Divakaran v. State of Kerala — 1998 DIGILAW 721 (MAD)

JUDGMENT: 1. The first accused in Sessions Case No.81 of 1994 on the file of the Sessions Court, Thalassery is the appellant in Crl.Appeal No.497 of 1995. The complaint in the same case is the appellant in Crl.Appeal No.755 of 1995. 2. Three accused persons were prosecuted for the offences punishable under Sec.8(c) read with Secs.21 , 28 and 29(1) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called ‘the Act’) on the basis of the complaint filed by the Intelligence Officer, Narcotic Control Unit, Cochin in O.R.No.1/H/94, F.No.N.C.B/C.H.N/H/1/94. 3. The prosecution case is as follows: On the basis of the information that illegal transaction in narcotic drugs was being conducted from building bearing No.XIX/469 of Thalassery Municipality called Alankar Manzhil at Thiruvangad which is the residential premises of the second accused, the Intelligence Officers of the Narcotic Control Bureau led by the Superintendent of Narcotic Control Bureau, Cochin searched the house on 6.3.1994 at about 10 a.m. in the presence of witnesses as per the search warrant issued by the Superindendent. At the time of search, accused Nos.1 and 3 were also found in the house. On search the first accused was found carrying one rexin bag containing brown sugar weighing 251 grams packed in polythene packet. In the room wherein accused 1 and 3 were present, two bundles of small polythene packets and a tiny common balance were found placed beneath a chair. The brown sugar was seized in the presence of witnesses and the accused and two samples were drawn out of it by preparing a mahazar. Polythene packets and common balance were also seized. As a follow up action the residence of the first accused at Pinarayi was searched at about 7p.m on the very same day and another packet of brown sugar weighing 251 grams was seized and two samples were drawn out of it in the presence of witnesses by preparing a mahazar at the spot. The first accused confessed that the article seized from his house was brown sugar and he had brought brown sugar to the house of the second accused for sale to the third accused and he was dealing in brown sugar for the past three years with the active assistance of the second accused. Accused 2 and 3 also gave voluntary statements. Accused 2 and 3 also gave voluntary statements. After recording the confession statements from the accused they were arrested and produced before the Judicial First Class Magistrate, Thalassery who remanded them. The samples taken from the seized articles were sent for chemical analysis to the Laboratory of Customs, Cochin. After analysis they reported that the sample constituted crude heroin. Hence the complaint was filed by the Intelligence Officer before the lower court against the accused alleging to have committed the aforesaid offences. 4. The lower court after trial found that the first accused is guilty of the offence punishable under Sec.21 of the Act and convicted and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.l lakh, in default of payment to undergo rigorous imprisonment for three years as per judgment dated 3.4.1995. The lower court also found that accused Nos.2 and 3 are not guilty of any of the offences alleged against them and they were acquitted and set at liberty. The first accused has preferred Crl.Appeal No.497 of 1995 challenging the finding of guilt, conviction and sentence entered by the lower court against him. The complainant has preferred Crl.Appeal No.755 of 1995 challenging the order of acquittal passed by the lower court against accused Nos.2 and 3. 5. The Special Public Prosecutor appearing for the complainant vehemently submitted that the lower court was in absolute error in finding accused 2 and 3 not guilty and acquitting them in this case. According to him, all the points found favour with the lower court to find that the first accused is guilty in this case are squarely applicable to the case of accused 2 and 3 also and therefore, accused 2 and 3 should be found guilty of and convicted and sentenced in this appeal. On the other hand, counsel for the first accused submitted that though the lower court on proper appreciation of the evidence on record found that accused 2 and 3 are not guilty of the offence alleged against them, the first accused was convicted and sentenced in this case on absolutely erroneous and untenable premises. According to him, he is not entitled to the benefit of doubt given by the lower court to accused 2 and 3. 6. According to him, he is not entitled to the benefit of doubt given by the lower court to accused 2 and 3. 6. From the evidence on record, it is clear that the article alleged to have been seized from the accused in this case is proved to be heroin. The evidence of P.W.8, Exs.P-20, P-21 and P-35 proved that the sample sent for analysis in this case is brown sugar. 7. The Special Public Prosecutor submitted that accused 1 to 3 are part of an international gang engaged in drug trafficking and they had entered into a conspiracy for sale of brown sugar. According to him, more than satisfactory evidence is adduced by the prosecution in this case to prove the offences alleged against all the accused. 8. He argued that on receipt of a vague information that the accused are engaged in sale of brown sugar, intelligence work was done by the Narcotic Control Bureau and accordingly P.W.2 the Superintendent of Narcotic Control Bureau issued search warrant of the house of the second accused and P.W.1 conducted the search as per the warrant. Therefore, compliance of the provisions of Sec.42 of the N.D.P.S. Act does not arise in this case. But counsel for the accused submitted that from the evidence of P.Ws.1 and 2 and the complaint filed in this case, it is patent that clear information was received by P.Ws.1 and 2 with regard to the commission of offence punishable under Chapter IV of the Act and therefore, noncompliance of the mandatory provisions of Sec.42 of the Act vitiates the entire prosecution. In paragraph 1 of the complaint filed by the complainant before the lower court, it is stated that on the basis of the information that illegal transaction in Narcotic Drugs is being conducted at building No.XIX/ 469 of Thalassery Municipality, the Officers of Narcotic Control Bureau, Cochin arrived at the residential premises of the second accused at House No.XIX/ 469, Alankar Manzil, Thiruvangad, Thalassery at about 10 a.m. on 6.3.1994 and the house was searched in the presence of the second accused and two independent witnesses under a search warrant issued by the Superintendent, Narcotic Control Bureau, Cochin, P.W.2, the Superintendent of Narcotic Control Bureau who issued the search warrant was present at the time of search and he has deposed when cross-examined on behalf of the 1st accused that before conducted in that house. He has also deposed that the belief was not reduced into writing¡ But according to him, he informed his immediate Superior Officer over phone and his personal diary will reveal that fact. That personal diary though available in the office is not produced in court. He has also deposed when cross-examined on behalf of the second accused that his party started from Cochin on the basis of reliable information, but that information is not recorded by them. According to him, they started from Cochin on 4.3.1994 and reached Thalassery on that day itself. P.W.1 has also deposed that on the basis of the information received by P.W.2 they left for Thalacherry from Ernakulam. Hence, the counsel for the accused submitted that it is clear from the evidence on record that P.W.2 had definite information about the business in narcotic substances from the house of the second accused before they left Ernakulam to Tellicherry in this case and therefore the contention of the prosecution that P.W.2 had only a very vague information and after conducting intelligence work it was decided to search the house of the 2nd accused, is not at all believable and it is. not supported by any tangible evidence. Therefore, they vehemently argued that the contention of the complainant that P.W.2 had only a vague information regarding narcotic drug business conducted by the accused which need not be recorded under law, is not sustainable. 9. It is well settled that any vague information regarding the commission of offence need not be recorded under Sec.42 of the Act. But in this case it is clear from the documentary evidence as well as the oral evidence of P. W.2 and P.W.1 that P.W.2 had only vague information regarding narcotic drug business alleged to have been conducted by the accused and it is only by the intelligence work of P.W.2 and others that they gathered the information that business in narcotic drugs is being conducted by the accused from the house of the 2nd accused before they left Ernakulam for Thalassery on-4.3.1994. Therefore, the non-compliance of the mandatory provisions of Sec.42 of the Act is not at all fatal in this case and the lower court has rightly held so. 10. Therefore, the non-compliance of the mandatory provisions of Sec.42 of the Act is not at all fatal in this case and the lower court has rightly held so. 10. The Special Public Prosecutor argued that P.W.2 is an empowered officer under Sec.41 of the Act and he has authorised P. W. 1 to conduct the search under Sec.41 (2) of the Act. Therefore, according to him, as P.Ws.1 and 2 were not acting under Sec.42(1) of the Act and P.W.1 conducted the search as authorised by P.W.2 under Sec.41(2) of the Act, there is no violation Sec.42 of the Act. But it is pertinent to note that under Sec.41(2) as went as Sec.42(1) of the Act, the authorised officer has to record the information received by him from any person regarding commission of offence punishable under Chapter IV of the Act either for authorising any other officer to conduct the search under Sec.41 (2) or for conducting search without warrant under Sec.42(1) of the Act. Therefore, the contention of the complainant that since the search was conducted on basis of the warrant issued by P.W.2, empowered officer under Sec.41 (2) of the Act, there is no violation of Sec.42(1) of the Act, is not sustainable. 11. The accused have contended that the mandatory provisions of Sec.50 of the Act are not complied with. But according to the complainant, since the article was seized not during search of the body of the 1st accused but while searching the residence of the 2nd accused, there is no question of compliance. Sec.50 of the Act. Sec.50 of the Act deals with search of any person under the provisions of the Act and lays down that if the person so desired the search should be done in the presence of a Gazetted Officer of any of the departments mentioned in Sec.42 or the nearest Magistrate. Counsel for the accused submitted that it is clear from the complaint as well as the evidence of P.Ws.1 and 2 that during search the first accused was found carrying one brown coloured rexin bag containing brown sugar packed in polythene packet, and therefore, it is clear that the alleged brown sugar packed in polythene packet, is recovered by search of the body of the first accused. It is not specifically stated in the complaint that the polythene packet containing brown sugar was recovered from the first accused by search of his person or the premises. On the other hand, the evidence of P.Ws.1 and 2 is to the effect that during search of the house of the 2nd accused the first accused was found in possession of the rexin bag containing the contraband article in a room inside the house and he handed it over to P.Ws.1 and 2 at the time of search stating that it contained brown sugar. Therefore, the contention of the accused that brown sugar was seized from the first accused on search of his body and therefore, the compliance of the provisions of Sec.50 of the Act is mandatory, is not sustainable, as it is clear from the evidence on record that the contraband article was seized by search of the premises and not by the search of the body of the first accused. 12. The contention of the accused is that there is violation of Sec.57 of the Act, since P.W.2 has not sent a report of all the particulars regarding the arrest of the accused and seizure of the contraband articles to his immediate official superior within 48 hours of the arrest and seizure of the article. It is well settled by the decision of the Supreme Court reported in State of Punjab v. Balbir Singh State of Punjab v. Balbir Singh A.I.R. 1994 S.C. 1872 that the provisions of Secs.52 and 57 which deal with the steps to be taken by the officers after effecting arrest or seizure under Secs.41 to 44 are by themselves not mandatory. If there is noncompliance or if there are lapses like delay etc, then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest of seizure as well as on merits of the case, In this case, the accused had no contention that due to the non-compliance of the provisions of Sec.57 of the Act any prejudice is caused to them. Therefore, the provisions of Sec.57 of the Act being not mandatory, the non-compliance of the same is not at all material in this case. 13. Therefore, the provisions of Sec.57 of the Act being not mandatory, the non-compliance of the same is not at all material in this case. 13. After examination of the witnesses, P.Ws.1 and 2 were recalled and examined on 16.3.1995 and the prosecution produced Ex.P-30 alleging to be the copy of Form sent by P.W.2 to the official superior regarding seizure of the contraband and the arrest of the accused in this case. Though the accused have contended that the prosecution has concocted Ex.P-30 in order to make it appear that they have complied with the provisions of Sec.57 of the Act, I find nothing to suspect the genuineness of Ex.P-30. Therefore, the production of Ex.P-30 establishes the compliance of the provisions of Sec.57 of the Act by the prosecution in this case. 14. Even though the lower court accepted the contention of the complainant that brown sugar was sized from the first accused from the residence of the second accused 6.3.1994 at about 10 a.m the further contention of the complainant that as a follow up action on the very same day another packet of brown sugar weighing 251 grams was seized from the house of the first accused at Pinarayi at about 7 p.m is negatived by the lower court. The lower court has given various reasons to disbelieve the contention of the complainant regarding the second seizure of brown sugar from the house of the first accused. The Special Public Prosecutor argued that when P.Ws.1 and 2 questioned the accused under Sec.67 of the Act, they felt that some more contraband articles could be seized and therefore, the search of the house of the first accused was conducted and recovered the packet of 251 gram of brown sugar from his residence at Pinarayi. According to him, Sec.67 is an independent procedural provision provided under the Act and, therefore, the recovery of the article from the residence of the first accused subsequent to the first recovery has to be accepted. The witnesses who have been examined to prove the search and seizure of the contraband articles from the residence of the first accused have turned hostile and deposed that they have no witnessed the actual search and seizure of the contraband article from inside the house of the first accused. The witnesses who have been examined to prove the search and seizure of the contraband articles from the residence of the first accused have turned hostile and deposed that they have no witnessed the actual search and seizure of the contraband article from inside the house of the first accused. It is not stated in Ex.P-2 mahazar for the recovery of the second packet of contraband article from the house of the first accused that the search was conducted and the article was seized as stated by the first accused when questioned as provided in Sec.67 of the Act. It is also pertinent to note that P.Ws.1 and 2 have stated in Ex.P-1 seizure mahazar, for the seizure of the contraband articles from the residence of the second accused at 10 a.m that they offered themselves for search before witnesses before conducing search in the house. P.Ws.1 and 2 have no case that they themselves offered for search in the house. P.Ws.1 and 2 have no case that they themselves offered for search before conducting search in the residence of the first accused at about 7 p.m. on that day just as done by them before the search in the house of the second accused in the morning. Even according to the prosecution, at the time of the search of the house of the 1st accused he was not present and the packet of brown sugar weighing 250 gms. was seized from his bed-room. It is the case of the prosecution that Anitha, sister of the 1st accused informed P.Ws.1 and 2 that the room from which the contraband article was seized in the bed-room of the 1st accused. Even according to the prosecution, several persons are residing in that house at Pinarayi. Though the rexin bag in which the 1st accused is alleged to have possessed brown sugar in the house of the 2nd accused while it was searched on that day at 10 a.m. is also seized by P.Ws.1 and 2, the suitcase in which the brown sugar was alleged to have kept in the bedroom of the 1st accused is not seized by P.Ws.1 and 2 when the brown sugar was seized in the evening at 7 p.m. AH these facts made, the search and seizure of the contraband article from the house of the first accused in the evening, not above board. The lower court rightly rejected the subsequent search and seizure of the contraband article from the residence of the first accused. The arguments and advanced by the Special Public Prosecutor against the rejection of the second seizure of the contraband article from the residence of the first accused at Pinarayi are of no substance. 15. It is the case of the prosecution that this is a case of conspiracy between the accused to deal with Narcotic Drugs and not a mere case of seizure of Narcotic Drugs from one of the accused. The Special Public Prosecutor submitted that since accused 1 to 3 were found in the house of the second accused engaged in transaction of the contraband article,. brown sugar, all of them are guilty of the offences alleged against them. According to the prosecution when P.Ws.1 and 2 reached the house of the second accused and knocked at the door, the second accused opened the door and came out and when they entered the house they found accused 1 and 3 inside a room in the house and the 1st accused possessed the seized contraband article in a rexin bag. The second accused is one of the occupants of the house and that fact is proved by Ex.P-23 which is the extract of the voters’ list relating to the inmates of the house. Ex.P-23 shows that there are 11 persons who are enrolled as voters in the house including the 2nd accused. P.Ws.1 and 2 have deposed that there were other occupants in the house at the time of search. It is clear from the evidence of P.Ws.1 and 2 that the second accused came out of the house and opened the door when they knocked at the door of the house. The accused contended that there is nothing in record to show that all the three accused were engaged in the transaction of brown sugar as alleged by the prosecution. It is proved that accused 1 to 3 were present in the house of the 2nd accused at the time of search, but there is no direct evidence on record to establish that the second accused along with accused 1 and 3 were engaged in the transaction in brown sugar at that time. It is in evidence that the first accused is a businessman paying income tax. It is in evidence that the first accused is a businessman paying income tax. Therefore, the accused contended that due to the mere presence of accused 1 and 3 in the house of the second accused it cannot be presumed that all the accused were dealing in narcotic drug at the time of of the search. 16. The Special Public Prosecutor submitted that accused 1 to 3 belong to different places and no explanation is offered by them as to why they were present in the house of the second accused at the time of the search and seizure. The contention of the accused that the mere presence of accused 2 and 3 in the house while the first accused was in possession of brown sugar is insufficient to implicate them in the very grave offence of this nature is not sustainable in view of the presumption of culpable mental state under Sec.35 of the Act and the presumption regarding the possession of contraband article under Sec.54 of the Act available against them and the accused have not succeeded in rebutting those presumptions. It is cleai from the contentions raised by the accused that they have admitted their presence in the Alankar Manzil at the time of seizure of the contraband article. According to the 1st accused he was called to that house to witness the search. The case of the 2nd accused is that he went there along with the customs officials as the informer for seizure of the contraband article. The 3rd accused contended that he was taken from Eranakulam to make him a witness in the alleged seizure of the contraband article. I have already negatived the contention of the 1st accused that as there was dispute between him and the customs officials with regard to the quantity of the contraband article seized, as according to him though 500 gms. of brown sugar was seized from the house of the 2nd accused. P.Ws.1 and 2 only recorded seizure of 250 grms, he was falsely implicated in this case is also negatived by me. of brown sugar was seized from the house of the 2nd accused. P.Ws.1 and 2 only recorded seizure of 250 grms, he was falsely implicated in this case is also negatived by me. Therefore, from the evidence on record it is established that accused 1 to 3 who belong to different places were present in the Alankar Manzil at the time of search and seizure of the contraband article by P.Ws.1 and 2 from the 1st accused from inside a room therein, and they have not properly explained their presence in the room in the house of the 2nd accused. Therefore, their unexplained presence together in the room in the house when the contraband article was seized from the 1st accused can only be in the process of either sale or purchases of the brown sugar on the basis of the prearranged plan. 17. The Special Public Prosecutor argued that the statements, Exs.P-7 to P-9 given by the accused can be relied upon to enter the finding of guilt against all the accused. He also argued that direct evidence is not necessary and circumstantial evidence is sufficient to find the accused guilty. In the decision reported in Ahamed Koya v. State of Kerala Ahamed Koya v. State of Kerala [1990] 2 K.L.T. 405 a single Judge of this Court has held that if the extrajudicial confession is voluntary and proved, it can certainly constitute the basis of a conviction. It is also held in the same decision that the officer entrusted with the powers under Sec.53 of the N.D.P.S. Act are not police officers within the meaning of Sec.25 of the Evidence Act and confession before such officer is not only hit by Sec.25 of the Evidence Act. The Special Public Prosecutor argued that under the provisions of Sec.67 of the Act the empowered officer is entitled to record the statements given by the accused at the stage of enquiry and the same can be used as evidence against the accused. The Special Public Prosecutor argued that under the provisions of Sec.67 of the Act the empowered officer is entitled to record the statements given by the accused at the stage of enquiry and the same can be used as evidence against the accused. According to the prosecution, the statements of the accused were recorded in this case before thee were arrested and made accused in this case, though they were in custody after the seizure of the contraband articles at about 10 a.m. The accused have contended that the statement Exs.P-7 to P-9 alleged to have recorded from the accused in this case are not voluntary, but they were extracted by force, threat and inducement and they have retracted those statements through the Superintendent of the Jail after they were remanded to custody. They also contended that the statement of the accused were not recorded immediately after the alleged detection of the offence after seizure of the contraband articles at about 10 a.m. and they were detained and harassed to force them to give the statements as desired by P.Ws.1 and 2, Accused also contended that there is nothing on record to show that the accused were alerted of the consequences of the statements. It is clear from the evidence of P.Ws.1 and 2 that apart from stating that they have recorded, the voluntary statements given by the accused, they have no case that they were informed of the consequences of the statements made by them. But Sec.67 of the Act does not mandate that the accused should be informed of the consequences of making the statements under that provision. 18. Even Though the accused have contanted that Exs.P-7 to 8-9 statements were recorded by P.Ws 5 and 2 from theirs by coercion, threat and force and by manhandling them, when they were produced before the Judicial First Class Magistrate on 28.2.1995, they have not made any allegation of threat, coercion or manhandling in order to extract Exs.P-7 to P-9 confession statements from them. Therefore, the contention of the accused that the confession statements Exs.P-7 to P-9 were recorded from them by P.Ws.1 and 2 by threat, coercion, force and manhandling them, is not sustainable. 19. Therefore, the contention of the accused that the confession statements Exs.P-7 to P-9 were recorded from them by P.Ws.1 and 2 by threat, coercion, force and manhandling them, is not sustainable. 19. It is pertinent to note that the case of the first accused is that he informed about the transaction in narcotic drugs from the house of the 2nd accused and the contraband article seized accordingly was of large quantity viz., 500 gms, and the Customs Officers recorded seizure of only a very small quantity of 251 gms and there was dispute between recording the seizure of the enure quantity of 500 gms. of brown sugar as he apprehended that the remuneration for giving the information payable to him will be reduced on recording seizure of the small quantity of the contraband article. According to him, the dispute between himself and the Customs Officers regarding the quantity of seized contraband articles is the reason for implicating him in this case. The Special Public Prosecutor submitted that this contention of the first accused that he informed about the transaction in brown sugar was seized from the accused and the other evidence and circumstances available in this case. Apart from the allegation that the first accused was the informer regarding the transaction in Narcotic Drug and the seizure involved in this case and the dispute regarding quantity of contraband article seized noted by the Excise Official is the reason for implication him in this case, there is nothing on record to substantiate that contention. Therefore, this contention of the first accused cannot be countenanced. 20. It is suggested to P.Ws.1 and 2 during cross examination on behalf of the 2nd accused that as the 2nd accused did not consent to be a witness in a case involving confiscation of brown sugar by stating that he is not prepared to be a witness in respect of a matter which he has not seen P.Ws.1 and 2 threatened him and manhandled him and due to the fear that he will take action against P.Ws.1 and 2, they recorderd the alleged statement after 12 midnight. That suggestion is denied by P.Ws.1. and 2. There is absolutely nothing on record in support of that suggestion put on behalf of the 2nd accused to P.Ws.1 and 2 in cross-examination. 21. That suggestion is denied by P.Ws.1. and 2. There is absolutely nothing on record in support of that suggestion put on behalf of the 2nd accused to P.Ws.1 and 2 in cross-examination. 21. It is also suggested to P.W.2 when cross-examined on behalf of the 3rd accused that the 3rd accused who admittedly belongs to Ernakulam was taken by P.Ws.1 and 2 along with them and when the 3rd accused refused to be a witness in this case, Ex.P-9 statement is created by P.Ws.1 and 2 and that suggestion is denied by P.W.2. Apart from the fact that the 3rd accused is a fish vendor in Ernakulam, there is nothing on record to show that he was taken by P.Ws.1 and 2 along with them from Ernakulam to Thalassery and Ex.P-9 statement is created when he refused to be a witness in this case, as contended by the 3rd accused. Therefore, this contention of the 3rd accused is also unfounded. 22. It is vehemently contended by the counsel for the accused that the inordinate delay in recording Exs.P-7 to P-9 statements from the accused after they were taken into custody by about 10 a.m. til¡ later in that night establish that Exs.P-7 to P-9 are not the voluntary statements given by the accused and they are created by P.Ws.1 and 2 fay threat and force and detaining them in custody. It is true that there is some delay in recording the statements Exs.P-7 to P-9 in this case since they are recorded after 10 p.m. though they were takes¡ into custody at about 10 a m. on that day. P.Ws.1 and 2 have deposed that at the. time the accused were taker; into custody they were intending to record the statements of the accused under Sec.67 of the Act. But according to them as it was disclosed when the 1st accused was questioned that some more contraband article is available for seizure in the house of the 1st accused and the house of the 1st accused could be searched only in the evening and the contraband article could be seized only at 7 p.m., the delay in recording Exs.P-7 to P9 statements of the accused was caused in this case. There is evidence on record to show that the house of the 1st accused at Pinarayi was searched by P.Ws.1 and 2 themselves in that evening though the seizure of the contraband article from the house of the 1st accused was not accepted by the lower court as well as this court due to the infirmities in the search and seizure. Therefore, the delay in recording Exs.P-7 to P-9 statements from the accused in this case is properly explained by the prosecution and hence the delay in recording Exs.P-7 to P-9 in this case is of no significance. Therefore, this contention of the accused is also not sustainable. 23. Apart from alleging that the accused were falsely implicated in this case by the Customs Officials absolutely nothing is alleged by the accused against P.Ws.1 and 2 or any other Customs Officials to implicate them falsely in such a very grave offence. Absolutely no ill will or animosity is alleged against P.Ws.1 and 2 by the accused. It is clear from the evidence on record that the statements Exs.P-7 to P-9 are recorded by P.Ws.1 and 2 from the accused voluntarily without any threat or inducement and those statements are not tainted in any manner. Therefore, there is nothing on record against the acceptance of Exs.P-7 to P-9 statements given by the accused before P.W.2 after the seizure of the contraband articles and before they were arrested and made accused in this case. Therefore, the lower court is not justified in discarding Exs.P-7 to P-9 statements given by the accused in this case. 24. It is seen that in this case the accused are charged for the offences punishable under Secs.28 and 29(1) of the N.D.P.S. Act along with Sec.2 of the Act. Sec.28 deals with punishment for attempt to commit offences under the Act and Sec.29 deals with punishment for abatement and criminal conspiracy. As already noted, the definite case of the prosecution is that the accused were engaged in a criminal conspiracy for sale in brown sugar and the 1st accused was in possession of brown sugar at the time of seizure in pursuance of the conspiracy. Conspiracy can be proved either by direct of by circumstantial evidence. As already noted, the definite case of the prosecution is that the accused were engaged in a criminal conspiracy for sale in brown sugar and the 1st accused was in possession of brown sugar at the time of seizure in pursuance of the conspiracy. Conspiracy can be proved either by direct of by circumstantial evidence. Ft has to be remembered that conspiracy by its very nature is hatched out in secrecy and it will be very difficult though not impossible to adduce of agency and if the conditions laid down in that section are satisfied, the act done by one of the conspirators is admissible in evidence against the co-conspirators. But the provisions of Sec.10 of the Evidence Act will come into play only when the court is satisfied that there is satisfactory evidence or reasonable ground to believe that the accused have conspired together to commit an offence or an actionable wrong. There should be prima facie evidence to establish that a person was party to the conspiracy before his acts can be used against the co-inspirators. 25. In this case there is sufficient and satisfactory material on record to establish that all the three accused entered into a conspiracy for sale of brown sugar and they were in fact, in the process of sale or purchase of brown sugar from the house of the 2nd accused at the time of seizure of the contraband article. Therefore, Exs.P-7 to P-9 statements given by the accused in this as can be accepted in evidence as against the co-accused. Likewise, the seizure of the contraband article from the 1st accused from a room inside the house of the 2nd accused while accused 2 and 3 were present in the house, also can be treated as evidence against accused 2 and 3. 26. It is clear from my foregoing discussions that the prosecution has satisfactorily established beyond reasonable doubt that all the three accused have committed the offences alleged against them. Therefore, the lower court though found that the 1st accused was guilty of the offence punishable under Sec.21 of the N.D.P.S. Act, was in manifest error in finding that accused 2 and 3 were not guilty of any of the offences alleged against them and acquitting them and setting them at liberty. Therefore, the lower court though found that the 1st accused was guilty of the offence punishable under Sec.21 of the N.D.P.S. Act, was in manifest error in finding that accused 2 and 3 were not guilty of any of the offences alleged against them and acquitting them and setting them at liberty. Therefore, while confirming the finding of guilt entered by the lower court against the 1st accused under Sec.2l of the N.D.P.S. Act, the further finding of the lower court that accused 2 and 3 are not guilty of any of the offences alleged against them, has to be reversed. Hence in reversal of the finding of the lower court the accused 2 and 3 are also found guilty of the offence punishable under Sec.21 of the N.D.P.S. Act and all the accused are found guilty of the offence punishable under Sec.29(1) of the N.D.P.S. Act. 27. The lower court has awarded sentence of rigorous imprisonment for 10 years and fine of Rs.1 lakh in default of payment of fine to undergo rigorous imprisonment for three years to the 1st accused. Considering the nature and gravity of the offence committed by the accused, 1 find the sentence awarded by the lower court for the offence punishable under Sec.21 of the N.D.P.S. Act is appropriate and 1 find no separate sentence need be imposed for the offence punishable under Sec.29(1) of the N.D.P.S Act in this case. Hence while confirming the sentence awarded to the 1st accused by the lower court, accused 2 and 3 are convicted and sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of Rs.1 lakh each in default of payment to undergo rigorous imprisonment for three years. No separate sentence is awarded for the offence punishable under Sec.29(1) of the N.D.P.S. Act. Accordingly Crl.App.No.497of 1995 is dismissed and 755 of 1995 is allowed.