel, is the owner of house bearing Door No. 4, Chetty Street, Ayanavaram Madras-23. P. W. 11 Tmt Kokila Ramaswamy is working as Chemical Examiner in Customs Laboratory at Goa. Accused No. 1 and 2 are Nigerian Citizen. D. W. 1 Mrs. Philomena is the wife of a. 1. The trial court found that the prosecution has clearly established the guilt of the accused beyond all reasonable doubt and accordingly convicted and sentenced the accused No. 1 and 2 as mentioned in para 1 of this judgment. ( 6 ) IT is the defence of the accused that they have not committed any offence and the case has been foisted against them and the prosecution has failed to establish the case beyond all reasonable doubt. The learned counsel for the appellants submitted that the mandatory provisions of the N. D. P. S. Act have not been complied with viz. , Mandatory Provisions Sections 42, 50, 51 and 57 have not been complied with in this case and so, it vitiates the prosecution case. According to him, P. W. 1. who received the information with regard to the parcel, has not recorded in writing. Further the contraband seized on 5. 10. 1990 was sent to court only 27. 3. 1991 and there is no satisfactory explanation for the delay in sending the contraband to the Court. ( 7 ) LEARNED counsel for the appellants submitted that the contraband was seized on 5. 10. 1990, but the samples were sent on 8. 10. 1990 for chemical analysis. Here also he has submitted that the prosecution has not given any satisfactory explanation for the delay. It is the case of the prosecution that confession statement was obtained from the 2nd accused as per Ex P-11 on 4. 10. 1990. But there is a statement in the confession statement of 2nd accused Yesterday on 4th October, 1990 at about 2. It is the case of the prosecution that confession statement was obtained from the 2nd accused as per Ex P-11 on 4. 10. 1990. But there is a statement in the confession statement of 2nd accused Yesterday on 4th October, 1990 at about 2. 00 P. M. I went to Blue Darts Courier Service, Sessions Complex, First Floor, near Montieth Road, Egmore, Madras-8. From this sentence it appears that the confession statement should have been obtained on 5. 10. 1990 only and not on 4. 10. 1990. There is no explanation for this vital discrepancy on the side of the prosecution. P. W. 4 Prabakar has given evidence that he had deposited the properties into the court on 27. 3. 1991. Mr. Sambamoorthy, learned counsel for the appellants contended that Ex. P-31 report under Section 57 of the N. D. P. S. Act, 1985, does not contain the full report and on a perusal of the same, the contention of the appellants is well founded, since Ex. P. 31 speaks about the arrest of the two accused on 5. 10. 1990 at 17. 00 Hours as they are allegedly involved in the trafficking of 560 grams of brown powder suspected to be the brown sugar under the N. D. P. S. Act, 1985, Ex. P. 31 does not satisfy the requirements under Section 57 of the N. D. P. S. Act. ( 8 ) LEARNED counsel for the appellants contended that there is no averment in the complaint filed against the accused in the lower court to show that the property seized was deposited in the trial court. When the complaint was filed on 16. 11. 1990. Even at the time of remand it appears that the property seized was not deposited in the trial court. Learned counsel for the appellants relied upon a judgment reported in Sundaresan Alias Meganathan Alias Mega v. State Represented by The Inspector of Police. R4 Pondy Bazaar Police Station. T. Nagar, Madras-171, in which I am a party, for the proposition that the provisions under section 50 and some other sections of N. D. P. S. Act are mandatory. Admittedly in this case the search was effected only after sunset. R4 Pondy Bazaar Police Station. T. Nagar, Madras-171, in which I am a party, for the proposition that the provisions under section 50 and some other sections of N. D. P. S. Act are mandatory. Admittedly in this case the search was effected only after sunset. Learned counsel for the appellant relied upon the Judgment reported in State of Punjab v. Balbir Singh (Judgment today 19942 S. C. 108), in which the Supreme Court held that the provisions under sections 41, 42, 50, 51, 52 and 57 of the N. D. P. S. Act arc mandatory. In the case of Valsala v. State of Kerala, there is a delay of more than three months in standing the seized articles to the court and there is no evidence to show that articles are seized and kept in the proper custody in the Police Station and sending of the very articles seized to chemical Examiner was found highly doubtful and so the Supreme Court set aside the conviction. Learned counsel for the appellants relied upon the judgment reported in Ved Prakash Alias Tatoo v. State of Haryana. In that case the secret information was not reduced into writing and the provisions of section 42 of the N. D. P. S. Act was found violated. In Rajini v. State of Tamil Nadu. I have held that the information received by the official of the Narcotic Bureau was no reduced into writing, and so the provisions under section 42 (1) of the Act was violated. Learned Public Prosecutor contended hat the lower court has relied upon certain decisions which are referred to in the judgment of the trial court itself and in view of the same there is no violation of any of the provisions of the N. D. P. S. Act I have carefully considered the rival contention of the learned Public Prosecutor and of the learned counsel for the appellants and I am of the opinion that the provisions under Sections 42, 50 and 57 of the N. D. P. S. Act have been violated and as a result the prosecution case is vitiated. In the factual circumstance of this case the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt and therefore, the conviction and sentence of the trial court are set aside and the appeals are allowed. The appellants are acquitted. In the factual circumstance of this case the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt and therefore, the conviction and sentence of the trial court are set aside and the appeals are allowed. The appellants are acquitted. The fine amount if paid shall be refunded to the appellants. Appeal allowed.