Judgment 1. It is alleged by the prosecution that A-1, A-2, A-5 and A-6 were regular dealers in Narcotic Drugs and that one month prior to 28.4.1995 at the instigation of third accused, second accused requested the first accused and fifth accused to receive five kilograms of heroin and that accused 1, 5 and 6 conspired together and got 3 kgs, 1 kg, 1 kg respectively from their friends and that they transported the same from Madhya Pradesh in Lorry No.143237 and that the said quantity of heroin was delivered to third accused by first accused in the presence of second accused at the residence of the second accused and that the third accused kept the same at the house of the fourth accused for safe custody and that the said heroin was seized from the house of fourth accused on 28.4.1995 and that accused 1 to 4 were arrested on 28.4.1995 and accused 5 and 6 were arrested on 30.5.1995 and that therefore, accused 1 to 6 were liable to be punished under Sec.8 (c) read with Secs.21, 27A and 29 of the N.D.P.S. Act read with Sec. 120(b) of the Indian Penal Code. When the charges were explained and readover to the accused, the accused denied the same. 2. The prosecution has examined P.Ws.1 to 10 and marked Exs.P-1 to P-25 and M.Os. 1 to 16. 3. The case of the prosecution as disclosed from the above evidence is as follows: Accused J and 5 are residents of Madhya Pradesh. The sixth accused is the resident of Rajasthan. Accused 2 to 4 are the residents of Tiruchirapalli. The 5th accused is the resident of Rajasthan. The second accused was acting as broker for the transaction. One month prior to 28.4.1995, the third accused requested the second accused to receive the drug and second accused inturn conveyed the same to first accused and fifth’ accused and they discussed the business dealings and after such discussion, accused 1, 5 and 6 contributed 3 kgs, 1 kg and 1 kg for the business transaction. After securing the above required quantity, accused 1 and 6 and another person namely Sivalal transported 5 kgs of heroin in a lorry from Madhya Pradesh to Trichy on 15.4.1995. In the meantime, the fifth accused left Bavani Mandiram, Madhya Pradesh to Trichy by train and actually reached Trichy on 17.4.1995. After securing the above required quantity, accused 1 and 6 and another person namely Sivalal transported 5 kgs of heroin in a lorry from Madhya Pradesh to Trichy on 15.4.1995. In the meantime, the fifth accused left Bavani Mandiram, Madhya Pradesh to Trichy by train and actually reached Trichy on 17.4.1995. The fifth accused stayed at the second accused house till 21.4.1995 and informed the second accused about the transit of heroin through the lorry. In the meantime, accused 1 and 6 came to the house of second accused on 21.4.1995 and delivered the same to third accused. The third accused promised to pay the sale price after disposal. Accused 1, 5 and 6 left for Rameswaram and returned back to Madurai and stayed in a lodge. On 26.4.1995, Accused 1 and 5 left tor Trichy to collect money from the third accused. It was found at that time that the alleged contraband was not disposed of by the third accused. Therefore, the fifth accused left for Madurai requesting the first accused to stay back at Trichy and return back to Madurai either with money or contraband by 28.4.1995. In the meantime, the third accused handedover the contraband to fourth accused for safe custody. The 4th accused came to know about the nature of the contraband give to him by the third accused and asked him to take it back. But the third accused requested the fourth accused to keep it for sometime till he finalised the dealings. Therefore, the fourth accused agreed to keep the contraband at the request of the third accused. 4. While the matters thus stood, P.W. 1 who is Superintendent of Trichy Customs received information on 27.4.1995 that the accused conspired together and transported Narcotic Drug and that the same was concealed in the house of fourth accused. He recorded the said information in their office under Ex.P-1. As per the orders of the Assistant Commissioner, P.Ws.1, 2 and others went to the house of second accused which is situate in Trichy -Thanjavur road. The second accused was present there along with his son-in-law Jamal Mohammed. When P.W.1 enquired second accused about the possession of contraband, he gave reply in negative and he also expressed his willingness for searching his house. Thereupon, P.W.1 in the presence of mahazar witnesses searched the house. But no contraband was found. The second accused was present there along with his son-in-law Jamal Mohammed. When P.W.1 enquired second accused about the possession of contraband, he gave reply in negative and he also expressed his willingness for searching his house. Thereupon, P.W.1 in the presence of mahazar witnesses searched the house. But no contraband was found. Therefore, they prepared mahazar and the said mahazar was prepared by Inspector Chandrasekaran. Ex.P-2 is the said mahazar. 5. After completion of search at the house of second accused, P.Ws.1 and others came out of the house and at that time, they saw the first accused coming opposite to the house of second accused. He was enquired by P.W.1. But the 1st accused gave answers in Hindi. Thereupon, accused 1 and 2 were taken to the house of third accused, and the said house was identified by second accused. The third accused was present in the said house. At that time, the Assistant Collector also came there. They enquired the third accused and asked him to identify the house of fourth accused and thereupon, they went to the house of the fourth accused. The third accused took P.W.1 and accused 1 and 2 to the house bearing D.No.28, Ganapathy Nagar, Oyyakondan. At that time, the fourth accused was present with family members. The fourth accused was sitting below the roof shed. There is a compound wall around his house. P.W.1 enquired the fourth accused as to whether he was in possession of any contraband. In the presence of P.W.6 and mahazar witnesses, the house was searched and at that time, they noted a green colour bag on the tinshed above the window, and it was found that three packets were wrapped by insulation tapes. They found brown colour powder in the said pack. When fourth accused was enquired about the name, he has admitted that the third accused handedover the same for safe custody. Thereupon, a mahazar was prepared under Ex.P-3. Accused 3 and 4 and Assistant Collector signed in the mahazar. 6. P.W.I marked 5 packets as M.Os.l to 5, MO.6 is the rexin bag. Thereafter, the Assistant Collector, P.W. 1 and other officials went to the house of third accused. When they searched the house, no contraband was found and accordingly mahazar Ex.P-4 was prepared, in which P.W.3 has attested. The above mahazar is attested by A-3 and his wife also. P.W.I marked 5 packets as M.Os.l to 5, MO.6 is the rexin bag. Thereafter, the Assistant Collector, P.W. 1 and other officials went to the house of third accused. When they searched the house, no contraband was found and accordingly mahazar Ex.P-4 was prepared, in which P.W.3 has attested. The above mahazar is attested by A-3 and his wife also. After completion of the above process, P.W. 1 and officials and accused 1 to 4 returned to office. In the presence of mahazar witnesses and accused, P.W. 1 took 5 gms from each packet for samples. The contraband was weighed 5.120 Kgs. The samples were put in separate packets and wrapped up the same with thread and they also affixed seal on the top of packet. The signature of the accused were also obtained thereon. On 2.5.1995, they sent the samples to chemical examiner. 7. On 28.4.1995, accused 1 to 4 were examined under Sec.67 (c) of N.D.P.S. Act. Second accused gave statement under Ex.P-7. Ex.P-8 is the statement given by the third accused. The accused also gave additional statement under Ex.P-9. On the same day, P.W.7 examined the first accused. Since he knows only Hindi, the statement given by first accused was recorded in Hindi by P.W7. Ex.P-10 is the said statement. The fourth accused was examined by P.W.3. Ex.P-11 is the statement given by fourth accused. Thereafter, at about 11.00 p.m. accused 1 to 4 were arrested. Ex.P-12 is the arrest memo. P.W. 1 also prepared detailed report under Ex.P-13 and sent the same to his superior officer. He also produced 10 packets of contraband before the Court and he got return of the same as per the orders of the Court and subsequently, P.W.2 entrusted the same with the godown officer under Ex.P-14. 8. On examining accused 1 to 4, P.W. 1 came to know that two more accused were involved in this case. Thereafter, on 1.5.1995, accused 5 and 6 were arrested at Trichy. The said accused were examined by P.W.7. The statement given by fifth accused is Ex.P-15 and Ex.P-16 is the translation of the said statement. Ex.P-17 is the statement given by the sixth accused and Ex.P-18 is the translation copy of the same. On 30.4.1985, accused 5 and 6 were arrested, Ex.P-19 is the arrest card. P.W. 1 also sent report under Sec.57 of the Act to superior officer. Ex.P-17 is the statement given by the sixth accused and Ex.P-18 is the translation copy of the same. On 30.4.1985, accused 5 and 6 were arrested, Ex.P-19 is the arrest card. P.W. 1 also sent report under Sec.57 of the Act to superior officer. Ex.P-20 is the said report. 9. P.W.8 was Chemical Examiner in Customs House, Madras. He received requisition on 2.5.1995 from Assistant Commissioner for examining the narcotic drug. Ex.P-25 is the covering letter and alongwith the same, test memo and five samples were sent. P.W.8 received the same under Ex.P-25. He also compared the seals with test memo seal and found that both seals tally with each other. On testing the samples, it was found that the contraband is heroin and thereupon, he sent interim report under Ex.P-21. On 9.6.1995 they sent final report under Ex.P-22. P.W.9 the chemical examiner verified the report given by P.W.8 and gave his opinion under Ex.P-32. P.W.10 the chemical examiner also signed in the report Ex.P-21. 10. On receiving the above report, P.W.1 filed complaint against all the accused on 22.6.1995. 11. The incriminating materials appearing against the accused were explained to them and the accused denied the said evidence. 12. On a consideration of oral and documentary evidence, the trial Judge found accused guilty under Sec.8(c), Secs.21, 29 of the Act read with 120 (b) of the Indian Penal Code. The fourth accused was sentenced to undergo Rigorous Imprisonment for 10 years and pay a fine of Rs.one lakh and accused 1, 3, 5 and 6 were sentenced to undergo Rigorous Imprisonment for 10 years and pay a fine of Rs.Two lakhs. The fourth accused was acquitted of the charge under Secs.27(A), 29 and 120 (b) of the Indian Penal Code. Similarly, accused 1, 3, 5 and 6 were also acquitted of the charges under Sec.27-A of the Act. Aggrieved on the said conviction and sentence, the accused have preferred this appeal. The second accused died on 10.4.1996. 13. The following contentions are raised in this appeal: The trial Judge failed to see that the recovery is not at all established since none of the mahazar witnesses were examined. The accused did not admit anything and therefore, the burden is upon the prosecution to prove the charges. The trial Court ought to have held that there was no conscious possession. The accused did not admit anything and therefore, the burden is upon the prosecution to prove the charges. The trial Court ought to have held that there was no conscious possession. The trial Court should not have accepted the statements of accused 3,4 and Exs.P-8 and P-9. The trial Court failed to note that the statements were also retracted. The trial Court erred in placing reliance upon the statement given by the accused under Sec.313, Crl.P.C. The trial Court erred in holding that the bail application should contain materials about the statements given by the accused. The evidence of P.W.6 is totally unworthy of any acceptance. The trial Court failed to note the weighment of goods after seizure. The contraband was not dealt with in the manner required under Sec.55 of the Act. The contraband was not seized by the Station House Officer. The trial Court failed to note that the goods were not dealt with in the manner required under Sec.52 (A) of the Act. There is no evidence to prove that the goods recovered in this case alone were sent for chemical examination. The trial Court failed to see that Sec.42 of the Act was not complied with. Information has not been recorded under Sec.41 (2) of the Act. The trial court failed to note that Sec.57 of the Act was not complied with. The trial Court failed to see that first accused does not know Tamil or English and therefore, the proceedings ought to have been conducted in Hindi language. There was not even a translation and therefore, the entire trial is vitiated. There is no evidence to prove conspiracy. 14. The point for determination in this appeal is, whether the prosecution has established the charges levelled against the accused beyond reasonable doubte 15. Learned counsel for the appellant Thiru.B.Kumar raised several contentions regarding noncompliance of mandatory provisions of the Act and in addition to that, it is also contended by him that the filing of the complaint by P.W. 1 who himself recovered the contraband, prepared mahazar and conducted investigation is not in accordance with the law and that the person who’ records the information and recovered the contraband cannot investigate and that therefore, the entire investigation and trial are vitiated. Learned counsel for the appellant also pointed out that the charges framed by the Special Court are defective and that the accused were not confronted with the relevant portion of the evidence during 313 examination. 16. On the other hand, the learned counsel for the respondent Thiru.Prakash contended that the plea that the officer who registered the first information report should not conduct further investigation will not apply to this case, since the officials who conducted search and investigated the offence are non police officials and that therefore, the proceedings conducted by P.W. 1 cannot be said to be a investigation as defined under Sec.2(h) of Crl.P.C. He also contended that the revenue officials derive power under Secs.41, 42, 50 and 67 of the Act for collecting the evidence and that they do not file final report or chargesheet as contemplated under Sec.173, Crl.P.C. and that therefore, it cannot be said that the investigation and filing complaint by P.W.1 are vitiated. Both counsel rely upon a number of decisions on the above aspect of the case. 17. It is admitted by P.W.I that he was the investigating officer in this case and that he filed complaint before the Special Court. It is seen from the complaint filed before the Court that it was filed and signed by P.W.1. It is not in dispute that it is P.W. 1 who recovered the contraband from the house and prepared mahazar and directed other officials to examine the accused in his presence. It is established that it is P.W.1 who conducted the investigation and filed complaint. Learned counsel for the appellant relies upon certain decisions in support of his contention that the investigation conducted by P.W.1 is vitiated. 18. In Bhagwan Singh v. State of Rajas than Bhagwan Singh v. State of Rajas than , A.I.R. 1976 S.C. 985it is held that investigation by a Head Constable who washimself the person to whom bribe was alleged to have been offered and who lodged the first information report as informant is an infirmity which is bound to reflect on the credibility of the prosecution case. The above decision relates to the offence under Sec.165-A of the Indian Penal Code. 19. The above decision relates to the offence under Sec.165-A of the Indian Penal Code. 19. Another decision relied on by the appellant is reported in Megha Singh v. State of Haryana Megha Singh v. State of Haryana, A.I.R. 1995 S.C. 2339.In the above decision, it is held thus: “We have also noted another disturbing feature in this case. P.W.3 Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complaintant should not have proceeded with the investigation of the case. But, it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Sec.161, Crl.P.C, Such practice, to say the least, should not be resorted to so that there may not be be any occasion to suspect fair and impartial investigation.” The above case relates the offence falling under T.A.D.A. Act. 20. I had occasion to deal with similar case in Mani v. State Mani v. State, (1998)1 L. W. 85. The facts of the above case will show that the Inspector of Police, Law and Order and another Sub-Inspector on receipt of information searched the accused and recovered the heroin powder. The main contention urged in the above case was that P.W.5 was not competent to investigate the offence relating to Special Act under N.D.P.S. in view of G.O.No.1437 dated 24.9.1987. The above G.O. empowers the Deputy Superintendent of Police as officers to exercise powers under Sec.41(2) of the Act. Though the offence took place prior to coming into force of the above GO. on and from the commencement of the above G.O. P.W.5 could have entrusted the investigation to Superior Officer. For the above view, the decision reported in , 1989 L. W. (Crl.) 65 was relied on by me. Based on the facts of the above case, it has been held by me that P.W.5 was not competent to conduct investigation or file chargesheet as per the Government Order noted above and that only the Deputy Superintendent of Police alone is competent to file chargesheet by completing the remaining part of the investigation. Based on the facts of the above case, it has been held by me that P.W.5 was not competent to conduct investigation or file chargesheet as per the Government Order noted above and that only the Deputy Superintendent of Police alone is competent to file chargesheet by completing the remaining part of the investigation. The decision reported in Bhagwan Singh v. State of Rajasthan Bhagwan Singh v. State of Rajasthan, A.I.R. 1976 S.C. 985 referred to above was also relied upon by me in the above decision. Though, the above decisionwas referred to by me, it has been held that further investigation should have been entrusted to authorities contemplated under the Government Order and in the light of the above facts, it has been held that filing of chargesheet by P.W.5 and investigation is not in accordance with the procedure. Therefore, the above reported decision cannot be pressed into service in this case. In the above case, the investigation was conducted by the police officials. But, in this case, it is the Revenue Officials who conducted the search and investigated the offence. Therefore, the above reported decision cannot be applied to the facts of this case. 21. Nextly, learned counsel for the appellant relies upon a decision reported in Nathiya and another v. The State Nathiya and another v. The State, (1992)1 Crimes 537 . Learned counsel for the appellant strongly places reliance upon the above decision, since the above case directly relates to investigation conductedunder the provisions of the Act. In the above decision, the Rajasthan High Court has held thus: “To sustain conviction under Sec.20 of the Narcotic Drugs and Psychotropic Substance Act, 1985, justice and fair play require that the investigation should have been carried out by an independent officer who was not in any way a party to the recovery proceedings. ”The judgment of the Supreme Court reported in Bhagwan Singh v. State of Rajasthan Bhagwan Singh v. State of Rajasthan, A.I.R. 1976 S.C. 985is also relied upon by the Rajasthan High Court. Learned counsel for the appellant also relies upon a decision of Kerala High Court reported in Xavier v. State of Kerala Xavier v. State of Kerala , (1998)1 K.L.T. 686 . It has been held in the above decision that the investigation done by the police officials who himself is a complainant is not proper. Learned counsel for the appellant also relies upon a decision of Kerala High Court reported in Xavier v. State of Kerala Xavier v. State of Kerala , (1998)1 K.L.T. 686 . It has been held in the above decision that the investigation done by the police officials who himself is a complainant is not proper. The above case relates to Sec.51 of Kerala Police Act. The above case does not deal with the case relating to N.D.P.S. Act. Learned counsel for the respondent relies upon a decision reported in Deep Chand v. State of Rajasthan Deep Chand v. State of Rajasthan, (1996)3 Crimes 57 . In the above decision, the judgment of Rajasthan High Court reported in Nathiya and another v. The State Nathiya and another v. The State, (1992)1 Crimes 537 is also referred to. The Rajasthan High Court in the above decision negatived the contention that the empowered officer who conducted search, arrested the accused and lodged report is not entitled to carry on further investigation. The High Court in support of the above view, has relied upon the judgment of the Apex Court reported in State of Punjab v. Balbir Singh State of Punjab v. Balbir Singh, (1994)2 J.T. 108 . It has beenheld by the Apex Court that when the police officer carrying on the investigation including search, arrest empowered under the provisions of Crl.P.C. comes across a person being in possession of Narcotic Drug, then two aspects will arise and that if he happens to be one of those empowered officers under the Act, then he must follow the provisions of the Act and continue the investigation and that if on the other hand, he is not empowered then he must inform the empowered officer under the Act who should thereafter, proceed from that stage in accordance with the provisions of the Act. Relying upon the above decision, the Rajasthan High Court has held that it is only the empowered officer who can conduct investigation and that if any empowered officer comes across a person being in possession of Narcotic Drug and make search, he is to fully empowered to proceed with the in vestigation in that case. Relying upon the above decision, the Rajasthan High Court has held that it is only the empowered officer who can conduct investigation and that if any empowered officer comes across a person being in possession of Narcotic Drug and make search, he is to fully empowered to proceed with the in vestigation in that case. It is, thus, clear from the above decision that the judgment of the Rajasthan High Court reported in Nathiya and another v. The State has not been approved in the above latter decision Deep Chand v. State of Rajasthan. Therefore, in view of the judgment of the Apex Court and latest Rajasthan High Court judgments, the proposition of law laid down in Nathiya and another v. The State is no longer a good law. 22. As the powers of the empowered officer to search and conduct further investigation are clearly enunciated in, (1994)2 J.T. 108 , the decision reported in Bhagwan Singh v. State of Rajasthan Bhagwan Singh v. State of Rajasthan, A.I.R. 1976 S.C. 985 and Megha Singh v. State of Haryana Megha Singh v. State of Haryana, A.I.R. 1995 S.C. 2339 will not assist the contention of the appellants any way. 23. Learned counsel for the respondent contended that the officers who investigate the offence under the provisions of the Act, do not have powers to submit the report under Sec.173, Crl.P.C. and that therefore, they are not police officers within Sec.25 of the Evidence Act. In support of the same, he relies upon the decision reported in 1991 Crl.L.J. 97 (S.C.). Relying upon Sec.36 (A) of the Act, it has been held in the above decision that it is clear from the above section that if the investigation is conducted by the police, it would conclude in a police report and that if investigation is made by an officer of any other department, including D.R.I, the Special Court would take cognisance of the offence upon a formal complaint made by such authorised officer of the concerned Government and that such complaint would come under Sec. 190, Crl.P.C. Relying upon the above facts, the Supreme Court negatived the contention that the officer appointed under Sec.53 of the Act other than the police officer is entitled to exercise all the powers under Chapter 12 of the Code including the power to submit a report or charge sheet under Sec.173 of the Code. 24. 24. Repelling the above contention, learned counsel for the appellant relies upon a decision reported in Directorate of Enforcement v. Deepak Mahajan Directorate of Enforcement v. Deepak Mahajan, (1994) S.C.C. Crl. 785. The question that arose before the Apex Court was: “Whether a Magistrate before whom a person arrested under Sub-sec.(1) of Sec.35 of the Foreign Exchange Regulation Act of 1973 which is pari materia with Sub-sec.(1) of Sec.104 of the Customs Act of 1962 is produced under Sub-sec.(2) of Sec.35 of the Foreign Exchange Regulation Act, has jurisdiction to authorise detention of that person under Sec. 167(2) of the Code of Criminal Proceduree The Apex Court has held that it cannot be said that either the officer of enforcement or Customs officer is not empowered with the power of investigation though not with the power of filing final report as in the case of police officer. Regarding the investigation conducted under the provisions of Crl.P.C. as per Sec.4(2) of the Code, the Apex Court has held thus: “The combined operation of Secs.4(2) and 26(b) of the Code is that the offence complained of should be investigated or inquired into or tried according to the provisions of the Code where the enactment which creates the offence indicates no special procedure. Sec.4(2) read with Sec.26(b) of Crl.P.C. which governs every criminal proceeding as regards the course by which an offence is to be tried and as to the procedure to be followed, renders the provisions of the Code applicable in the field not covered by the provisions of the FERA or Customs Act.” Discussing the various provisions of special enactment the Apex Court has held that operates of Sec.4(2) of the Code is straightway attracted to the area of investigation, inquiry and trial of the offence under special laws including the FERA and Customs Act and consequently, Sec.167 of the Code can be made applicable during the investigation or enquiry of an offence under special Acts also. The powers and the duties of the empowered officer under the provisions of the Act are enunciated in the decision reported in 1991 Crl.L.J. 97. The judgment reported in Directorate of Enforcement v. Deepak Mahajan Directorate of Enforcement v. Deepak Mahajan, (1994) S.C.C. Crl.785 does not deal with the Special Powers of search and investigation conducted under the provisions of NDPS Act. 25. The judgment reported in Directorate of Enforcement v. Deepak Mahajan Directorate of Enforcement v. Deepak Mahajan, (1994) S.C.C. Crl.785 does not deal with the Special Powers of search and investigation conducted under the provisions of NDPS Act. 25. The decision reported in Directorate of Enforcement v. Deepak Mahajan Directorate of Enforcement v. Deepak Mahajan, (1994) S.C.C. Crl. 785 will not assist the case of the appellant, in view of the decision reported in 1991 Crl.L.J. 97 which directly deals with the powers of the empowered officer under the provisions of the Act. Even though, the revenue officials possess powers of police officer, their powers of search and investigation are regulated by the special provision contained in the Act. As per the dictum laid down in, (1994)2 J. T. 108, whenthe empowered officer on prior information conducted search and seized the contraband, he is under obligation to make further investigation inasmuch as the entire investigation has to be carried out by the empowered officer under the above Act, the fact that P.W. 1 recovered the contraband, prepared mahazar and examined the witnesses and filed complaint cannot be said to be vitiated by any illegality. For the reasons stated above I hold that the contention of the appellant that the procedure adopted by P.W.1 i.e., conducting investigation and filing complaint are vitiated by illegality cannot be accepted, I hold that under the provisions of N.D.P.S. Act, the officers who is empowered to conduct search is also entitled to make further investigation and complete the investigation in accordance with law and therefore, the fact that the complainant himself conducted investigation and examined the witnesses would not vitiate either the trial or investigation or conviction. 26. Learned counsel for the appellant raised another contention regarding framing of charges. Learned counsel for the appellant contended that the charges are defective. It is seen from the charges that all the charges under Secs. 8(c), 21, 27-A, 29 and 120-(B) of the Indian Penal Code are clubbed together. Separate charges are not framed against each of the accused. But the substance of the allegations contained in the com-, plaint are extracted in the charge. The plea of each of the accused has not been separately recorded. There is considerable force in the contention of the appellant on this aspect. Separate charges are not framed against each of the accused. But the substance of the allegations contained in the com-, plaint are extracted in the charge. The plea of each of the accused has not been separately recorded. There is considerable force in the contention of the appellant on this aspect. There can be no dispute that the charge under Sec.120 (b) of the Indian Penal Code should be framed separately against the accused. The charges under Secs.21, 27-A and 29 of the Act should have been framed separately against the concerned accused. Instead of following the above procedure, the trial Court has clubbed all the charges into one charge, which cannot be said to be in accordance with the procedure laid down under Crl.P.C. It is clear from Sec.218, Crl.P.C. that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately. Proviso to the above section states that where the accused person, by an application in writing, so desires and the Magistrate is of the opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person. Sec.212, Crl.P.C. states that the charge shall contain such particulars as to the time and place of the alleged offence. Under Sec.215, Crl.P.C. no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. In the instant case, though the charges are not framed properly, i.e., separate charges against each of the accused, it cannot be said that the entire trial is vitiated. On reading the charges, it is seen that the fact of conspiracy is alleged against the accused. The fact that the contraband was transported in the lorry is also mentioned. It is also stated that the contraband was transported from Madhya Pradesh. The above charges were explained to the accused before the commencement of the trial. The accused were explained as to what are the allegations levelled against them. The fact that the contraband was transported in the lorry is also mentioned. It is also stated that the contraband was transported from Madhya Pradesh. The above charges were explained to the accused before the commencement of the trial. The accused were explained as to what are the allegations levelled against them. In the above circumstances, it cannot be said that the accused were prejudiced by clubbing all the charges in one charge. 27. The attention of this Court has been drawn to Sec.464, Crl.P.C. The above section specifically states that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of arty error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. The above section empowers the Court to frame fresh charge and direct that the trial be recommenced, Sec.464(2) (b) states that in the case of an error, omission, the Court is empowered to direct new trial. The proviso to the above section states that if the Court is of the opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction. A combined reading of the above provisions will show that failure to frame distinct and separate charge against the concerned accused will not render the proceedings invalid in the absence of any prejudice to the accused. The allegations which are mentioned in the charge are conspiracy, and possession of contraband. As the charge memo, though defective in form, disclose the material facts, it cannot be said that the accused were prejudiced by framing such a joint charge. For the reasons stated above, I hold that though the charges are not in proper form, it will not be a valid ground for holding that the entire trial is vitiated. I hold that conviction cannot be set aside on that ground. 28. Nextly, it is contended by the learned counsel for the appellants that incriminating circumstances appearing against the accused were not put to them and that Sec.313, Crl.P.C. has not been followed in spirit. I hold that conviction cannot be set aside on that ground. 28. Nextly, it is contended by the learned counsel for the appellants that incriminating circumstances appearing against the accused were not put to them and that Sec.313, Crl.P.C. has not been followed in spirit. Learned Counsel for the appellants refers to certain questions and answers recorded during Sec.313, Crl.P.C. examination. The first accused was asked about the statement given by him under Ex.P-10 under Sec.67 of the Act. The accused has stated that his signature was obtained in the white paper. The contents of the statements were not specifically explained to the accused. Similarly, other accused were not explained about the contents found in the statement given under Sec.67 of the Act. It is seen that all the accused were asked questions with regard to statement given by them. Some of the accused have stated that they gave such statement. But, they deny that the above statements were given voluntarily. The sixth accused, when confronted with the statement given under Sec.67 of the Act, has stated he was assaulted. Now, the question is whether the failure on the part of the Court in not explaining the contents of the statements to the accused would vitiated the proceedings. Learned counsel for the appellant relies upon a decision reported in Megha Jesha v. State of Gujarat Megha Jesha v. State of Gujarat, A.I.R. 1979 S.C. 1566. wherein it is held that the prosecution cannot be permitted to rely on the circumstances in order to convict the accused when it was not put to the accused under Sec.313, Crl.P.C. It is seen from the facts of the case that the witness has stated that on personal search of the accused, the chandi was found which was blood stained and that the above statement was not put to the accused during Sec.313, Crl.P.C. examination. Relying upon the above fact, the Supreme Court has held that the prosecution cannot be permitted to rely on the above statement in order to convict the appellant particularly after the accused was acquitted by the trial Court. 29. Relying upon the above fact, the Supreme Court has held that the prosecution cannot be permitted to rely on the above statement in order to convict the appellant particularly after the accused was acquitted by the trial Court. 29. Learned counsel for the respondent relies upon a recent decision of the Supreme Court reported in Shobhit Chamar and another v. State of Bihar Shobhit Chamar and another v. State of Bihar, (1998)3 Supreme 112 whereinit is held thus: “We have perused all these reported decisions relied upon by the learned Advocates for the parties and we see no hesitation in concluding that the challenge to the conviction based on noncompliance of Sec.313, Crl.P.C. first time in this appeal cannot be entertained unless the appellants demonstrate that the prejudice has been caused to them. In the present case as indicated earlier, the prosecution strongly relied upon the ocular evidence of the eye witnesses and relevant questions with reference to this evidence were put to the appellants. If the evidence of these witnesses if found acceptable, the conviction can be sustained unless it is shown by the appellants that a prejudice has been caused to them. No such prejudice was demonstrated before us and, therefore, we are unable to accept the contention raised on before of the appellants.” It is, thus, seen that unless it is shown that prejudice has been caused to the accused, the non-explanation of certain circumstances in detail to the accused will not affect the proceedings. On reading the entire statement recorded under Sec.313, Criminal Procedure Code, it is seen that material circumstances appearing against the accused were explained to them. Even though, the contents of the statement recorded under Sec.67 of the Act were not explained in detail to each of the accused, it cannot be said that the trial is vitiated, inasmuch as the accused have stated that they gave statements under coercion and threat. In the above circumstances, the contention of the appellant that the proceedings and trial are vitiated for non-compliance of Sec.313, Criminal Procedure Code has got to be rejected. 30. It is, further, contended that the trial Court places much reliance upon the bail applications filed by the accused. The trial Court has observed that the accused has not denied the alleged seizure from the house of the fourth accused in the bail application. 30. It is, further, contended that the trial Court places much reliance upon the bail applications filed by the accused. The trial Court has observed that the accused has not denied the alleged seizure from the house of the fourth accused in the bail application. It is seen that the above bail applications were not marked as exhibits. The contents of the bail application were not explained to the accused during Sec.313, Crl.P.C. examination. As the above fact was not explained to the accused during Sec.313 Crl.P.C. examination, it is not open to the Court to base conclusion alleging that the accused have not stated certain material facts in the bail application. But, de hors the contents of the bail application, the trial Court has relied upon other evidence for convicting the accused. When there is other evidence for proving the guilt of the accused, the fact that the trial Court places reliance of bail applications which were not explained to the accused during Sec.313 Criminal Procedure Code, examination will not be a ground for holding that the entire proceedings are vitiated. It has to be observed at this stage that this Court will not place any reliance upon the non-mentioning of certain facts in the bail application in deciding the main issue involved in this appeal. For the reasons stated above, I hold that the failure on the part of the Court to explain the contents of the statements recorded under Sec.67 of the Act to the accused would not vitiate the proceedings and trial. The contention of the appellants on this aspect has got to be rejected. 31. One of the main grounds urged in this appeal is that the mandatory provisions of the Act were not complied with by the prosecution. It is in the evidence of P.W. 1 the Superintendent of Customs that the office received information wherein, it is stated that the accused transported heroin and that the same was concealed in the house of the fourth accused and that the same was recorded under Ex.P-1. Ex.P-1 will show that the above information was recorded at 4.00 p.m. on 27.4.1995. The names of the accused and the gift of information are stated in the above document. On the basis of the above information, P.W. 1 and other officials conducted search on 28.4.1995. Ex.P-1 will show that the above information was recorded at 4.00 p.m. on 27.4.1995. The names of the accused and the gift of information are stated in the above document. On the basis of the above information, P.W. 1 and other officials conducted search on 28.4.1995. Ex.P-1 will show that copy of the said information was also sent to Assistant Collector and other superior officers of P.W.1. In the decision reported in State of Punjab v. Balbir Singh State of Punjab v. Balbir Singh, AIR 1994 S.C. 1872 .It is held that under Sec.42(2) of the Act such empowered officer who takes down any information in writing or records the grounds under proviso to Sec.42(1) should forthwith send a copy thereof to his immediate superior and that if there is total non-compliance of this provision, the same affects the prosecution and to that extent it is mandatory. The evidence of P.W. 1 and Ex.P-1 will show that the mandatory of Sec.42(l) and (2) are complied with. 32. But, it is contended by the learned counsel for the Appellants that the above document was concocted for the purpose of the case. To substantiate the above plea the appellants rely upon the evidence of P.W.1. P.W.1 has admitted in cross examination that only after examining accused 1 to 4, he came to know that accused 5 and 6 were also involved in the offence. It is suggested to P.W.1 that Ex.P-1 was prepared later and filed into Court on 9.5.1995. Learned counsel for the appellant contended that when P.W.1 came to know about the involvement of accused 5 and 6 only after examining accused 1 to 4, it is un-understandable as to how the names of the accused 5 and 6 are mentioned in Ex.P-1. The evidence of P.W.1 that they came to know about the involvement of accused 5 and 6 after examining accused 1 to 4 would not necessarily lead to an inference that P.W. 1 did not receive information prior to 28.4.1995. In Ex.P-1, the fathers name of the accused are not stated. The Customs Officials would have received information about the names of the accused who were involved in transporting drugs from Rajasthan. In Ex.P-1, the fathers name of the accused are not stated. The Customs Officials would have received information about the names of the accused who were involved in transporting drugs from Rajasthan. The vague evidence of P.W. 1 as to when he came to know that accused 5 and 6 are connected with accused 1 to 4 cannot be taken into consideration for holding that Ex.P-1 was prepared subsequent to the date of arrest of the accused. Therefore, the contention of the appellants that Ex.P-1 was prepared for the purpose of the case cannot be accepted. I hold that Sec.42(l) and (2) of the Act are complied with by the prosecution. 33. The prosecution has also adduced evidence to prove that requirements contemplated under Sec.57 of the Act were complied with by the officials. 34. P.W. 1 has stated that after arresting accused 1 to 4 he prepared report under Ex.P-13. Under Sec.57 of the Act. In Ex.P-13, the report submitted to Assistant Collector, it is stated that the contrabanded was seized from the house of A-4 and that accused 1 to 4 were arrested for further action. Similarly, after arrest of accused 5 and 6, P.W.1 sent report under Ex.P-20. Learned counsel for the appellants contended that Exs.P-13 and P-20 do not disclose the facts which would come under detailed report mentioned under Sec.57 of the Act. No hard and fast rule can be laid down as to what is the detailed report that should be sent by the officer effecting the arrest and seizing the contraband. The fact that all the details are not stated in Exs.P-13 and P-20 will not affect the case of the prosecution any way. The facts that the contraband was seized and the accused were arrested and the date and time of the arrest are clearly mentioned in the above report. Therefore, the contention of the appellants that Exs.P-13 and P-20 cannot be said to be a report under Sec.57 of the Act has got to be rejected. 35. Learned counsel for the respondent contended that the provisions of Sec.57 of the Act are not mandatory. In support of the same, he also relies upon a decision reported in Balbir Singhs case. 35. Learned counsel for the respondent contended that the provisions of Sec.57 of the Act are not mandatory. In support of the same, he also relies upon a decision reported in Balbir Singhs case. In Balbir Singhs case, it is held that the provisions of Secs.52 and 57 of the Act are by themselves not mandatory, and that if there is non-compliance or if there are lapses like delay, the same has to be examined to see whether any prejudice has been caused to the accused. Ex.P-13 will show that the above report was sent on 28.4.1995 that is., within 48 hours of the arrest of the accused. Similarly, Ex.P-20 will show that the same was sent on 1.5.1995 i. e., on the date of arrest of accused 5 and 6. Therefore, it cannot be said that there is delay in submitting the report under Sec.57 of the Act. Learned counsel for the appellant relies upon a unreported decision of this Court in C.A.No.350 of 1990 dated 28.7.1997. This Court has held in the above case that the police officer who arrested the accused is bound to send full report to his superior officer within 48 hours and that the police officer failed to do so as required under Sec.57 of the Act, and that on this score alone, the trial is vitiated and that the accused must be acquitted. The attention of the learned Judge was not drawn to the dictum laid down by the Supreme Court in Balbir Singhs case, on the particular aspect. In view of the decision of the Supreme Court, the decision of this Court rendered in C.A.No.350 of 1990 will not assist the case of the appellant in any way. It is, further, seen that there is substantial compliance of Sec.57 of the Act by P.W.1. Therefore, I hold that the provisions of Sec.57 of the Act has been complied with by the prosecution. 36. Learned counsel for the appellants strenuously contended that the mandatory requirements of Sec.50 of the N.D.P.S. Act has not been followed in this case and that on that ground alone, the conviction is vitiated. Before proceeding to decide the above question, it becomes necessary to give a finding on the question as to how and from where the contraband was seized. 37. Before proceeding to decide the above question, it becomes necessary to give a finding on the question as to how and from where the contraband was seized. 37. P.W. 1 Superintendent of Customs has stated that on 28.4.1995, he and other officials went to the house of the second accused. Even though they conducted search they could not recover any contraband which is evident from Ex.P-2. P.W.I has further stated that after completing the search in the house of second accused, they saw the first accused coming towards the house of second accused and that when they enquired him, he disclosed his name in Hindi Language and thereafter, they went to the house of the third accused, which was identified by second accused. On enquiring the third accused, they directed the third accused to identify the house of the fourth accused and thereupon, the third accused also accompanied them to the house of the fourth accused, along with accused 1 and 2. It is in the evidence that the house of fourth accused is situate in D.No.28. Ganapathy Nagar, Oyyakondan, Thirumalai, Trichy. It is in the evidence of P.W. 1 that at that time, the fourth accused was sitting below the roof shed and after enquiring the fourth accused in the presence of witnesses, he conducted search and that they saw a old bag on the window sill and they took the bag and that when they opened they found five polythene packets wrapped with insulation tapes and that out of five packets three packets were wrapped up with insulation tapes and that all the five packets contained brown colour powder and that thereafter, they prepared mahazar Ex.P-3. It is, thus, seen from the evidence of P.W. 1 that the contraband was recovered from the house of the fourth accused and that it was concealed on the sunshade. 38. Learned counsel for the appellants contended mat P.W.I received information on 27.4.1995 itself wherein the names of the accused, the place of concealment are specifically stated and that even though, they were aware of the fact from Ex.P-1 that the contraband was concealed in the house of the fourth accused, there was no reason for P.W. 1 and other officials to go and search the house of the second accused. It is, further, contended that even though it is alleged that P.W. 1 received information on 27.4.1995 itself, the delay in conducting search on the next day has not been properly explained. It is no doubt true that in Ex.P-1 the door number of the house and the names of the accused are stated. The information was recorded at 4.00 p.m. on 27.4.1995. P.W1 proceeded to conduct search from 6.00 a.m. on 28.4.1995. The fact that P.W. 1 did not immediately proceed to the house of the fourth accused after recording information will not affect the case of the prosecution, in view of certain other evidence adduced by the prosecution. P.W. 1 has stated that after receiving information he directed his officials that after receiving information he directed his officials to survey the area. P.W4 who is Inspector of Central Excise has stated that they conducted surveillance from 11.00 p.m. till 6.00 a.m. on the next day. There is no reason to discard the above evidence of P.W.4. Therefore, as P.W.4 and other officials were surveilling the area, where the contraband is alleged to have been concealed from night of 27.4.1995 itself, the fact that P.W. 1 did not seize the contraband on 27.4.1995 itself would not create any doubt upon the fact of recovery of contraband from the house of the fourth accused. 39. It is, no doubt, true that P.W. 1 received specific information that the contraband was concealed in the house of the fourth accused. But, he did not proceed to the spot immediately to search the house of the fourth accused. As already stated, it is the case of the prosecution that inter state gang is involved in smuggling of contraband. Therefore, P.W. 1 and other customs officials were bound to enquire the authenticity of information. It is stated in Ex.P-1 that the contraband was handed over by third accused and that he was introduced by the second accused. Therefore, the officials seem to have proceeded to search the house of the second accused first. As it is specifically mentioned that accused 2 to 4 are involved in handing over the contraband to another accused, the act of P.W.I in conducting search of second accused first cannot be said to be unusual. Therefore, the officials seem to have proceeded to search the house of the second accused first. As it is specifically mentioned that accused 2 to 4 are involved in handing over the contraband to another accused, the act of P.W.I in conducting search of second accused first cannot be said to be unusual. Further, since the house of fourth accused and area was under surveillance of P.W.4 and other officials, the possibility of contraband removing either from the house of second accused or fourth accused is ruled out. The evidence of P.W.I on the above aspect is corroborated by the evidence of P.W.2. For the above reasons, I hold that the fact that P.W.1 did not rush to the house of the fourth accused immediately on receipt of the information will not throw any doubt upon the evidence relating to recovery of the contraband. 40. The evidence of P.Ws.1 and 2 will prove that the contraband was recovered from the house of the fourth accused and that the contraband was kept on the window sill. In Ex.P-3 the mahazar it is stated that the bag containing the contraband was kept on the sunshade of the window. It is in the evidence of P.W.4 that when P.Ws.1 and 2 went to the house of the fourth accused, he was surveilling the accused. The prosecution has also examined mahazar witnesses to prove the recovery. P.W.6 is employed as a watchman in the house of Doctor. He has stated in his evidence that he saw the fourth accused sitting in his house below the roof and that the officials conducted search in his house and that the officials also searched the portion of thatched shed and that the officials took the bag which was kept on the window. P.W.6 has also signed in the mahazar Ex.P-3. Except, the suggestion that he is a stock witness of Customs Officials nothing worth mentioning is elicited to discredit his evidence. 41. It is significant to note that the fourth accused did not deny that the customs officials came to his house on the relevant date. During Sec.313, Crl.P.C. examination, he has stated that customs officials alone came to his house at about 9.30 a.m. But, he would deny that accused 1 to 3 accompanied the customs officials. 41. It is significant to note that the fourth accused did not deny that the customs officials came to his house on the relevant date. During Sec.313, Crl.P.C. examination, he has stated that customs officials alone came to his house at about 9.30 a.m. But, he would deny that accused 1 to 3 accompanied the customs officials. It is, thus, seen that the presence of customs officials in the house of fourth accused on the relevant date is admitted. In the written statement, given by the fourth accused before the Court, he has admitted that the Customs Officials came to his house and conducted search and that no contrabanded was recovered from the house. The answers given by the fourth accused during Sec. 313, Crl.P.C. examination if considered along with the evidence of P.Ws.1 and 2 and P.W.6, it would establish the case of the prosecution that the contraband was recovered from the house of fourth accused from the sunshade. It cannot be disputed that the answers given by the accused during 313, Crl.P.C. examination may be taken into consideration by the Court. Though, the admission made by the accused in 313, Crl.P.C. examination alone cannot be the sole basis for conviction, the answers given by the accused can be taken into consideration by the Court along with other legal evidence adduced by the prosecution. For the above reasons, I hold that there are no reasons to discredit the evidence of P.Ws. 1, 2 and 6 for holding that the contraband was recovered from the house of the fourth accused. 42. It is contended by the appellant that it is not mentioned in the complaint as to the place from where the contraband was recovered. But, in Ex.P-3, the place from where the contraband was seized is specifically mentioned. The complaint was presented before the Special Court on 22.6.1995. The seal affixed on the mahazar Ex.P-3 will show that it was filed into Court on 31.5.1995. Therefore, it cannot be said that only after filing the complaint, the fact of recovery of contraband from the sunshade is inserted in the mahazar. The fact that the complaint does not disclose the place from where the contraband was seized will not affect the case of the prosecution, inasmuch as the place from where exactly the contraband was seized is specifically mentioned in Ex.P-3, the mahazar. The fact that the complaint does not disclose the place from where the contraband was seized will not affect the case of the prosecution, inasmuch as the place from where exactly the contraband was seized is specifically mentioned in Ex.P-3, the mahazar. For the above reasons, the contention of the appellant that the prosecution failed to prove that the contraband was recovered from the house of fourth accused has to be rejected. I see no reason to reject the evidence of P.Ws. 1, 2 and 6 on this aspect. Therefore, I hold that the trial Court has come to the correct conclusion in holding that the contraband was recovered from the house of fourth accused. 43. In Balbir Singhs case, referred to above, the Supreme Court has declared that Sec.50 of the Act is mandatory and that non-compliance thereof would vitiate the trial. Learned counsel for the appellants contended that the accused were not given option to examine him either before the Gazetted Officer or Magistrate and that the contraband was recovered from the immediate possession of the fourth accused and that therefore, Sec.50 of the Act has not been complied with. 44. Per contra, the learned counsel for the respondent contended that only if the officer authorised under Sec.42 of the Act is about to search a person either with a warrant or authorisation issued under Sec.41 of the Act or without warrant by virtue of the powers vested on him by Sec.42 of the Act itself or searches a person in a public place, such an officer can give option to the accused for taking him before a Gazetted Officer or Magistrate and that when search is conducted by a Gazetted Officer who are vested with powers under Sec.41 (2) of the Act the option need not be given to the accused. In other words, it is the contention of the respondent that when the searching officer himself is a gazetted officer no option need be given under Sec.50 of the Act. I am unable to subscribe to the view taken by the counsel for the respondent, in view of clear mandate of Apex Court in Balbir Singhs case. In other words, it is the contention of the respondent that when the searching officer himself is a gazetted officer no option need be given under Sec.50 of the Act. I am unable to subscribe to the view taken by the counsel for the respondent, in view of clear mandate of Apex Court in Balbir Singhs case. It is clearly held in the above decision that on prior information, the empowered officer or authorised officer while acting under Sec.41(2) or Sec.42 of the Act should comply with the provisions of Sec.50 of the Act before the search of the person is made and such person should be informed that if he so desires he shall be produced before the Gazetted Officer or Magistrate as provided thereunder and that it is obligatory on the part of such officer to inform the person to be searched. It is, thus, seen that both the empowered officer or authorised officer are under obligation to comply with the provisions of Sec.50 of the Act. In view of the above decision, of the Supreme Court, I do not accept the contention of the respondent that the option need not be given to the accused, since P.W. 1 himself is a gazetted officer, who can conduct search without warrant. 45. This takes us to the next question, whether option under Sec.50 of the Act should be given to searches conducted in the premises. On this aspect, learned counsel for the appellants and respondent advanced elaborate arguments citing several decision of High Court and Apex Court, Learned counsel for the appellants contended that the contraband recovered from the house of the fourth accused while he was sitting below the roof shed will amount to immediate possession of the accused and as such, the accused should be given option under Sec.50 of the Act. On the other hand, it is contended by the respondent that Sec.50 of the Act would apply only to search of a person and not the premises. 46. Learned counsel for the appellants relies upon a decision to substantiate his plea that the recovery of contraband from bag and other materials found in the premises would amount to search of a person. 47. In Ali Mustafa v. State of Kerala Ali Mustafa v. State of Kerala, A.I.R. 1995 S.C. 244 it is held that failure to provide option to the accused vitiate the conviction. 47. In Ali Mustafa v. State of Kerala Ali Mustafa v. State of Kerala, A.I.R. 1995 S.C. 244 it is held that failure to provide option to the accused vitiate the conviction. The facts of the above case will show that the accused was found sitting with a bag at railway station and that when he was questioned he took a small packetof charas from his bag and handedover it to P.W.6 and that on further questioning, P.W.6 recovered three big packets from the bag which was in possession of the appellants. It is, thus, apparent that the accused were sitting in first class waiting room in the railway station along with the bag. Therefore, it is held that the above recovery is equivalent to search of a person. Another decision citied by the learned counsel for the appellants is reported in Mohinder Kumar v. State of Goa, Panaji Mohinder Kumar v. State of Goa, Panaji , 1995 Crl.L.J. 207. The facts of the case will show that when the police officials went to the house of the accused, they saw a white plastic bag lying by the side of the accused Mohinder Kumar and that at the instance of the accused, another recovery was effected from the adjoining room where a shoulder bag was found. It is, thus, seen that the contraband was recovered from the room of the house and also from the accused. The above two decisions will not advance the case of the appellants, since in this case the contraband was not kept either in the room of the house. On the other hand, it is proved that the contraband was not kept on the sunshade with a view to secret the same. The ques-tion as to what meaning can be assigned to the phrase “search any person” used in Sec.50 of the Act came up before a Full Bench of Bombay High Court. The above decision is reported in Ebanezer Adebaya v. State of Maharashtra Ebanezer Adebaya v. State of Maharashtra, (1996)III C.C.R. 478. The ques-tion as to what meaning can be assigned to the phrase “search any person” used in Sec.50 of the Act came up before a Full Bench of Bombay High Court. The above decision is reported in Ebanezer Adebaya v. State of Maharashtra Ebanezer Adebaya v. State of Maharashtra, (1996)III C.C.R. 478. The Full Bench refer it elaborately discussing the various decisions on this aspect has held that personal search would be confined to search of articles in the person or body of the person and that it would include search of articles in immediate possession such as bag and other luggage carried by the accused or in the physical possession of the person to be searched. It is also held by the Full Bench that search of any person would not include any bag or luggage which were presumed to be in the possession of the person, even though, it may be lying in the house or railway compartment or at the airport. The Full Bench has also held that Sec.50 cannot be extended to the cases of search of the place or conveyance or house, if the accused is present at the time of search. Relying upon the above decision, the learned counsel for the respondent contended that in the case of contraband recovered in search of house, building or public place, Sec.50 of the Act will not be attracted. It is also clear from the above decision that if the contraband is recovered from the packets which were not in actual possession of the accused, the question of compliance of Sec.50 of the Act does not arise. 48. The Apex Court in Nandi Francis v. Union of India Nandi Francis v. Union of India. 1997 C.C.R. 27 has held that if the article is lying elsewhere and is not on the person of the accused and is brought to the place where the accused is found and on search incriminating articles are found therefrom, it would not attract the requirements of Sec.50 of the Act, for the simple reason that it was not found on the accused person. In the above case, one of the bags carried by the passengers was lodged in the aircraft by which he was supposed to travel and that the above bag was brought by the Customs Officer and searched. In the above case, one of the bags carried by the passengers was lodged in the aircraft by which he was supposed to travel and that the above bag was brought by the Customs Officer and searched. The Apex Court, in the above decision, has held that the requirements of Sec.50 of the Act cannot be extended to such kind of searches. The peculiar question that arises in this case is whether the contraband recovered from the sunshade of the building will amount to “search of the person” The trial Court has held that the sunshade from where the contraband was recovered is part of the building. The decisions relied on by the learned counsel for the appellants which are referred to above relate to the case of recovery of articles found within immediate possession of the accused. The searching officer, who conduct search in the premises can easily discover the bags and luggage s found in the room or kitchen or in the almirah of the house and in such cases, it can be easily held that the accused was in immediate possession of the contraband. But, in this case, it is seen that the contraband which was concealed on the sunshade of the roof cannot be easily visible to the marked eye. P.W.2 has stated that one could not easily see the article kept on the sunshade and that it was kept on the height and that when one of the Constables attached to the department was directed to climb the sunshade, he saw the bag kept on the sunshade. I see no reason to discard the above evidence of P.W. 2. In Ex.P-3, the mahazar, it is stated that the contraband was recovered from the sunshade. It is, thus, seen that the contraband was recovered from the place which could not be easily seen by other persons. Therefore, it has to be held that the contraband was concealed in the place which would not be normally used for storing the articles. In the above circumstances, it cannot be contended that the fourth accused was in immediate possession of the contraband. Therefore, the non-compliance of Sec.50 of the Act will neither affect the case nor vitiate the conviction. 49. In the above circumstances, it cannot be contended that the fourth accused was in immediate possession of the contraband. Therefore, the non-compliance of Sec.50 of the Act will neither affect the case nor vitiate the conviction. 49. Learned counsel for the respondent relies upon a decision reported in B.H.Sainy v. State of Maharashtra B.H.Sainy v. State of Maharashtra, 1995 Crl.L.J. 4105 (Bombay High Court) wherein it is held that when search was conducted by empowered gazetted officer himself compliance of Sec.50 of the Act shall be deemed to have been made and as such, the non-compliance of the section will not affect the trial. It is needless to pursue any discussion on the question whether the search made by P.W. 1 the gazetted officer if sufficient compliance of Sec.50 of the Act, in as much as, there is no need to comply with the provisions of Sec.50 of the Act in this case. For the reasons stated above, the contention of the learned counsel for the appellants that the entire case and conviction are vitiated for non-compliance of Sec.50 of the Act has got to be rejected. 50. Nextly, the learned counsel for the appellants contended that the prosecution failed to follow the provisions of Secs.52, 52-A and 55 of the Act. It is contended that after the contraband was seized under the mahazar, it should be dealt with in the manner provided under Sec.55 of the Act and that the contraband should have been handedover to the officer incharge of the police station and that it is admitted in this case, that the NCB officers above the rank of Superintendent are vested with the powers of Station House Officer. Learned counsel for the appellants contended that after drawing samples the goods should be in the custody of godown keeper and that the goods were kept in the customs office for six days from 28.4.1995 to 3.5.1995 and that no evidence was let in to prove in whose custody the samples were kept. Learned counsel for the appellants also contended that it is doubtful that the samples sent for analysis were sent to godown and that it is also doubted that what was seized by P.W. 1 was sent for chemical analysis. Learned counsel for the appellants also contended that it is doubtful that the samples sent for analysis were sent to godown and that it is also doubted that what was seized by P.W. 1 was sent for chemical analysis. On the other hand, learned counsel for the respondent contended that Secs.52 and 55 of the Act are not mandatory and that irregularities committed in following the above procedure would not affect the case. Before proceeding to decide the above question, it becomes necessary to set out the details as to how and in what manner the seized articles were dealt with by P.W.I and other officials. It transpires from the evidence of P.W. 1 that after recovering the contraband from the house of the fourth accused, the accused and contraband were brought to the Customs Office and that in the presence of Assistant Collector and witnesses, two samples weighing 5 gms were drawn from each packet totalling to 10 samples and that it was weighed 5.130 kgs and that after taking samples, the same was packet in a polythene bag and that the same was again packet in a cloth bag and that the packets were sealed and that the signature of accused 1 to 4 and witnesses were obtained. P.W.2 has stated that as no facilities were available at the place where the contraband was seized, the samples were drawn at the Customs Office. P.W.5 has also corroborated the above evidence. He has stated that samples were taken in the office. The above samples were drawn on 28.4.1995 itself. It is in the evidence of P.W.2 that the remaining portion of the contraband along with another set of samples marked as S.2, S.4, S.5, S.8 and S.10 were handedover by him to Godown Keeper namely Vimala. Ex.P-14 is the godown receipt which would show that on 3.5.1995 they handedover the goods to Godown Keeper namely Vimala. Another set of samples marked as S.1, S.3, S.5, S.7 and S.9 were sent to chemical analysis Ex.P-21 the report of the chemical examiner will show that he received the above samples on 2.5.1995. In the above report, it is stated that samples marked as S. 1, S.3, S.5, S.7 and S.9 were received by the chemical examiner. 51. P.W.5 has stated that the seal of P.W. 1 was affixed on the sample packet. In the above report, it is stated that samples marked as S. 1, S.3, S.5, S.7 and S.9 were received by the chemical examiner. 51. P.W.5 has stated that the seal of P.W. 1 was affixed on the sample packet. The above samples were drawn under Ex.P-6, which was signed by accused 1, 3 and 4 and witnesses. In cross examination, he has stated that no seal was affixed at that time of entrustment of the contraband in the office. The evidence of P.W.5 will show that the contraband was entrusted with him. He has stated that he has no separate seal. P.W.5 is the Inspector of Customs. The Customs Department has got their own facilities for keeping the contraband, inasmuch as the samples were sent to analysis within five days from the date of recovery and as the remaining samples were deposited in the godown within six days, it cannot be said that the above samples and contraband would have been tampered with. 52. The prosecution has also filed standing orders and rules under which the contraband should be kept and samples were to be drawn. Ex.P-23 is the Standing Orders No. 1/89. Sec.2 of the Order relates to general procedure for sampling and storage. Sec.3 states that the seizing officers of the Central Government, Customs, Central Excise, Central Bureau of Narcotics, NCB should deposit the samples of the seized drugs to one of the Laboratories of the Central Revenues Control Laboratory nearest to their office. In this case, it is admitted that the samples were sent to chemical analysis. Rule 3.2 relates to depositing the drugs in stores. The rules states that all drugs invariably be stores in safes and vaults provided with double locking system and agencies of the Central and State Government may specifically designate their godowns for storage purposes. Ex.P-14 will show that Inspector of Retail Shop. Trichy received the contraband. Ex.P-14 is acknowledgment for having received the contraband. As P.W.2 has stated that he handedover the contraband to the godown keeper and obtained receipt under Ex.P-14, the non-examination of Vimala, the godown keeper, who received the contraband cannot be said to be fatal to the case. 53. Sec.52(3) of the Act states that every person arrested and article seized shall be forwarded without unnecessary delay to the officer incharge of the nearest police station or officers empowered under Sec.53 of the Act. 53. Sec.52(3) of the Act states that every person arrested and article seized shall be forwarded without unnecessary delay to the officer incharge of the nearest police station or officers empowered under Sec.53 of the Act. The notification issued under Sec.53i.e., S.O.823 (E) dated 14.11.85, will show that the Central Government invests officers on and above the rank of Inspector in the Department of Central Excise, Narcotic Drugs, Customs and Revenue Intelligence and in Central Economic Intelligence Bureau with powers specified in sub-clause (1) of that section. No specific order is produced to show whether P.W.5 was authorised to keep the contraband under Sec.53 of the Act. P.W.5 has stated that he was employed in CBI, branch of Customs. It is not suggested to P.W.5 in cross examination that he was not authorised to keep the custody of the contraband. It is, however, established that one set of samples were sent to chemical examiner and another set of samples with remaining contraband were deposited in the godown approved by the department. I am unable to accept the contention of the appellants that rules framed under Exs.P-23 or Secs.53 and 55 of the Act were violated. 54. Regarding the contention of the learned counsel for the appellants that the prosecution failed to prove that what was seized from the fourth accused was sent for chemical analysis. I hold that the materials placed by the prosecution would negative the above contention. As already stated, only the samples marked as S.2, S.4, S.6, S.8 and SAO were deposited in the godown and that another set of samples only were sent for chemical analysis. It is seen that even before depositing one set of samples in the godown, another set of samples were sent for chemical analysis. The evidence of P.W.8 thechemical examiner employed in Assistant Chemical Examiners Office at Madras Customs will show that the above samples were received and that the same were found packed with seal and that he also compared the seal affixed on the packets with that of the seal noted in test memo and that both found tally with each other. It is, thus, seen that the samples drawn and marked as S.1,S.3, S.5, S.7 and S.9 were sent to chemical examiner. P.W.10 another chemical examiner has also corroborated the above piece of evidence. It is, thus, seen that the samples drawn and marked as S.1,S.3, S.5, S.7 and S.9 were sent to chemical examiner. P.W.10 another chemical examiner has also corroborated the above piece of evidence. It is, thus, seen that the samples drawn on 28.4.1995 at the Customs House were sent to P.W.8 for test. Even though, it is not clearly spoken to by the witnesses as to where exactly the samples were kept before sending to chemical examiner, it cannot be contended that there was possibility of tampering with the samples. 55. It is contended by the appellants that as per the rules the samples should have been taken at the place where the contraband was recovered. It is in the evidence of P.W.2 that since there were no facilities for taking the samples, the contraband and the accused were taken to customs house from where the samples were drawn. It is the case of the prosecution that the contraband worth about Rs.15 lakhs was recovered. Therefore one cannot expect the official to draw the samples following the rules at the house of the fourth accused. Therefore, the explanation, given by P.W.2 on this aspect appears to be acceptable. Hence, I hold that the fact that the samples were not taken at the house of the fourth accused would not affect the evidence relating to drawing of the samples. The non-examination of Vimala would not affect the case of the prosecution. 56. Coming to the decisions relied on by the learned counsel for the appellants on this aspect it has to be held that, it is no where stated that Secs.52 and 55 of the Act are mandatory. In Balbir Singhs case, it is held that the provisions of Sec.52 of the Act are not by themselves mandatory and that if there is non-compliance or if mere are lapses then the same has to be examined to see whether any prejudice has been caused to the accused. The fact that there is no evidence to show as to where exactly the samples which were deposited in godown and sent to chemical examiner were kept earlier would not vitiate the trial. 57. The decision reported in State of Rajasthan v. Daulat Ram State of Rajasthan v. Daulat Ram, A.I.R. 1980 S.C. 1314 relied on by the appellants would not in any way strengthen the case. 57. The decision reported in State of Rajasthan v. Daulat Ram State of Rajasthan v. Daulat Ram, A.I.R. 1980 S.C. 1314 relied on by the appellants would not in any way strengthen the case. It is held in the abovedecision that samples changed several hands before reaching the Public Analyst and that witnesses were not examined to prove that while in their custody the seals were not tampered with. The above decision will not apply to the facts of this case for the reasons which are stated in earlier paragraphs. 58. In Valsala v. State of Kerala Valsala v. State of Kerala, 1993 S.C.C. (Crl.) 1082 it is held that in the absence of evidence to show that during the long period of three months between the seizure and production in Court, the seized article was in the custody of the officer incharge of the police station and that the same was kept under seal, it was doubtful whether the article that was seized was sent to chemical examiner. It is established in this case that there is no abnormal delay in sending the samples to chemical examiner. There is no undue delay in depositing the remaining part of the contraband in the godown approved by the Customs Department. P.W. 1 has stated that the contraband with the samples were produced before the Court and that on the orders of the Court, the same were returned and that again, the same were produced before the Court and that as per the orders of the Court, the remaining packets of M.Os.l to 6 were kept in their godown. The above part of the evidence was not challenged in the cross examination. In the above circumstances, the above reported decision will not apply to the facts of this case. 59. In Kesavan v. Assistant Collector of Customs Kesavan v. Assistant Collector of Customs , 1986 T.L.N.J. 137 the Court has held that the witnesses have no knowledge as to whether the goods were really in the warehouse and that there is no evidence to h6ld that there was no chance of changing the material objects or tampering with them. As already stated, the samples were drawn at the Customs Office and that one set of samples were sent to chemical analysis and another set of samples were deposited in the godown as per the orders of the Court. As already stated, the samples were drawn at the Customs Office and that one set of samples were sent to chemical analysis and another set of samples were deposited in the godown as per the orders of the Court. As the samples were sent to the chemical examiner without unnecessary delay, it cannot be said that there was possibility of tampering with the above samples. Therefore, I hold that the above reported decision will not assist the case of the appellants. 60. Learned counsel for the respondent also relies upon certain decisions to substantiate his plea that irregularities committed in observing the procedure laid down under Sec.55 of the Act would not vitiate the trial or conviction. In Mariya Nacikam v. Assistant Collector of Customs, C.A.No. 145 of 1989 this Court while dealing with the above question has held that noncompliance of Sec.52 of the Act would not vitiate the case. In B.H.Sainy v. State of Maharashstra B.H.Sainy v. State of Maharashstra , 1995 Crl.L.J. 4105 the Bombay High Court has held that as regards non-compliance of Secs.55 and 57 of the Act though minor irregularities have been pointed out by the trial Court but considering the said irregularities in the light of the entire evidence led by the prosecution, it cannot be said that the finding of the trial Court that no prejudice has been caused to the appellant cannot be said to be infirm warranting interference by this Court and that minor irregularities about the compliance of Sec.55 of the Act in the facts and circumstances of the case have not caused any prejudice to the case of the appellants. The Kerala High Court in Chandrasekaran v. State of Kerala Chandrasekaran v. State of Kerala, (1993)1 A.L.T. (Crl) 552 (D.B.) has held that it cannot be presumed that the investigating officers being interested in the prosecution, would tamper with the materials which remained in their custody and concoct such materials to bring the case to conviction and that it would not be proper judicial attitude to start with distrust or suspicion against investigative exercises made by the public officers. In another decision of Kerala High Court reported in Suresh v. State Suresh v. State, 1997 MLJ. In another decision of Kerala High Court reported in Suresh v. State Suresh v. State, 1997 MLJ. (Crl.) 45 it is held thus: “The section only means that it will open to authorised officer or empowered officer other than the officer incharge of police station either deliver the articles before the officer incharge of police station or he may produce articles in the Court or send the same direct for chemical analysis.” It is further, held that on a careful reading of Sec.55 of the Act it would appear that affixing of seal by the officer incharge of police station is insisted only samples were taken from the police station and the seal is affixed by the investigation officer in the police station. It is, thus, seen from the above decision that irregularities committed in sealing and sending the samples would not always vitiate the trial, unless, it is shown that prejudice was caused to the accused. 61. It is, further, contended that as per Sec.52(A), of the Act, the articles should be produced before the Magistrate and apply for the goods to be photographed and samples taken in the presence of magistrate and that brown sugar is one of the Narcotic Drugs notified under Sec.52(A) of the Act and that the above provision was not complied with by the prosecution. Sec.52-A of the Act relates to disposal of the Narcotic Drug. It cannot be said that non-compliance of the above section would invalidate the recovery of the contraband and analysis of the same by the chemical examiner. Certain safeguards were provided under the above section, having regard to the hazardous nature of the contraband. However, it cannot be contended that failure to follow the above provision would cause prejudice to the accused. 62. As already stated, the samples were drawn at the Customs House and that one set of samples was sent to Chemical Analyst without unnecessary delay and that another set of samples and remnant parts were deposited in the godown, which is proved by Ex.P-14. The chemical report was sent to the department on 10.5.1995 i.e., within two weeks from the date of drawal of the sample. Having regard to the above facts, it cannot by any stretch of imagination be contended that the case of the prosecution relating to drawal of the sample and sending the same to the godown and chemical analysis is doubtful. Having regard to the above facts, it cannot by any stretch of imagination be contended that the case of the prosecution relating to drawal of the sample and sending the same to the godown and chemical analysis is doubtful. The contention raised by the appellants on this aspect have to be rejected. I hold that even assuming that there are certain irregularities in not following all the rules regarding the samples and keeping in the godown, it would not cause prejudice to the accused and in fact, it is not shown that any such prejudice was caused to the accused. 63. The prosecution also relies upon the confession statement recorded under Sec.67 of the Act. Learned counsel for the appellants challenges the validity of the statements recorded from the accused on two grounds. Firstly, it is contended that the above statements were obtained after prolonged custody in the Custody Office. Secondly, it is contended that the above confession statement were retracted by the accused and that therefore, the trial court was not justified in placing reliance upon the above retracted confession without corroboration. On the other hand, learned counsel for the respondent contended that the confession statement recorded under Sec.67 of the Act is admissible in evidence and that the above statement cannot be equated with the confession statement given to the police officer, which are hit under Sec.25 of the Evidence Act. Learned counsel for the respondent also invited my attention to several provisions of Customs Act and NDPS Act to show that the statements recorded by competent authority under the above acts are admissible in evidence. Both Counsel for the appellant and respondent also relies upon number of decisions in support of their rival contentions. 64. Sec.67 of the Act authorises officers to call for information from any person and also examine any person acquainted with the facts and circumstances of the case. Under the above Section, the statement recorded is admissible in evidence, if it is made voluntary and without any fear on inducement or coercion. It cannot be disputed that P.W. 1 and other officials examined the accused after they were taken to Customs Office. Under the above Section, the statement recorded is admissible in evidence, if it is made voluntary and without any fear on inducement or coercion. It cannot be disputed that P.W. 1 and other officials examined the accused after they were taken to Customs Office. Before proceeding further it would be relevant to bear in mind the principles of law laid down in the following decisions: In Muthuswami v. State of Madras Muthuswami v. State of Madras, A.I.R. 1954 S.C. 4 it is held thus: “A confession should not be accepted merely because it contains a wealth of detail which could not have been invented. Unless the main features of the story are shown to be true, it is unsafe to regard mere wealth of uncorroborated detail as a safeguard of truth” The confession given by the accused which relates to murder has been rejected by the Court. 65. In Hem Raj v. State of Ajmer Hem Raj v. State of Ajmer, 1954 M.W.N. 136. the decision relied on by the counsel for the respondent, it is held that the confession can be corroborated by use of materials already in the possession of the police. 66. In K.I.Pavunny v. Assistant, C. (Headquarter) C.E.C. Cochin K.I.Pavunny v. Assistant, C. (Headquarter) C.E.C. Cochin, 1997 J.T. S.C. 120 it is held that when the accused give confession statement under Sec.108 of the Customs Act, was bound to speak the truth with the added risk of being prosecuted, if he gave false evidence and that the threat emanates from the statute and that the officers merely enforced the law. The Apex Court Court has also enunciated the powers of the gazetted officer to summon any person and conduct enquiry under Sec. 108(a) of the Customs Act. It must be pointed out at this stage that in this case, accused 1 to 4 were arrested only after their statements were recorded by the officials. Even though, the accused were in custody of P.W.I and other officials, it cannot be readily inferred that the accused gave statement under threat and coercion. 67. It is in the evidence of P.W. 1 that after explaining the provision of Sec.67 of the Act, the statements were recorded. The statement of first accused was recorded by P.W.7. Even though, the accused were in custody of P.W.I and other officials, it cannot be readily inferred that the accused gave statement under threat and coercion. 67. It is in the evidence of P.W. 1 that after explaining the provision of Sec.67 of the Act, the statements were recorded. The statement of first accused was recorded by P.W.7. P.W.7 has stated that at about 6.30 a.m. in the morning, the first accused was found moving near the house of second accused and that when he examined him, he gave reply in Hindi and that thereafter, the first accused was examined by him in the evening. The statement given by the first accused in Hindi was recorded by him. Ex.P-10 is the said statement. It is suggested to him that the accused was compelled to give statements. But, it is not suggested to P.W.7 that the first accused was beaten by the officials. The statement given by the second accused (Died) was recorded by P.W.4 under Ex.P- 7. P.W.4 has admitted that the second accused was enquired in his house, his statement was not recorded at the house. The fact that the statement of second accused was not recorded at his house will not invalidate the enquiry conducted under Sec.67 of the Act. P.W.4 has also stated that as the contraband was to be recovered immediately, his statement was not recorded at the house of the second accused. 68. The statement of third accused was recorded by P.W.3 in the presence of P.W.I under Exs.P-8 and P-9. The statement of fourth accused was also recorded by P.W.3 in the presence of P.W. 1 under Ex.P-11. It is seen that the statement Ex.P-7 was recorded from 2.00 p.m. The statement Ex.P-8 was recorded at 7.15 p.m. and further, statement Ex.P-9 was recorded at 9.45 p.m. The statement of the fourth accused was recorded at 10.30 p.m. Relying upon the above facts, it is contended by the learned counsel for the appellant that the accused were under prolonged custody and that therefore, it cannot be said that the above statements were given by the accused voluntarily. It is seen that the statement of fifth accused and sixth accused were recorded on 30.4.1995. It is significant to note that the averments by the enforcement officer as those facts are within the special knowledge of the accused. It is seen that the statement of fifth accused and sixth accused were recorded on 30.4.1995. It is significant to note that the averments by the enforcement officer as those facts are within the special knowledge of the accused. The fact as to how the poppy was purchased in North India and the persons from whom the said materials were purchased and how the same was transported in the lorry and how they reached Coimbatore and Trichy are all stated in the statement. The facts as to how the accused met other accused in the course of transaction are also detailed in the statements. I have no hesitation in holding that the above facts are within the special knowledge of the accused. I am unable to accept that the details contained in the above statement are invented by P.W. 1 and other officials. 69. It is, further, seen that after search, in the morning they were brought to the customs house and that samples were drawn. The officials have to perform certain statutory obligations in drawing the samples and examining the accused. Therefore, the fact that the statements were recorded only from 2.00 p.m. on that day cannot lead to any inference that the statements were recorded by the officials by threat and coercion. 70. It cannot be contended that conviction cannot be based on retracted confession. In this case, there are other materials to prove that the statement given by the accused are true. P.W. 1 received information on 27.4.95, wherein the names of the accused and the manner under which the contraband was transported from North India are stated. Immediately on receipt of the information, the area where the fourth accused and other accused were residing were kept under surveillance and on the next day i. e., 28.4.1995, P.W.1 and other officials proceeded to the spot and conducted search and that during the search, the contraband was recovered from the house of the fourth accused. While proceeding to conduct search, they first contacted the second accused and that thereafter, they saw the first accused coming in the opposite direction and that on the basis of the information given by they went to the house of the third accused and that thereafter, all the accused went to the house of the fourth accused. While proceeding to conduct search, they first contacted the second accused and that thereafter, they saw the first accused coming in the opposite direction and that on the basis of the information given by they went to the house of the third accused and that thereafter, all the accused went to the house of the fourth accused. The very fact that all the accused 1 to 3 were taken to the house of the fourth accused on the same day coupled with the fact that accused 5 and 6 were arrested at Trichy on 30.4.1995 would, if considered along with the statements given by them, lead to a definite conclusion that the averments contained in the statements are true and that it relates to transport and possession of narcotic drug. When once it is found that there are materials to corroborate the retracted confession, the fact that the accused retracted the confession during subsequent stage of investigation cannot be a ground to rejected the evidence adduced by the prosecution on this aspect of the case. Accused 1, 5 and 6 hail from North India. Accused 2 to 4 belongs to Trichy. The presence of accused 5 and 6 after 28.4.95, will have to be taken into consideration in assessing the truth of the confession statement. Even though, there are some contradictions with regard to arrest of first accused, it is, however, established that the first accused was also taken to Customs Office on 28.4.1995 itself. The Arrest Memo Ex.P-12 will show that the first accused was arrested at about 11.00 p.m. on 28.4.1995. The above circumstances should be considered cumulatively. Hence, I do not accept the contention of the appellants that the statements were recorded under threat and coercion and that conviction cannot be based on retracted confession. 71. It is very easy to contend that the confession was obtained by threat and coercion. Absolutely, there are no materials in this case to show that the confession statements were in fact obtained from the accused by using threat and coercion. The evidence of P.W. 1 and other officials who recorded the statements cannot be discarded merely on the ground that they are the officers who conducted search and arrested the accused. 72. During 313 examination, the first accused has stated that after explaining the relevant section, his signature was obtained in a white paper. The evidence of P.W. 1 and other officials who recorded the statements cannot be discarded merely on the ground that they are the officers who conducted search and arrested the accused. 72. During 313 examination, the first accused has stated that after explaining the relevant section, his signature was obtained in a white paper. He has also stated that his signature was obtained by heating him. As already stated, it is not even suggested to P.W.7 that the first accused was beaten by the time of recording his statement. The third accused has stated that he wrote statements Exs.P-8 and P-9 in his own hand. But, he would say that already there was a written statement and that he was compelled to write another statement. The fourth accused has stated that he wrote statement Ex.P-11 after beating him and that the officials promised that they would leave him, if statement was given by him. The fifth accused denied having given statement. The sixth accused has stated that statement was recorded from him after beating him. ‘It is, thus, seen that the fact that the accused gave statement at the office of P.W.1 is not disputed. Mere assertion of the accused that the statements were recorded under coercion, or threat, which is not supported by any other materials, cannot be a ground for holding that the statements were recorded by P.W. 1 and other officials by exercising coercion and threat. I see no reason to discard the evidence of P.W.1 and other witnesses who recorded the statements of the accused. For the above reasons, I hold that the statements given by the accused are voluntary and that there are materials to corroborate the statements given by the accused and as such, the trial Court was justified in placing reliance upon the above statements for convicting the accused. 73. It is contended by the appellants that names of some other accused were also revealed by the accused and that those persons were not arrested and that no proper enquiries were made with regard to staying of the accused 5 and 6 in the lodge and transport through the lorry from Madhya Pradesh. As already stated, the statements given by accused 5 and 6 consist of all the materials to prove conspiracy, transport and possession of the contraband. Therefore, the non-examination of other witnesses will not affect the case of the prosecution. 74. As already stated, the statements given by accused 5 and 6 consist of all the materials to prove conspiracy, transport and possession of the contraband. Therefore, the non-examination of other witnesses will not affect the case of the prosecution. 74. The confession statements would disclose the fact as to how the conspiracy was hatched, carried out and implemented successfully by the accused. In his statement, the their accused has stated that he was acquainted with the second accused and that he told him that he received 5 kgs of brown sugar and that when he went to the house of the second accused, he saw a North Indian and that thereafter, he asked the fourth accused to keep the contraband and that till 27.4.1995, he could not sell the contraband and that when he asked the second accused to take back the contraband, the second accused requested him to keep it in his custody. It is seen from the statement, Ex.P-9, that he was also detained under COFEPOSA Act in the year 1992 and that the writ petition filed by him ended in his favour. In the statement of first accused, it is stated that the bag containing the contraband was given to him by Umbersingh and Bavani and that Sivalal and Kailash also came with him and that they boarded a lorry bound for Coimbatore. It is, further, stated that he hold the second accused that he brought 5 kgs of brown sugar and that he handed over the same to Karim and that at that time, the third accused was also present. The fourth accused has stated that the third accused handed over the contraband to him and that at that time, he was no aware of the contents of the bag and that only yesterday (27.4.1995), he came to know that it contained narcotic drug and that he requested the third accused to take back the bag and that till it was recovered from his house, he did not remove the same. Even assuming that the fourth accused was not aware when the third accused handedover the bag that it contained contraband, he came to know on 27.4.1995 itself that the bag contained narcotic drug and that he concealed the same in his house. Even assuming that the fourth accused was not aware when the third accused handedover the bag that it contained contraband, he came to know on 27.4.1995 itself that the bag contained narcotic drug and that he concealed the same in his house. Therefore, the fourth accused cannot wriggle out from the liability on the ground that he was not aware of the contents of the bag, when the same was. handedover to him by the third accused. 75. It is seen from the statement of the fifth accused that the second accused was already known to him and that he wrote a letter to fifth accused asking him to arrange for five “sarees”, which is a code name for brown sugar. It is seen from the statements that there are licence fields of poppy in the villages of Madhya Pradesh. He has also stated that the sixth accused also purchased one kilogram of brown sugar and that they travelled in a lorry bound to Coimbatore and that they decided to go to Trichy by lorry. The above statement is also corroborated by the statement given by the sixth accused under Ex.P-17. The above statement would prove the case of conspiracy set up by the prosecution. If all the above statements given by the accused are taken into consideration along with arrest of the accused and recovery of the contraband at the house of the fourth accused, it would clinchingly prove the case of the prosecution that the accused 1,3,5,6 entered into conspiracy for transporting and possessing contraband, and that they also intended to sell contraband and that before effecting the sale, the same was seized by P.W. 1. 76. The statements of the accused implicating the other accused and subsequent recovery of the contraband and movement of the accused prior to the date of the recovery and on the date of the recovery are sufficient for holding, that the accused, 1, 3, 5, 6 hatched conspiracy and that accordingly, the contraband was transported from North India to Tamil Nadu. I see no infirmity in the reasons given by the trial Court for accepting the said part of the prosecution case. I see no infirmity in the reasons given by the trial Court for accepting the said part of the prosecution case. As already stated, the details contained in the statements are within the special knowledge of the accused and as such, the above statement cannot be discarded on the ground that the statements were given by the accused while they were in the customs office. 77. Learned counsel for the appellants contended that the trial court erred in convicting the accused under Sec.29 of the Act under Section 120(b) of the Indian Penal Code. The trial Court has framed charges under Sec.29 and other sections of the Act read with 120(b) of the Indian Penal Code. Sec.29 of the Act provides punishment for abatement and criminal conspiracy. It is no doubt true that Sec.29 of the NDPS Act is included in the charge. There is no need to include Sec. 120(b) of the Indian Penal Code. As, it is stated in the above charges that Sec. 120(b) of the Indian Penal Code is added as “read with other sections, the findings of the trial Court convicting the accused under Sec.29 of the Act read with Sec.120(b) of the Indian Penal Code will not invalidate the conviction. Regarding the findings of the trial Court in convicting the accused under Sec.8(c) and other sections, it is contended on behalf of the appellants that Sec.8(c) consists of several parts such as transport, possession, sale etc., and that the charge does not specify as to which of the offence mentioned in Sec.8(1) (c) are committed. In the memorandum of charges, Sec.8(c) is generally mentioned. But, it is mentioned that the accused entered into conspiracy and that they were in illegal possession of the same. The fact entering into conspiracy, transporting the contraband and possession of the same are all stated in the charge memo and that therefore, the fact that charge under Sec.8(c) does not contain the specific offence will not invalidate the conviction or trial. 78. Sec.35 of the N.D.P.S. Act states that in prosecution for offence under this Act, which requires culpable mental state of the accused, the Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state. 78. Sec.35 of the N.D.P.S. Act states that in prosecution for offence under this Act, which requires culpable mental state of the accused, the Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state. On this aspect, learned counsel for the respondent also relies upon a decision of this Court in Assistant Director v. N.P.Ramaswamy Udayar Assistant Director v. N.P.Ramaswamy Udayar, 1996 MLJ. (Crl) 669. In a case relating to Foreign Exchange Regulation Act, the Court has held that under Secs.50 and 71 of the said Act, the Court shall presume the existence of mental state on the part of the accused and the burden of proof to disprove such mental state shall be on the offender and offender alone and not upon the prosecution. The above provision contained in special enactment and also N.D.P.S. Act will show that the Court can presume the existence of mental state on the part of the accused. It is established in this case that the accused entered into conspiracy and in order to implement the act, the contraband was transported from North India to Tamil Nadu, and that the contraband worth about Rs.15 lakhs was recovered at the house of the fourth accused. The evidence of chemical examiner will show that the above drug is a Narcotic Drug i.e., brown sugar. Thus, the prosecution has established that the accused are guilty of the offence with which they are charged. I see no infirmity in the findings recorded by the trial Court. There are no grounds to reverse the conviction and sentence imposed by the trial Court on the accused. For the above reasons, I hold that the conviction and sentence imposed on the accused by the trial Court have to be confirmed. 79. In the result, the criminal appeal is dismissed. The conviction and sentence imposed on the appellants/accused are confirmed. The accused/appellants are directed to undergo rest of the sentence.