JUDGMENT Virender Singh, J. - By this judgment, we intend to dispose of three criminal appeals, i.e. Crl. Appeal No. 298-SB of 2000 (Pipal Singh v. Union of India through Inspector Custom, Ferozepur), Crl. Appeal No. 303-SB of 2000 (Satnam Singh v. Union of India through Inspector Customs, Ferozepur) and Crl. Appeal No. 324-SB of 2000 (Ajaib Singh and another v. Inspector Customs, Ferozepur), as all these appeals have arisen from a common judgment dated 12.6.2000 passed by Special Judge, Ferozepur, who convicted Ajaib Singh, Satnam Singh alias Satta and Gurmej Singh under Section 22 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the Act) and Pipal Singh under Section 23 of the Act. All the four appellants have been sentenced to undergo RI for fifteen years each and to pay a fine of Rs. 1 lac each. In default of payment of fine, each of the appellants to further undergo RI for one year. 2. The brief diary of the prosecution case is that a complaint was filed by Inspector Customs, Ferozepur in his official duty before the concerned Court on the allegations that on 6.1.1996, he received a secret information that brown powder i.e heroin of Pak origin was being transported from village Peer Berian, district Ferozepur. After the reciept of a secret information, a joint Naka of the officials of the Custom Department Ferozepur and the police officials was laid. The joint Naka party consisted of Sarvshri Sukhjinder Singh, Inspector Customs, Ferozepur, Rajinder Pal Inspector Police, Police Station Ferozepur, Kishori Lal and other police and custom officials. It was laid near Polytechnic College Ferozepur City when at about 9.30 P.M. on the said day, a truck bearing number DL-IG-3360 was seen coming towards Ferozepur City from the side of village Dulchi Ke and it was given signal to stop, but the driver of the truck speeded up. The second naka party had also given signal to the truck driver to stop the truck, but the driver did not care for it and, consequently the naka party had started firing in the air in order to get the truck stopped. It consequently stopped. It was then surrounded by police officials and the custom staff. Three persons, namely, Satnam Singh alias Satta, Ajaib Singh and Gurmej Singh (appellants) who were present in the said truck were apprehended at the spot. It consequently stopped. It was then surrounded by police officials and the custom staff. Three persons, namely, Satnam Singh alias Satta, Ajaib Singh and Gurmej Singh (appellants) who were present in the said truck were apprehended at the spot. Ajaib Singh appellant was found driving the truck, whereas Gurmej Singh and Satnam Singh were sitting in the said truck. Gurmej Singh was found to be the owner of the said truck. On search of the truck, a gunny bag was found placed in the cabin of the truck and, on search of the said gunny bag, 39 packets, each containing one kilogram of brown powder i.e. heroin, thus, totalling 39 kgs. 850 grams of brown power (said to be heroin) of Pak origin was recovered from the said truck. Four batches of 39 intact packets were made and the representative sample of the contraband was taken from each batch and another sample was taken from the loose packet of 850 grams (5th batch). The other legal formalities were also carried out at the spot. The entire case property, including the truck, was taken into possession by the custom authorities. 3. The case of the prosecution further is that statement of three appellants apprehended at the spot were recorded and all the three persons, namely, Ajaib Singh, Gurmej Singh and Satnam Singh (appellants) confessed in their statements in respect to the illegal possession and the transportation of the said contraband. The three appellants during the investigation of the present case stated in their statements before the custom officers that Pipal Singh (appellant) was one of their accomplices and is also involved in the transportation and is indulging in smuggling of the heroin. It was also stated by the three appellants that Pipal Singh had also got some link in Pakistan for carrying out this business of smuggling into India. It was also disclosed by the said three appellants before the custom authorities that the brown powder (heroin) being smuggled by them was, in fact, of one Pargat Singh of village Naushara Dhalla of Amritsar district and the same was to be taken to Amritsar for further delivering it to one Harjinder Singh of Hoshiarpur. The detailed statements of three appellants confessing their involvement in this type of business were recorded by the custom officials. 4. The detailed statements of three appellants confessing their involvement in this type of business were recorded by the custom officials. 4. It is worth mentioning here that on 24.1.1996 an application was moved by the Custom Officer Ferozepur under Section 104 of the Custom Act before the Duty Magistrate, Ferozepur for permission to arrest Pipal Singh appellant and, consequently after obtaining the warrants of arrest, Pipal Singh appellant was arrested. During his interrogation, he also made a statement before the Custom Officer on 25.1.1996 and 26.1.1996 that he was involved in the transportation of the heroin allegedly recovered from the other three appellants. He also admitted that one person of Pakistan known as "Kali" had links with him and he had supplied the said packets to him. The case of the custom department is that they made all the efforts to arrest Pargat Singh of Amritsar and Harjinder Singh of Hoshiarpur, but incidently, they could not be arrested, as the addresses furnished by the present appellants were not found to be correct. After the committal proceedings by Chief Judicial Magistrate, Ferozepur, the present case was heard by Special Judge and all the appellants were charge-sheeted under Sections 22, 23 and 24 of the Act. On a consideration of entire evidence, the Special Judge has convicted and sentenced all the four appellants as indicated above. 5. Aggrieved with the impugned judgment of conviction and sentence, the four appellants have preferred the three present appeals. 6. We have heard Mr. S.C. Chhabra, learned counsel for Pipal Singh and Satnam Singh appellants and Shri Vikram Chaudhary, learned counsel for Ajaib Singh and Gurmej Singh appellants. The entire evidence recorded by the trial Court and the other relevant documents have also been perused by us minutely with the assistance of both the counsel. Sadly enough the Union of India goes unrepresented and no assistance is rendered to us on its behalf. 7. In order to prove the case of the prosecution, the complainant examined Sukhjinder Singh, Superintendent (PW1), S.C. Duggal, Superintendent (PW2), Sudarshan Kumar, Superintendent (PW3) and Raghbir Singh Chahal, D.S.P. (PW4). We have scanned their statements carefully. 8. The defence set up by the appellants is that they were lifted from their houses by the custom and police officials and were falsely implicated in this case. The statements of the defence witnesses have also been seen by us. 9. We have scanned their statements carefully. 8. The defence set up by the appellants is that they were lifted from their houses by the custom and police officials and were falsely implicated in this case. The statements of the defence witnesses have also been seen by us. 9. At the very outset, it has been strenuously argued by the learned counsel for all the four appellants that the prosecution is not clear about the manner in which the samples were taken from the packets allegedly recovered. So much so, even the complaint initially filed in the Court is silent in this regard. Developing their arguments on this count, it has further been submitted that the evidence of star witnesses of recovery are most discrepant and, if seen in the light of the report of the Analyst (Ex.P.21), it would go to show that nothing had happened at the spot as alleged by the prosecution and instead, would strengthen the defence of the appellants duly supported by documentary evidence in the shape of telegram that they were lifted from their residences and were subsequently implicated in the present case by the Custom Department. 10. Learned counsel for the appellants have taken us through the statements of Sukhjinder Singh, Superintendent, Central Excise (PW1); S.C. Duggal, Superintendent, Central Excise (PW2) and Raghbir Singh Chahal, D.S.P. Hoshiarpur (PW4) and pointed out the discrepancies crept in their statements. It is vehemently contended that according to Sukhjinder Singh (PW1), 39 packets of 1 kg. each (intact packets) were divided into four batches, three batches for ten packets and the fourth batch for nine packets and the 40th packet recovered (loose packet) containing about 850 grams of brown powder was kept separate in the shape of fifth batch and, thereafter, ten grams of heroin was taken out as sample from each batch. According to S.C. Duggal (PW2) also, five batches were prepared, including the batch relating to the loose packet. Raghbir Singh Chahal (PW4) on the other hand, has stated that from each intact packet, one gram of heroin was extracted as sample, whereas from the loose packet, ten grams of heroin (brown powder) was extracted. Taking all these discrepancies as very material for the purposes of the decision, the learned counsel pointed out towards the report of the Chemical Examiner Ex.P.21, according to which, the gross weight of the sample is found to be much more. Taking all these discrepancies as very material for the purposes of the decision, the learned counsel pointed out towards the report of the Chemical Examiner Ex.P.21, according to which, the gross weight of the sample is found to be much more. It is, thus, argued that even in the original complaint or in the evidence adduced, the prosecution is not clear about the manner of taking the sample at the spot and this basic lacuna has shattered the case of the prosecution in its entirety. 11. The second argument advanced on merits of the case on behalf of the appellants was that the prosecution story is most doubtful, rather unbelievable because the police and the custom department, as alleged by the prosecution, received a secret information that heroin is being smuggled into India from Pakistan and would be transported from Ferozepur to Amritsar. The truck bearing registration No. DL-IG-3360 as per the prosecution case, was stopped at about 9.30 P.M. on 6.1.1996 and, as such, its search was conducted during night time and after sun set and before sun rise, but no search warrants were obtained and this amounts to non-compliance of the provisions of Section 42 of the Act and the case of the prosecution is liable to be thrown out on this score only. In this context, learned counsel for the appellants have relied upon the judgment of the Apex Court rendered in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000(1) RCR(Criminal) 611 (SC). 12. Stressing mainly on the above-said two lacunae in the prosecution case, learned counsel have also pointed out certain minor discrepancies in the prosecution case half-heartedly and, as such, we are not entering into detailed discussion on that aspect. 13. On behalf of Pipal Singh appellant only, it is then contended by Mr. Chhabra, learned counsel that the case of Pipal Singh can otherwise be segregated from his other three co-accused because according to the prosecution story itself, he was not apprehended at the spot and was arrested subsequently after obtaining the warrants of arrest from the concerned Court when Ajaib Singh, Gurmej Singh and Satnam Singh appellants had made their separate statements to the custom officials to the effect that he (Pipal Singh) was also one of their accomplice in their trade. It is further argued by Mr. It is further argued by Mr. Chhabra that so-called statements allegedly made by Pipal Singh appellant before the custom authorities on 25.1.1996 and 26.1.1996 are not free from doubt. May be, these statements are legally admissible but the possibility of duress and coercion at the hands of the custom officials cannot be ruled out. These statements are, thus, not worthy of any credence being uncorroborated by other link evidence against Pipal Singh. Thus, according to Mr. Chhabra, he deserves acquittal. 14. Lastly on the quantum of sentence for all the appellants, it is submitted that the sentence of fifteen years as awarded by the Special Judge is too severe and their case calls for reduction in the sentence, especially when three appellants, namely, Ajaib Singh, Gurmej Singh and Satnam Singh are in custody since 6.1.1996 and have already faced the rigor of long seven years. 15. The first submission raised by learned counsel for the appellants that the prosecution is not clear about the manner of taking sample does not appeal to us to all. It is the specific case of the prosecution that in the recovery, 39 intact packets of 1 kg. each and one packet loose (850 grams) of brown powder (heroin as per the report) were recovered from three appellants, namely, Ajaib Singh, Gurmej Singh and Satnam Singh from their truck in which they were travelling. Five batches were prepared viz. for ten packets one batch each (in all three batches) for remaining nine intact packets (fourth batch) and for the loose packet containing 850 grams of brown powder (fifth batch) and, therefore, five sample were extracted containing some powder from each batch. May be, as pointed out, that there are certain discrepancies in the statements of the official witnesses of recovery regarding the preparation of the batches and extracting of sample, but it would not raise any cloud of doubt over the alleged recovery if the report Ex.P.21 is seen minutely. The perusal of the report shows that the Chemical Examiner has received five samples mark as "51, 52, 53, 54 and 55" and the gross weight of all the samples, including the plastic bag, was different. Almost similar quantity was taken out from each of the samples for analysis and then the gross weight along with plastic bag of the remnant samples was weighed. Almost similar quantity was taken out from each of the samples for analysis and then the gross weight along with plastic bag of the remnant samples was weighed. For reference in this context, FSL Report is reproduced as under : F.No. 1/ND/D/96 CLD 51 and 55 (NAR) Dated 25.1.1996. REPORT (Admissible under section 293 Criminal Procedure Code 1973) Each of the five samples is in the form of brown powder. Each answers positive test for Diacetyl morphine (Heroin) LD No. Sple. No. % Diacetyl Morphine Gross weight of sample received (alongwith plastic bag) Gross weight of remnant sample (alongwith plastic bag) returned herewith. 1 (NAR) 1/5 62.0 (Sixty-two decimal zero) 13.6 gm 11.8 gm. 2 (NAR) 2/5 54.2 (Fifty-four decimal two) 20.8 gm 19.0 gm. 3 (NAR) 3/5 59.5 (Fifty-nine decimal five) 9.1 gm 7.4 gm. 4 (NAR) 4/5 50.3 (Fifty decimal three) 18.0 gm 16.5 gm. 5 (NAR) 5/5 56.6 (Fifty-six decimal six) 22.9 gm 21.1 gm. 16. We do not find any major lacuna in the manner of taking the samples and, thus, in the light of the above situation, the argument advanced by the learned counsel for the appellants does not hold water and is hereby rejected. So far as the second contention with regard to non-compliance of the provisions of Section 42 of the Act is concerned, we are also not convinced with this submission as, in our opinion, this is a seizure under Section 43 of the Act and not under Section 42 of the Act. Admittedly, the present seizure relates to a public place and, therefore, it was not obligatory on the part of the Investigating Officer or other police officials who received the secret information to reduce the said information into writing. This point also came up for consideration before this Court recently and it was answered in Dharminder Kumar v. State of Punjab, 2002(4) RCR(Criminal) 278 observing that if a recovery of contraband has been effected from a conveyance (truck) intercepted at the public place on receipt of a secret information, Section 42 would not apply but Section 43 of the Act would apply. It was further observed that the word "conveyance" used in Section 42 will mean a conveyance which is not at public place. This point has also been settled by the Apex Court in Narayanaswamy Ravishanker v. Asstt. It was further observed that the word "conveyance" used in Section 42 will mean a conveyance which is not at public place. This point has also been settled by the Apex Court in Narayanaswamy Ravishanker v. Asstt. Director, 2002(4) RCR(Criminal) 470 (SC) wherein it was held that the seizure of contraband allegedly made from the accused at Airport which is a public place, provisions of Section 43 of the Act are applied and not Section 42 of the Act. A similar view has also been taken in the latest judgment of this Court rendered in Crl. Appeal No. 258-DB of 2002 (Tarlochan Singh v. The Assistant Commissioner, Customs), decided on 3.12.2002. In the present case, a secret information was received by the custom officials that a truck bearing No. DL-IG-3360 was carrying brown powder i.e heroin and the same was stopped and checked at a public place after holding a joint Naka. Thus, the argument advanced by learned counsel for the appellants on this count carries no weight and would not render any help. Assuming for the sake of arguments that even if the provisions of Section 42 are applicable, as submitted by learned counsel for the appellants, even they till any prejudice is shown to have been caused to the appellant in not complying with the provisions of Section 42, the appellants cannot derive any benefit. Even in Abdul Rashid Ibrahim Mansuris case (supra), their Lordships have held that non-complince with the provisions of Section 42(1) would not vitiate the trial on that score alone but it would cause prejudice to the accused. In the present case, if all the circumstance of the case are taken collectively, we are of the view that no prejudice is caused to the accused. 17. The compliance of the provisions of Section 42 of the Act can be seen from another angle in the light of the observations made by their Lordships in Sajan Abraham v. State of Kerala, 2001(3) RCR(Criminal) 808 in which their Lordships have held that the prosecution case cannot be thrown out due to non-compliance of the mandatory provisions of Section 42 in a situation that if the mandate is followed strictly, it would result in delay in trapping the accused and would lead the accused to escape. For the sake of repetition, in the present case the custom officials/police officials had to hold a Naka the moment they got a secret information that heroin worth lacs, of other country (Pak origin) was being smuggled and transported into India. The compliance of the provisions of Section 42, if any, in this case, would have delayed the trapping and, in the eventuality, the culprits would have escaped in the truck along with the contraband. 18. So far as the case of Pipal Singh appellant is concerned, we find force in the arguments advanced by Mr. Chhabra. Admittedly, he was not nabbed at the spot along with his three co-accused, namely, Ajaib Singh, Gurmej Singh and Satnam Singh. No recovery had been effected from him. He was subsequently arrested through warrants of arrest obtained from the concerned Court after his co-accused had made statements before the custom officials showing his involvement along with them. So far as the statements before dated 25.1.1996 and 26.1.1996 made by Pipal Singh appellant are concerned, we are of the view that those statements are not free from doubt, as he was in the custody of custom officials and the possibility of duress or correction at the hands of the custom officials cannot be ruled out. Beyond this, the prosecution has no evidence worth the name to link Pipal Singh appellant with the alleged recovery of contraband. The statements recorded under Section 108 of Custom Act, 1962 although is admissible piece of evidence, but cannot be enough in its individual characteristics to record a conviction. Consequently, extending the benefit of doubt in the case of Pipal Singh appellant, we acquit him of the charge framed against him under Section 23 of the Act. 19. The conviction of Ajaib Singh son of Pritam Singh, Gurmej Singh son of Pritam Singh and Satnam Singh son of Mohan Singh as recorded by the Special Judge, Ferozepur, is hereby maintained by us. 20. So far as the quantum of sentence is concerned, we feel that the above- said three appellants, namely, Ajaib Singh, Gurmej Singh and Satnam Singh does deserve some leniency. The appellants have been sentenced to undergo RI for fifteen years each and to pay a fine of rupees one lac each under Section 22 of the Act. In default of payment of fine to further undergo RI for one year each. The appellants have been sentenced to undergo RI for fifteen years each and to pay a fine of rupees one lac each under Section 22 of the Act. In default of payment of fine to further undergo RI for one year each. Taking all the factors into consideration, we feel that the ends of justice would be met if the sentence of fifteen years imposed upon Ajaib Singh, Gurmej Singh and Satnam Singh appellants is reduced to ten years each with a fine of rupees one lac each. We also reduce the period of one year to three months in case of each of the three appellants in default of payment of fine. It is ordered accordingly. Appeal dismissed.