Judgment M.L.Visa, J. 1. This appeal is directed against the judgment dated 31.3.2001 and order dated 9.4.2001 passed by Special Judge, Gopalganj in trial No. 6 of 2000/5 of 2001 convicting and sentencing the appellants to undergo rigorous imprisonment for twelve years and to pay a fine of Rs. 1,20,000/- each and in default to pay fine to further undergo rigorous imprisonment for a term of 1-1/2 years under Section 22 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) and to undergo rigorous imprisonment for a period of twelve years and to pay fine of Rs. 1,20,000/- each and in default to pay fine to further undergo rigorous imprisonment for a term of one and half years under Section 23 of the Act. Both the sentences, however, have been ordered to run concurrently. 2. The case of prosecution, as disclosed in the official complaint of complainant Ashish Kumar (P.W. 1), in short, is that the complainant, the then Inspector of Customs (Preventive) Circle, Gopalganj, in course of routine preventive check at Koini under Gopalganj district, received a casual information that Charas may pass through National Highway 28 between 8.30 hours to 12 hours on 10.4.1997 in a car. The complainant passed this information on telephone to Assistant Commissioner, Customs (Preventive) Division, Motihari for deputing any Superintendent of Customs at Gopalganj because the Superintendent, Customs (Preventive) Circle, Gopalganj, who was posted then, was on leave and he alongwith his party rushed to village-Devapur on National Highway 28 and started keeping vigilance on all types of light vehicles. A Fiat car was found coming from Mohammadpur at about 9.30 hours and its movement was suspicious and it did not bear any registration number at the front. The party of complainant gave signal to stop the car and the car stopped after speeding to some distance. When the party of complainant reached near the car, it was found that appellants Radhe Shyam Sharma and Ramchandra were sitting on the back seat of the car and appellant Ramphal Bairagi was sitting on the driving seat. The party of complainant gave signal to stop the car and the car stopped after speeding to some distance. When the party of complainant reached near the car, it was found that appellants Radhe Shyam Sharma and Ramchandra were sitting on the back seat of the car and appellant Ramphal Bairagi was sitting on the driving seat. On being asked by the party, the appellants opened the door of the car which appeared very heavy in movements and on closer look, it was found that panels of all doors were fitted with new screws whereas the car was old one and on enquiry, the appellants said that they were coming from Raxaul and they disclosed their names. The appellants seemed perplexed. The party of complainant told the appellants that it was suspecting them for carrying illegal psychotropic/contraband items in their car and they wanted to search the car and enquired from appellant Ramphal Bairagi who was driving the car whether he wanted his car to be searched before a Gazetted Officer or a Magistrate or before two independent witnesses on which he replied that the car may be searched before two independent witnesses and remaining two appellants showed their willingness by nodding their heads. The complainant called two independent witnesses from the crowd which had gathered at the spot in curiosity and the party of complainant started searching the car and when panels of doors of the car were unscrewed, something in small rod form, burnt brown in colour and wrapped in plastic tapes was located which was taken out and the appellants were enquired about that but they did not say anything. As the thorough search of car, weighment of suspecting thing recovered and another seizure formalities would not have been completed at the spot and considering the sensitivity of the item recovered, the car alongwith appellants and two witnesses was brought to customs (Preventive) Circle Office, Gopalganj and in the meantime, Superintendent, Customs (Preventive) Circle, Bettiah also reached there. As the thorough search of car, weighment of suspecting thing recovered and another seizure formalities would not have been completed at the spot and considering the sensitivity of the item recovered, the car alongwith appellants and two witnesses was brought to customs (Preventive) Circle Office, Gopalganj and in the meantime, Superintendent, Customs (Preventive) Circle, Bettiah also reached there. On thorough search of car, in presence of appellants, two independent witnesses and Superintendent, Customs Preventive Circle, Bettiah, cavities were recovered at the bottom of car and in the petrol tank which was cut apart with the help of chisels and hammers and cavities were fitted with same type of things which was recovered from the panels of doors of car appearing to be Charas and some more Charas was also recovered from the door frames; two pieces of Nivea cream of German make were also recovered. On further enquiry, the appellants accepted that the burnt brown rod shaped things wrapped in plastic tape recovered from the car was pure Charas. one of the wraooings was torn open in the presence of Superintendent, Customs (Preventive) Circle, Bettiah before the two independent witnesses and appellants and its smell was of Charas. The persons of appellants were also searched. The Charas like substance recovered in packets from car was weighed which came to forty eight kilograms, the price of which, according to rate of international market, was forty eight lacs at that time. From car, driving licence, affidavit papers for buying and selling the car forms for transfer on receipt of motor vehicle No. 1046, insurance paper related to car and driving licence of Shri Nand Kumar etc. were also recovered. 3. From car, driving licence, affidavit papers for buying and selling the car forms for transfer on receipt of motor vehicle No. 1046, insurance paper related to car and driving licence of Shri Nand Kumar etc. were also recovered. 3. On further enquiry and in course of interrogation of all the three appellants, it was revealed that appellant Radhe Shyam Sharma had come with one Shri Nand Kumar @ Nand Ram @ Nandi to Raxaul where remaining two appellants were present from before and from there, Nand Kumar went to Birganj in Nepal and fixed up for the delivery of Charas which was taken in a remote village and Charas was fitted in the car there and appellants were carrying the Charas to Jind in Haryana where Nand Kumar used to sell the Charas and appellant Radhe Shyam Sharma was associated with Nand Kumar for last six months and had earlier also carried Charas from Kanpur and Nand Kumar was with the appellants but he got down from car at Dumaria Bridge saying that he would meet them at Gorakhpur. Appellant Radhe Shyam Sharma admitted to have full knowledge of Charas and his statement under Section 107 of stoms Act was recorded. Similarly, appellant Ram Chandra disclosed that he was associate of Nand Kumar and he alongwith Nand Kumar had brought Charas and was taking it to Jind in Haryana where Nand Kumar used to sell it and before this also, he had carried Charas with Nand Kumar and he knew that such act was illegal and he also disclosed that Nand Kumar was with the appellant but he had got down at Dumaria Bridge saying that he would meet the appellants at Gorakhpur and his statement was also recorded under Section 107 of Customs Act. Appellant Ramphal Bairagi stated that both the remaining appellants and Nand Kumar knew about the Charas which was in the car and Charas was kept in the car at a remote village near Raxaul in Bihar and Charas was being carried to Jind in Haryana and he accepted his guilt and his statement was also recorded under Section 107 of Customs Act. The appellants were interrogated under Section 108 of the Customs Act by Superintendent Customs (Preventive) Circle, Bettiah in which they gave the same statement which they had given in their voluntary statements recorded under Section 107 of Customs Act. The appellants were interrogated under Section 108 of the Customs Act by Superintendent Customs (Preventive) Circle, Bettiah in which they gave the same statement which they had given in their voluntary statements recorded under Section 107 of Customs Act. Four samples were drawn from the recovered Charas in presence of appellants and two independent witnesses for chemical examination by Chemical Laboratory, Kolkata which, after test, certified that the sample responded to the test for resineous extract from plant cannabis sativa (Charas). The complaint petition shows that apart from the appellants, Nand Kumar and one Rajendra Singh, the owner of Fiat car No. PNH 7491 were also made accused and summons by Assistant Commissioner, Customs (Preventive) Division, Motihari were issued for their appearance but they did not appear. 4. On the basis of the official complaint of the complainant, cognizance was taken and after separating the case of co-accused Nand Kumar and Rajendra Singh, the trial proceeded against the appellants. 5. The case of appellants, as it appears from the trent of cross-examination of prosecution witnesses and their examination under Section 313 of Code of Criminal Procedure and the evidence of appellant Ram Chandra, who examined himself as D.W. 1, is that they are quite innocent and nothing was recovered either from their personal possession or from any vehicle by which they were travelling and on 8.4.1997, they were travelling by a truck and at Devapur when they got down for taking tea, they were caught by Customs Officers and were falsely implicated in this case. 6. Altogether seven witnesses have been examined on behalf of the prosecution. Ashish Kumar (P.W) is the complainant, Brajesh Kumar (P.W. 2), the then Customs Inspector and Kanhaiya Singh (P.W. 5), Customs Constable are said to be members of the raiding party when the raiding party had got Fiat car stopped and had recovered Charas from it. Ramesh Yadav (P.W. 3) and Tej Bahadur Singh (P.W7) are seizure list witnesses. Jagdish Prasad Singh (P.W. 4), the then Customs Inspector was posted at Bettiah at the relevant time and on 10.4.1997 he, on receipt of arrest of appellants at Gopalganj, had gone to Gopalganj for taking part in enquiry. Ramdhari Das (P.W. 6), Customs constable, was in Customs Office, Gopalganj, where the appellants alongwith the car after their arrest, were brought. 7. Ramdhari Das (P.W. 6), Customs constable, was in Customs Office, Gopalganj, where the appellants alongwith the car after their arrest, were brought. 7. Complainant Ashish Kumar (P.W.1) has said that on 10.4.1997, when he was posted as Customs Inspector in the office of Gopalganj Customs, he was on preventive checking duty alongwith P.W. 2 Brajesh Kumar and six constables and he received information through spy that Charas woud be transported in a small vehicle from Raxaul through National Highway 28 in between 8.30 A.M. to 12 Oclock on the same day and he then passed this information on phone to Assistant Commissioner, Customs, Motihari for assistance and supervision in the checking duty because at that time Customs Superintendent, Gopalganj was on leave and he also requested for sending another Customs Superintendent in helping the work of inspection. He has further said that he, thereafter, alongwith his party, came to village-Devapur and started watching the small vehicles passing through the road and about 9.30 A.M., he saw a Fiat car of light blue colour coming in suspicious condition from Mohammadpur and this car had no number plate in front and then he gave signal for stopping the car but the car, did not stop and he then, by his departmental vehicle, chased the car and after going about two hundred yards got the car stopped and his party surrounded the car. He found that besides the driver, two other persons were sitting on the rear seat of car and he asked the occupants of the car to open the door for checking and then they opened the door and he felt that doors of car heavy and although the car was old one but its door panels were fitted with new screws and, on enquiry, the occupants of the car disclosed that they were coming from Raxaul and they disclosed their names as Radhe Shyam Sharma, Ramphal Bairagi and Ram Chandra (appellants), residents of Haryana and appellant Ramphal Bairagi was the driver of vehicle. He identified the appellants in Court deposing that they were the aforesaid three persons who were found sitting in car. He identified the appellants in Court deposing that they were the aforesaid three persons who were found sitting in car. He has further said that he told the appellants that he suspected Charas in the vehicle and he wanted to check the vehicle and told them whether they would like to go before a Magistrate or a Gazetted Officer or they would like the search to be made before two independent witnesses on which the appellants told that they have no objection in search in presence of two independent witnesses. According to him, a number of villagers had assembled and he called two persons, namely, Ramesh Yadav (P.W. 3) and Tej Bahadur Singh (P.W. 7) from the crowd and in their presence, opened the panels of car and found Charas wrapped in polythene. Because the crowd was becoming larger and he felt that Charas may be in other parts of the car also and it was not possible to weigh the Charas and inspect the car at that place so he brought the car alongwith appellants and witnesses to Gopalganj Customs Office and by that time, Customs Superintendent A.K. Bose from Motihari also reached there and in his presence and in presence of aforesaid two witnesses car was searched and from different parts of the vehicle, Charas was recovered which on weighment was forty eight kilograms. According to him, on the number plate of backside, the number of vehicle was written as PNH 7491 and a driving licence in the name of appellant Ramphal Bairagi was found in the vehicle alongwith another driving licence in the name of one Nand Kumar and registration certificate of the car in the name of Rajendra Singh and two affidavits for sale and purchase of car which were in the names of Rajendra Singh and Nand Kumar were also recovered. He has said that a seizure list was prepared under his direction by Brajesh Kumar (P.W. 2) on which he put his signature and which was signed by the appellants and seizure list witnesses. He has proved this seizure list which is marked Exhibit-1 and signatures of Tej Bahadur Singh (P.W. 7) and Ramesh Yadav (P.W. 3) on it are marked Exhibits-2 and 2/1. He has proved this seizure list which is marked Exhibit-1 and signatures of Tej Bahadur Singh (P.W. 7) and Ramesh Yadav (P.W. 3) on it are marked Exhibits-2 and 2/1. He has also proved the signature of Brajesh Kumar (Exhibit-2/2), signature of appellant Ram Chandra (Exhibit-2/3), signature of appellant Radhe Shyam Sharma (Exhibit-2/4) and has said that appellant Ramphal Bairagi put his left thumb impression on the seizure list. According to him, copies of seizure list were given to appellants and the value of forty eight kilograms of Charas recovered was forty eight lacs according to international price. He has also proved a Panchnama (Exhibit-3) and signature of appellant Ram Chandra (Ex-hibit-2/5), of Radhe Shyam Sharma (Ex-hibit-2/6), of witnesses Tej Bahadur Singh (Exhibit-2/6) and Ramesh Yadav (Exhibit-2/8) and of Brajesh Kumar (P.W2) (Ex-hibit-2/9) and has also proved the seizure list of car (Exhibit-1/1) with signatures of witness Tej Bahadur Singh (P.W. 7) (Ex-hibit-2/10) and witness Ramesh Yadav (P.W. 3) (Exhibit-2/11). He has further proved the statements of all the three appellants and signature of witnesses. On these statements. These statements and signatures are marked Exhibits-4 to 4/2 and 2/12 to 2/17 respectively. He has further proved the interrogation of appellants and the signature of Customs Superintendent A.K. Bose on these interrogations. These interrogations are marked Exhibit-5, 5/1 and 5/2. He has said that the samle of Charas recovered was sent for chemical examination. He has proved the chemical examination report which is marked Exthibit-6. He has proved the forwarding letter which is marked Exhibit-7 and for the seized Charas, he has said that it was sent to godown of Customs Officer, Motihari and has proved a receipt (Exhibit-9) for receipt of Charas there and has also proved an entry (Exhibit-10) in the register of godown showing that the Charas was destroyed in presence of a Judicial Magistrate with the consent of Customs Commissioner and Members of Destruction Committee (Exhibit-11). 8. 8. Brajesh Kumar (P.W.2), Customs Inspector, supporting the case of complainant, has said that on the day of occurrence, he alongwith complainant and some customs constables, was on checking duty on National Highway 28 when a man came and gave some information to complainant and, thereafter, his party came to Hajyapur More where complainant told him to keep watch on small vehicles crossing the road and further told him that he had received some information which he was going to pass on to Assistant Commissioner, Motihari and, thereafter, the complainant went towards Gopalganj Bazar and re- turned back after fifteen minutes and, there- after, they all came to Devapur Village and during the course of checking at about 9.30 A.M., he saw a Fiat car coming from the side of Mohammadpur without any number plate in front and inspite of signal, the car did not stop and he and his party then chased the car by their vehicle and got it stopped after going some distance and surrounded the car and found all the three appellants in the car out of whom appellant Ramphal Bairagi was on driving seat and other two appellants were sitting on the back seat of the car and, thereafter, the appellants were told that their car would be checked and whether they would like the search of vehicle before a Magistrate or Gazetted Officer or in presence of two independent witnesses on which appellant replied that they had no objection if the search was made in presence of two independent witnesses and, thereafter, in presence of Ramesh Yadav (P.W. 3) and Tej Bahadur Singh (P.W. 7), the car was searched and Charas was recovered from one of the door panels of the car and, thereafter, the car alongwith appellants and search witnesses was brought to Gopalganj where on further search, Charas from other parts of the vehicle was also recovered and Panchnama and seizure lists were prepared and voluntary statements and interrogations of appellants were recorded. 9. Kanhaiya Singh (P.W. 5) was posted as customs constable and he was with the complainant in the raiding party on the day of occurrence and he has said that during checking, he found a Fiat car coming from eastern side and the appellants were found sitting in the car and on search, Charas was recovered from the car. 9. Kanhaiya Singh (P.W. 5) was posted as customs constable and he was with the complainant in the raiding party on the day of occurrence and he has said that during checking, he found a Fiat car coming from eastern side and the appellants were found sitting in the car and on search, Charas was recovered from the car. Jagdish Prasad Singh (P.W. 4) was at the relevant time posted as Customs Officer at Bettiah and he has said that on 10.4.1997, Customs Superintendent of Gopalganj was on leave and he received information from Assistant Commissioner, Customs that some ac- cused persons had to be interrogated at Gopalganj and he then alongwith A.K. Bose, the then Customs Superintendent, Bettiah and Customs Inspector came to Gopalganj where he found that all the three appellants had been arrested and in his presence, seizure list of Charas recov- ered from the Fiat car bearing registration No. PNH 7491 which on weighment weighed forty eight kilograms was pre- pared and statements of appellants were recorded by A.K. Bose. 10. Ramdhari Das (P.W. 6), in his evidence, has said that he was posted as customs constable at Gopalganj Customs Office and a vehicle was brought in his office and he has identified the appellants. About the date of bringing the vehicle in his office, he has said that it was 4th day of 10th month of the year, 1997 whereas the case of prosecution is that date of occurrence is 10.4.1997. In cross-examination, this witness has admitted that his eye sight is weak and for this reason, he is unable to read and write and uses spectacles. 11. Ramesh Yadav (P.W. 3) and Tej Bahadur Singh (P.W. 7) are said to be seizure list witnesses. Ramesh Yadav has proved his signature on the seizure list, Panchnama and seizure cum detention memo. He has said that he is the driver of jeep No. BR-28-2593 and Tej Bahadur Singh (P.W. 7) is the owner of this vehicle which was hired by Customs Department at a monthly rental of Rs. 7500/-. Ramesh Yadav has proved his signature on the seizure list, Panchnama and seizure cum detention memo. He has said that he is the driver of jeep No. BR-28-2593 and Tej Bahadur Singh (P.W. 7) is the owner of this vehicle which was hired by Customs Department at a monthly rental of Rs. 7500/-. He has further said that he had gone with customs officials by this vehicle and at that time, owner of vehicle was sitting in the office of Customs Department and the customs officials got a Fiat car stopped at a place some distance ahead of Devapur and then the customs officials brought the vehicle to Customs Office without checking the vehicle and in his presence, Customs Officers did not ask anything from the occupants of the Fiat car and got them confined for four days and, thereafter, forwarded them to jail custody. He has said that neither the car was checked in his presence nor anything was recovered from the car. Tej Narayan Singh (P.W. 7), in his evidence, has said that he is the owner of a commander jeep bearing No. BR-28-2593 and on 10.4.1997, he had given this vehicle to Customs Department on hire and whenever driver of his vehicle used to remain absent, he himself used to drive the vehicle and on 10.4.1997, because his driver was not there, so he himself was driving the vehicle and on that day, he was in the Customs Office. He has further said that three days prior to it, customs officials had seized a car and brought it in his presence and that car was Fiat and in his presence, customs officials had made search of that car and fifty kilograms of Charas and one packet of cream were recovered. He has further said that customs officials had prepared some papers on which he put his signature and he has proved seizure list and Panchnama. He has further said that two to three days prior to 10.4.1997, he had gone with customs officials when the vehicle was seized but he had not seen the appellants sitting in the vehicle but had found them standing by the side of road. He has further said that two to three days prior to 10.4.1997, he had gone with customs officials when the vehicle was seized but he had not seen the appellants sitting in the vehicle but had found them standing by the side of road. He has admitted that the car seized was Fiat car but has said that when the customs officials were leaving Devapur, they asked the persons, who were standing by the side of road, to sit in the car and brought them also in the Customs Office at Gopalganj but nothing was recovered from their possession. He has further said that customs officials got his signatures at 3 P.M. on 10.4.1997 but the papers on which he signed were already written and he does not know what was written on them. 12. From the evidence adduced on behalf of prosecution, we find that complainant has supported the case of prosecution by deposing that appellants were found sitting in a Fiat car and on search, Charas was recovered from the Fiat car. His evidence has been supported by Brajesh Kumar (P.W 2) and Kanhaiya Singh (P.W. 5) who were present with complainant when the car was got stopped and appellants were found sitting in the car and Charas was recovered from different parts of the car. Jagdish Prasad Singh (P.W. 4), a Customs Inspector who had gone from Bettiah to Gopalganj Customs Office had also seen the appellants at Customs Office alongwith the Fiat car and in whose presence, appellants were interrogated and their statements were recorded. Although Ramdhari Das (P.W. 6), Customs Constable has given the date of seizure as 4th day of 10th month of the year, 1997 which differs from the date 10.4.1997 as stated by prosecution but then his evidence supports the case of prosecution that a vehicle alongwith appellants was brought to the Customs Office, Gopalganj. Admittedly, on 10.4.1997, appellants were in custody and it appears that by mistake, this witness stated the number of date as the number of month and the number of month as the number of date. 13. Admittedly, on 10.4.1997, appellants were in custody and it appears that by mistake, this witness stated the number of date as the number of month and the number of month as the number of date. 13. Shri Y.V. Giri, the learned counsel for the appellants has argued that Ramesh Yadav (P.W. 3) and Tej Bahadur Singh (P.W. 7), who are said to be seizure list witnesses have not supported the case of prosecution on the point of recovery of Charas from the vehicle in which the appellants, as alleged, were found sitting and the case of prosecution fails on this ground alone. It is true that these witnesses have not supported the case of prosecution on the point of recovery of Charas from the Fiat car but then we find that these witnesses are not reliable witnesses because they have given quite contradictory statements. Ramesh Yadav (P.W. 3), who has claimed himself to be a driver of the vehicle which was used by customs officials has said that a Fiat car was stopped by Customs Officials at some distance from Devapur but that vehicle was not checked and the Customs Officials did not ask any question from the occupants of that vehicle and brought the vehicle and appellants to Gopalganj and confined the appellants for four days and, thereafter, sent them to jail custody. About his master Tej Bahadur Singh, owner of the vehicle used by Customs Department, he has said that at that time, he was sitting in the Customs Office at Gopalganj. He has not given the date when the Fiat car was stopped by Customs Officials and, alongwith appellants, was brought to Customs Office. From his evidence that appellants were confined for four days and, thereafter, they were forwarded to jail custody, it appears that the vehicle, accordingly to him, was seized on 6.4.1997. On the contrary, Tej Bahadur Singh (P.W. 7) has said that on 10.4.1997, he himself was driving his vehicle because on that day, his driver was not on duty but at the same time, he has said that on 10.4.1997, he had not gone to Devapur and he was in Customs Office and three days prior to it, Customs Officials, after seizing a vehicle, had brought it in his presence and that car was Fiat. He further said that Charas was recovered weighing about fifty kilograms from the car and customs officials had prepared papers which were read over to him and he put his signature. He has also proved his signature on Panchnama and list prepared for other documents of Fiat car but in cross-examination, he said that the papers on which he put his signature were not prepared in his presence and were already written when they were placed before him and he does not know what was written on them. Tej Bahadur Singh (P.W. 7) has admitted that on 10.4.1997, he had given his jeep to customs officials on hire for using the same. If his evidence that on that day, his driver was not present and in absence of his driver, he himself was driving the vehicle and the Customs Officials on that had not gone to Devapur, then the question will arise that, for what purpose, he had given his vehicle to Customs Department on hire. He, further, says that about two to three days prior to 10.4.1997, he had gone with Customs Officials to the place from where car was seized but about appellants, he says that he had not seen them sitting in the car but he found them standing by the side of road and Customs Officials, while coming to Gopalganj, asked the appellants to sit in the car and brought them to Gopalganj. He has further added that on that day, his driver was with him. This is against the evidence of P.W. 3 who has said that at the time of seizure of Fiat car at a place a bit away from Devapur, he was not there because Ramesh Yadav (P.W. 3), like him, has said that at that time, this witness was sitting in the Customs Office. Ramesh Yadav (P.W. 3) has not said that Customs Officials, after inspecting the Fiat car, asked the appellants, who were standing by the side of road to sit in the car and brought them to Gopalganj. On the other hand, he has said that appellants were in the car. From all these facts, it is clear that both these witnesses are not telling the entire truth. But one thing is clear from the evidence of these two witnesses that a Fiat car was seized by Customs Officials and appellants were brought to Gopalganj Customs Office. On the other hand, he has said that appellants were in the car. From all these facts, it is clear that both these witnesses are not telling the entire truth. But one thing is clear from the evidence of these two witnesses that a Fiat car was seized by Customs Officials and appellants were brought to Gopalganj Customs Office. About the recovery of Charas from that car although P.W. 3 has not said anything on this point but P.W. 7 has admitted that about fifty kilograms of Charas was recovered from that car in his presence. It is true that the aforesaid two witnesses have not supported the case of prosecution that the Fiat car was seized on 10.4.1997 but then, as stated above, from their contradictory statements, it is clear that these witnesses are not telling the truth and in this view of the matter, their evidence that three to four days prior to 10.4.1997, the car was seized cannot be believed. The argument of learned counsel for the appellants, that because seizure list witnesses are not fully supporting the case of prosecution on the point of date of seizure and one of them has not stated recovery of Charas from the seized car, the entire case of prosecution is liable to be discarded, is not acceptable to us. If the seizure list witnesses, for some reasons, do not support the case of prosecution, the entire case of prosecution cannot be disbelieved on this ground alone. It is true that remaining witnesses in this case are of Customs Department but then their evidence cannot be disbelieved for this reason and the only requirement is that their evidence requires more scrutiny and in case it is found that they are trustworthy, conviction can be based on their evidence. The learned counsel for the appellants has further submitted that evidence of complainant Ashish Kumar (P.W. 1) and Brajesh Kumar (P.W. 2), that from the crowd which had assembled at the place where the car was seized, two persons were called, in whose presence, search was made is false because seizure list witnesses P.Ws. 3 and 7 were not called from the crowd but they were driver and owner respectively of the vehicle which the customs officials were using. There is no evidence adduced on behlaf of the appellants that P.Ws. 3 and 7 were not called from the crowd but they were driver and owner respectively of the vehicle which the customs officials were using. There is no evidence adduced on behlaf of the appellants that P.Ws. 3 and 7 were driver and owner respectively of a jeep which was used by the customs officials on the day of seizure of car. For the sake of argument, if it be assumed that P.Ws. 3 and 7 were driver and owner of vehicle which was given to customs officials on hire for using in their duty on the day of occurrence even then it will not affect adversely the case of prosecution because these witnesses have not been found trustworthy. It has been further argued on behalf of the appellants that Kanhaiya Singh (P.W. 5), Customs constable, who is said to be a member of raiding party, in his evidence, has said that when the Fiat car was stopped by his party, a man came out from the vehicle and fled away which is not the case of prosecution. It is true that Kanhaiya Singh (P.W. 5) has said that a man came out from the car and fled away which does not find mention in the evidence of P.Ws. 1 and 2 but then P.W. 5 has admitted that all the three appellants were found sitting in the vehicle. In this view of the matter, so far appellants are concerned, there is no contradiction in the evidence of this and other prosecution witnesses on the point of finding the appellants seated in the car when it was stopped by the members of the prosecution party. 14. Learned counsel for the appellants has vehemently argued that the case of prosecution suffers from non-compliance of provisions of Section 50 of the Act. 14. Learned counsel for the appellants has vehemently argued that the case of prosecution suffers from non-compliance of provisions of Section 50 of the Act. Relying on the decisions of T. Hamza V/s. State of Kerala, 1999 (3) PLJR Supreme Court 10 and State of Punjab V/s. Baldev Singh (1999) 6 Supreme Court Cases 172, it has been submitted that the search of vehicle was made in presence of two witnesses and not before a Gazetted Officer or a Magistrate and the complainant, in his evidence, has said that before search, he enquired from appellants whether they wanted to go before a Magistrate or a Gazetted Officer or they would like the search before two independent witnesses and in this view of the matter, the appellants were not properly informed either orally or in writing about their right to be searched before a Gazetted Officer or a Magistrate because informant, giving option to appellants, introduced the theory of search before two independent witnesses which is against the provisions of Section 50 of the Act and this failure of noncompliance of Section 50 of the Act renders the alleged recovery of Charas illegal and vitiates the trial. In the case of T. Hamza vs. State of Kerala (supra), the decision in the case of State of Punjab vs. Baldev Singh has been relied on. In the present case, the evidence of complainant is that he informed the appellants about their right to be searched before a Gazetted Officer or a Magistrate and he also gave option to them for the search before two independent witnesses and on the desire of appellants, the search of their vehicle was made before two independent witnesses. Notwithstanding this fact, we find that the search in this case relates to search of a vehicle and not the search of the persons of the appellants and Section 50 of the Act is applicable in case of search of persons and not in case of search of premises, vehicles etc. Notwithstanding this fact, we find that the search in this case relates to search of a vehicle and not the search of the persons of the appellants and Section 50 of the Act is applicable in case of search of persons and not in case of search of premises, vehicles etc. In the decision of State of Punjab vs. Baldev Singh (supra), which has been relied on by the appellants, in para-12, it is clearly stated that : "On its plain reading, Section 50 would come into place in the case of search of a person as distinguished from search of any premises etc." So we do not find any force in this argument advanced on behalf of the appellants. 15 Shri Y.V. Giri has further argued that in this case there is complete failure of compliance of provisions of Section 42 of the Act. He has relied upon a decision in the case of Abdul Rashid Ibrahim Mansuri V/s. State of Gujarat, (2000) 2 Supreme Court Cases 513 and has argued that the case of prosecution is that the complainant received information through spy that Charas would be transported in a light vehicle but no evidence on behalf of prosecution has been adduced in order to show that this information was taken down in writing and copy of this information was sent to his immediate official superior. He has submitted that the conviction of appellants is bad on this ground also. In the aforesaid case, it has been held that non-compliance of provisions of Section 42 will not vitiate the trial on that score alone although it may be a case of causing prejudice to the accused. In the present case, facts are quite different. In the complaint petition itself, it is stated that in course of routine preventive checking, the complainant received a casual information that some car carrying Charas may pass through National Highway 28 between 8.30 hours to 12 hours and, thereafter, the complainant sent this information by phone to Assistant Commissioner, Customs, (Preventive) Division, Motihari. In his evidence also, complainant (P.W. 1.) has stated that on receipt of information, he passed it on by phone to Assistant Collector, Customs at Motihari. In his evidence also, complainant (P.W. 1.) has stated that on receipt of information, he passed it on by phone to Assistant Collector, Customs at Motihari. His evidence has been supported by P.W. 2 who, in his evidence, has said that after receipt of information, the complainant told him that the had received some information which he was he was going to pass on to Assistant Commissioner, Customs Motihari and, thereafter, the complainant went towards Gopalganj Market and fifteen minutes thereafter, he came back. The learned counsel for the appellants has argued that the case of prosecution is that while giving information to Assistant Collector (Preventive) Customs Motihari, the complainant asked for deputing any Superintendent of Customs at Gopalganj and this shows that sufficient time was available to complainant for recording the information in writing but it was not done. We fail to understand how on the basis of request of complainant to his superior officer for deputing another Customs Superintendent at Gopalganj because regular Customs Superintendent, Gopalganj was on leave at that time it can be said that complainant had sufficient time for recording the information when the case of prosecution is that while on preventive checking duty, the complainant received information that Charas would be transported in a light vehicle which would pass through National Highway 28 between 8.30 A.M. to 12 oclock in the noon and, thereafter, the complainant, passing this information to his superior officer, immediately joined his party and rushed to Devapur for keeping strict vigilance on all types of light vehicles passing through the road and at 9.30 hours, he found the vehicle in question coming from the side of Mohammadpur. In this short time, the complainant had already informed his superior officer about the information which he had received. Shri Rakesh Kumar, learned counsel for the respondent, felying upon a decision of Apex Court in the case of Sajan Abraham V/s. State of Kerala, (2001) 6 Supreme Court Cases 692, has submitted that if the compliance of mandatory provisions of any Act causes delay in apprehending the accused and that he may escape in the meantime, the strict compliance need not be insisted upon. We would like to quote the following observations of the Apex Court from para-6 of its aforesaid decision which are relevant to the facts of the present case : "In construing any fact to find, whether the prosecution has complied the mandate of any provision which is mandatory, one has to examine it with a pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature has made some of its provisions obligatory for the prosecution to comply with, which the Courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of the law. The Court, however, while construing such provisions strictly should not interpret them so literally so as to render their compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out." 16. Apart from evidence of prosecution witnesses, who have supported the case of prosecution fully, we find that there is statement of two appellants (Exhibits-4 to 4/1) in which they have admitted that they were carrying Charas in the vehicle which was seized by customs officials and on search, Charas was recovered from that vehicle. Shri Rakesh Kumar, learned counsel appearing on behalf of the respondent has argued that the aforesaid statement by appellants was given voluntarily and had been recorded under Section 107 of Customs Act and are admissible in evidence. We, therefore, find that the present case does not suffer from the noncompliance of provisions of Section 42 of the Act. 17. The learned counsel for the appellants has further argued that the appellants on 8.4.1997 were travelling in a truck and in the way when they got down from truck for taking tea, they were arrested by customs officials who released the real culprits who in fact were carrying the Charas in a Fiat car and got falsely implicated the appellants in the present case. He has further argued that so far statements of appellants recorded by customs officials which are marked Exhibits-4 to 4/2 in which the appellants are said to have confessed their guilt for carrying Charas in their car are concerned, these statements were not made voluntarily and in fact they were obtained from appellants after using third degree methods against them which has been stated by appellant Ram Chandra in his evidence who has been examined as D.W. 1. From the evidence of appellant Ram Chandra (D.W. 1), we find that he has said that he, alongwith the remaining two appellants, was coming from Gauhati on a truck and when the truck stopped at Devapur, he and other two appellants went to take tea where they found that customs officials had already seized a Fiat car on which two persons were already sitting and Customs Officers talked with those two persons and, therefore, those two persons come out of the car and Customs Officials put him and the other two appellants in the Fiat car and brought them to Gopalganj where they were kept confined in a room for three days and on 10th date at about 4 P.M., they were forwarded to Court and before that they were assaulted by customs Officials and their signatures were forcibly obtained on plain papers. He examined himself on 20.7.2000 whereas the occurrence is said to have taken place on 10.4.1997. There is no evidence on record on behalf of the appellants that before examination of appellant Ram Chandra as a witness in the Court on 20.7.2000, they had given any information to Court that their statements were not voluntary and after assault, they were forced to put their signatures and left thumb impression on plain papers. So the refraction of their confessional statements at a belated stage does not carry any weight. Here, we may point out that besides Charas, certificate of registration of vehicle and affidavit papers for buying and selling the vehicle were also recovered which is apparent from seizure memo marked Exhibit-1. The seizure memo shows that certificate of registration for the vehicle seized was in the name of one Rajendra Singh, son of Shri Phool Singh of the district-Hissar which is in Haryana province. All the three appellants, admittedly, belong to Haryana province and two of them, namely, Radhe Shyam Sharma and Ramphal Bairagi are residents of district-Hissar. The seizure memo shows that certificate of registration for the vehicle seized was in the name of one Rajendra Singh, son of Shri Phool Singh of the district-Hissar which is in Haryana province. All the three appellants, admittedly, belong to Haryana province and two of them, namely, Radhe Shyam Sharma and Ramphal Bairagi are residents of district-Hissar. If the case of defence, as given by appellant Ramchandra (D.W. 1) is accepted, it will rise to a situation that the Customs Officials had seized a Fiat vehicle bearing registration number of Haryana province and having registration certificate in the name of one Rajendra Prasad of district-Hissar in Haryana province and at the same time, they found the appellants standing on road and after, releasing the real culprits, falsely implicated the appellants in this case and incidentally appellants also belong to Haryana province. This concidence is rare and appears to be quite unusual. So, we do not find any merit in the case of defence that appellants have been falsely implicated in this case and the real culprits have been let off. 18. In the complaint petition, it has been stated that all the three appellants in their statements recorded under Section 107, Customs Act accepted their guilt of carrying the Charas in their vehicle. From the perusal of such statements of appellants, which have been marked Exhibits-4, 4/1 and 4/2 respectively, we find that so far appellants Radhe Shyam Sharma and Ram Chandra are concerned, they have no doubt accepted that it was within their knowledge that the Charas was kept concealed in the vehicle in which they were found sitting but so far appellant Ramphal Bairagi is concerned who, according to the case of prosecution, was found at wheel at the time of seizure of vehicle, in his statement (Exhibit-4/2) under Section 107, Customs Act, has not accepted that he had knowledge that the Charas was kept concealed in different parts of the vehicle which he was found driving. In his statement, he has said that he was brought by co-accused Nand Kumar from Haryana to Bihar on the pretext that Nand Kumar had to realise money which was due on account of a tractor and at Raxaul in Bihar. In his statement, he has said that he was brought by co-accused Nand Kumar from Haryana to Bihar on the pretext that Nand Kumar had to realise money which was due on account of a tractor and at Raxaul in Bihar. Nand Kumar left him and went to Birganj to meet some body there and after few days, Nand Kumar, with a man came and that man told Nand Kumar about goods and, thereafter, he (appellant Ramphal Bairagi) alongwith Nand Kumar went to a village where some other persons also came with whom Nand Kumar had some talks and, thereafter, he alongwith a man, was sent by Nand Kumar to a different place from where he returned after an hour and, thereafter, he, alongwith Nand Kumar, proceeded for Haryana but Nand Kumar, in the way, got down from vehicle and, thereafter, his vehicle was seized by Customs Officials. He has admitted that he, alongwith co-accused Nand Kumar, came from Haryana to Raxaul where Nand Kumar, leaving him behind, himself went to Birganj in Nepal and till the return of Nand Kumar, he himself remained in Raxaul and when Nand Kumar came with a man, they both talked about goods and, thereafter, he, alongwith them, went to a village where for an hour, he was sent somewhere else and, thereafter, he alongwith Nand Kumar, proceeded for Haryana by the vehicle which was subsequently seized. Perhaps, by stating that after return of Nand Kumar when he, alongwith him and the man who had come with Nand Kumar, went to a village from where he was sent to a different place for an hour, he wants to suggest that during his absence for this one hour, the Charas was kept concealed in different parts of the vehicle without his knowledge. When after the return of Nand Kumar from Nepal, he found him talking with another man about some goods even then he did not get any suspicion and he has not explained for what type of goods, Nand Kumar and that man, who had come with him, had talked with each other. Admittedly, Charas has been recovered from different parts of vehicle which this appellant was found driving. Admittedly, Charas has been recovered from different parts of vehicle which this appellant was found driving. Not only this, as per the case of prosecution, when Customs Officials gave a signal to stop the vehicle, he did not stop and tried to speed away the vehicle but after chase by Customs Officials, his vehicle was got stopped. Besides this, the vehicle had no number plate in its front portion. All these circustances indicate that this appellant was also fully knowing that Charas was kept concealed in different parts of vehicle. Since, he was found in possession of Charas kept concealed in the vehicle which he was driving, presumption of his committing offence is raised under Section 54 of the Act and merely his giving statement that for a period of one hour, he was away from his vehicle, it cannot be treated as proof of his such explanation. We, therefore, find that notwithstanding his denial of having knowledge of Charas in his vehicle in his statement recorded under Section 107, Customs Act, the prosecution has proved its case against him also alongwith two remaining appellants beyond all reasonable doubts. 19. In this case, all the appellants have been found guilty under Sections 22 and 23 of the Act and have been convicted and sentenced for both the offences. For the offence under Section 23 of the Act, we find that there is no evidence adduced on behalf of the prosecution that appellants imported the Charas from any place outside India. Appellants Radhe Shyam Sharma and Ram Chandra, in their statements (Exhibits-4 and 4/1) recorded under Section 107, Customs Act, no doubt have stated that they had come from Haryana to Raxaul in Bihar alongwith co-accused Nand Kumar who, leaving them at Raxaul, himself crossed the border and went to Nepal from there, after some days, he came back and delivery of Charas was taken in a village. They have not said that they had also gone to Nepal for bringing Charas. So, their statements show that Charas was brought from Nepal to India by co-accused Nand Kumar and not by any of the appellants. They have not said that they had also gone to Nepal for bringing Charas. So, their statements show that Charas was brought from Nepal to India by co-accused Nand Kumar and not by any of the appellants. Besides this, we find that while framing charge against the appellants, charge was framed in the form meant for framing charge under one head and in this charge, it was clearly stated that on 10.4.1997 at 9.30 hours at and near village-Devapur on National Highway 28, they were found carrying forty eight kilograms of Charas concealed in Fiat Car No. PNH 7491. Although after mentioning this gist of charge against the appellants, it is stated that their aforesaid act was in violation of the provisions of Section 8 of the Act punishable under Sections 22/23 of the Act but the gist of charge clearly shows that no charge under Section 23 of the Act was framed against them although Section 23, in the last line of the charge, has been added alongwith Section 22. Besides this, when the appellants were examined under Section 313, Code of Criminal Procedure, no question was put to them that they had imported the Charas to India from any other country. In this view of the matter, we find that so far conviction of appellants under Section 23 of the Act is concerned, that cannot be upheld in view of fact that neither any charge under this head was framed when the trial commenced nor question for this offence was put to them when they were examined under Section 313, Code of Criminal Procedure. But so far conviction of appellants under Section 22 of the Act is concerned, we find that prosecution has proved it beyond all reasonable doubts and we do not find any ground for interfering in the judgment of Court below with respect to this offence. So the conviction and sentence of appellants under Section 23 of the Act is set aside but their conviction and sentence under Section 22 of the Act is hereby confirmed. 20. In the result, this appeal, with the aforesaid modification, is dismissed. B.K.Jha, J. 21 I agree.