Judgment :- 1. The Criminal Appeal has been filed against the judgment dated 09.02.2004 rendered in C.C.No.114 of 1998 by the learned Special Judge, Essential Commodities Act, Thanjavur. 2. The case of prosecution briefly is as follows: (a) P.W.1is the Inspector of Customs at Tiruchirapalli. He received an information on 06.03.1989 that Narcotic Drugs are being transported from Tiruchirapalli and that the vehicle must be intercepted and searched. Then, he informed the same to P.W.3, Superintendent of Customs and Excise, Tiruchirapalli in writing. P.W.1 and P.W.2, the Inspector of Customs and one Boopathy, Inspector of Customs proceeded in their office car and reached near Valambakkudi Village situated at Tiruchi – Tanjore Main Road. (b) One Suzuki Motor cycle without number plate, came from Tiruchirapalli. P.Ws.1 and 2 had given signal to stop. But, that motor cycle did not respond to the signal and went fast. So, P.Ws.1, Inspector of customs and Boopathy had chased the Suzuki motor cycle and intercepted the same near Sanoorappatty Mela Colony. The pillion rider was identified as Gangakumar. He had a whiter coloured cloth bag. P.Ws.1 and 2 and Boopathy searched the bag in the presence of P.W.4 Govindaraj and one Iqbal. On search, they found 24 polythene packets each containing Opium. There was no facility to test that substance and to weight the same a detention mahazar was prepared by P.W.2 in the presence of P.W.4 Gopal. Detention Mahazar is Ex.P.1. The vehicle was driven by Sivanesan. The signature of Gangakumar and Sivanesan were obtained in Ex.P.1. Then, P.Ws.1 to 3 had taken the Sivanesan and Gangakumar along with white bag and TVS suzuki to Customs Office, Trichirapalli. (c) Then, P.W.1 and P.W.2 had opened and examined the 24 packets in the presence of P.W.3 Gandhidass, Customs Superintendent, P.W.7 Assistant Collector, Customs and Central Excise and two other independent witnesses namely P.W.5 Murugesan goldsmith and P.W.6 Mohammed Shafi. At that time Gangakumar and Sivanesan were also present. They found it was Opium. (d) The above said article was weighed in the office scale the substance in each packer was found to be 960 grams. The total weight of the seized incriminating article was found to be 23.040 Kgs. Out of 24 packets 10 grams of sample was drawn from each packet. It was weighted by P.W.5 goldsmith. They found it was Opium. (d) The above said article was weighed in the office scale the substance in each packer was found to be 960 grams. The total weight of the seized incriminating article was found to be 23.040 Kgs. Out of 24 packets 10 grams of sample was drawn from each packet. It was weighted by P.W.5 goldsmith. The above said 240 grams of opium was mixed homogeneously and divided into four parts each containing 60 grams. The samples were M.Os.1 to 4. (e) The samples were packed as per rules and it was sealed of P.W.7. Then TVS Suzuki motor cycle, 24 packers of opium weighing 23.040 grams along with white bag were seized under a seizure mahazar in the presence of P.Ws.5 and 6. The market value of the seized contraband article is Rs.1,15,000/-. The market value of the seized two wheeler is Rs.15,000/-. The seizure mahazar is Ex.P.2 and it was signed by P.Ws.1 to 3, 7, Sivanesan and Gangakumar. Then the seized articles were entrusted with the Trichy Central Excise Department Retail shop for safe custody. The form prepared for the entrustment of seized articles was marked as Ex.P.10. The test memo prepared by P.W.7 was marked as Ex.P.11. M.O.6 is the TVS suzuki motor cycle (without number plate). (f) Investigation was taken up by P.W.3. He examined Sivanesan and recorded his statement as Ex.P.3. Boopathy, the customs Inspector examined Gangakumar in the presence of P.Ws.3 and 9 and recorded his statement as Ex.P.4. P.W.3 arrested Gangakumar and Sivanesan. The memorandum of arrest are Exs.P.5 and 6 respectively and they were sent to judicial custody. P.W.3 examined one Thiruvalluvar who had hired the vehicle to Sivanesan and Gangakumar and recorded his statement as Ex.P.7. Sivanesan and Gangakumar gave statements as Exs.P.8 and 9 voluntarily. Then, P.W.7 informed his superior viz., Additional Commissioner about the incriminating articles and the proceedings of the case. (g) P.W.7 gave a requisition Ex.P.12 to Chennai Customs house for the examination of samples. The acknowledgment is Ex.P.13. P.W.8, chemical examiner examined the samples and gave a report Ex.P.14. His report discloses that the samples are opium contained 1.7% and 1.8% of morphine. He was also of the opinion that the samples was in the form of black coloured mass and each was opium under the N.D.P.S.Act 1985. The acknowledgment is Ex.P.13. P.W.8, chemical examiner examined the samples and gave a report Ex.P.14. His report discloses that the samples are opium contained 1.7% and 1.8% of morphine. He was also of the opinion that the samples was in the form of black coloured mass and each was opium under the N.D.P.S.Act 1985. (h) Then, P.W.7, Kalingaraj, prepared a complaint and sent the same with a report under Ex.P.15 to Court. Articles were sent to Judicial Magistrate No.III, Thanjavur under Ex.P.16 and 17, deposit memo. The learned Judicial Magistrate had taken pre-Trial disposal proceedings under Section 52-A (2) of N.D.P.S. Act 1985. During that proceedings photographs were also taken on the incriminating articles. The photographs negatives and the samples of incriminating articles were marked as M.Os. 7 to 33. 3. In order to bring home the offence alleged against the accused, before trial Court, P.Ws.1 to 10 and Exs.P.1 to 21. M.Os. 1 to 33 were also marked. On completion of the examination of witnesses on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied them as false. They filed a written statements under Section 314 of Cr.P.C. The accused called no witness on behalf of their side. 4. On consideration of the evidence on record, learned Special Judge for Essential Commodities Act, Thanjavur found both the accused guilty under Section 8(c) read with 29(1) of N.D.P.S. Act 1985 and sentenced each of the accused to undergo 10 years rigorous imprisonment and to pay a fine of 1,00,000/- each in default to undergo rigorous imprisonment for three years and found first accused guilty under Section 8(c) read with 21 of N.D.P.S. Act 1985 and sentenced him to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1,00,000/-in default to undergo three years rigorous imprisonment. 5. Challenging the said judgment, the accused have filed this Criminal Appeal. 6. The point for consideration is: "Whether the prosecution has proved its case beyond reasonable doubt?" 7. The point: P.W.1 is the Inspector, Central Excise and Customs office, Tiruchirapalli. P.W.2 is also Inspector of Customs. P.W.3 was the Superintendent of Central Excise and Customs. On 06.03.1989, P.W.1 received a message about the transportation of Narcotic Drugs. He informed the message to P.W.3. The point: P.W.1 is the Inspector, Central Excise and Customs office, Tiruchirapalli. P.W.2 is also Inspector of Customs. P.W.3 was the Superintendent of Central Excise and Customs. On 06.03.1989, P.W.1 received a message about the transportation of Narcotic Drugs. He informed the message to P.W.3. According to the prosecution, a two wheeler viz., TVS Suzuki motor cycle without number plate was coming near Valambakkudi Village and they found two persons namely Sivanesan and Gangakumar. P.Ws.1 and 2 searched them and found 24 contraband bags which containing opium. Thereafter, the prosecution claimed that they had taken action against the Sivanesan and Gangakumar. The above said Sivanesan and Gangakumar absconded and on the basis of statements given by them, the present appellants were implicated and were shown as accused in this case. 8. Learned senior counsel for the appellants has said that the provisions of N.D.P.S. Act was not observed. According to him, the report under 42(2) of the Act was not complied with. Section 42(2) reads as follows: Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. But in this case, the said report was not sent to superior officials. 9. Learned Special Public Prosecutor argued that Section 42 will not attract this case. Because seizure was done in Public place. So, any search and arrest in public place would not attract Section 42. To strengthen his case, he relied on the decision in State of Haryana Vs. Jarnail Singh and Others reported in 2004 SAR (Criminal) 535 and argued that any search and arrest in public Highway would not attract Section 42. In that case, a tanker was moving in public Highway and it was stopped and searched. The Hon’ble Supreme Court found that Section 43 would apply to the case. In this case also, motor cycle was stopped in a Highway and it was searched. In the light of the above decision, a search in public place would not attract Section 42(2). So, the submission raised by the defence that it was non compliance of Section 42 is not acceptable. 10. Learned senior counsel for the appellants raised a doubt about the seizure and the packing of the contraband bags. In the light of the above decision, a search in public place would not attract Section 42(2). So, the submission raised by the defence that it was non compliance of Section 42 is not acceptable. 10. Learned senior counsel for the appellants raised a doubt about the seizure and the packing of the contraband bags. P.W.1, Inspector of Customs claimed that in the packets, seal of P.W.2, Prabhakaran, Inspector of Customs was affixed. But, on the contrary, P.W.2, Prabhakaran said that the seal of Kalingaraj(P.W.7), Assistant Collector of Customs was affixed in the packets. So, there is contradiction in the evidence of P.Ws.1 and 2 about whose seal was affixed in the packets. If really, the seal was affixed in the scene of occurrence, evidence would be consistent. But, their evidence is not definite about the seal which was affixed in scene of occurrence. This also weakens the case of prosecution. 11. Another ground of attack is that the confession statement of co-accused was a weak and fragile evidence. Learned counsel relied on Section 30 of the Evidence Act and argued vehemently that the evidence of co-accused can be relied on only when the case is jointly tried by the other accused i.e., Sivanesan and Gangakumar. 12. In this case, they were not tried jointly. Section 30 of the Evidence Act reads as follows: Consideration of proved confession affecting person making it and others jointly under trial for same offence: When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. So, as per Section 30, there must be joint trial of the co-accused. But in the case, Gangakumar, Sivanesan were not tried jointly. So, the provision of Section 30 of Evidence Act is a bar and it will affect the case of prosecution. 13. Learned Special Public Prosecutor vehemently argued that the confession statement of co-accused is binding. For this, he relied on the decision in Devender Pal Singh Vs. State N.C.T. Of Delhi and another reported in 2002 SAR (Criminal) 298 and argued that the confession statement of the co-accused can be relied on. 14. No doubt in Gulam Hussain Shaikh Chougule Vs. Learned Special Public Prosecutor vehemently argued that the confession statement of co-accused is binding. For this, he relied on the decision in Devender Pal Singh Vs. State N.C.T. Of Delhi and another reported in 2002 SAR (Criminal) 298 and argued that the confession statement of the co-accused can be relied on. 14. No doubt in Gulam Hussain Shaikh Chougule Vs. S. Reynolds, Superintendent of Customs, Marmgoa reported in 2002 SAR (Criminal) 25 also, the Hon’ble Supreme Court held that the statements recorded under Customs Act, can be taken into consideration. In this case also, the statements of accused were recorded. A perusal of above judgment would show that the confession statement must be voluntarily. In this case, the confession was retracted immediately on the next day. 15. Learned Special Public Prosecutor said that the accused is an illiterate. He is not an educated person. But, retracted statement was given in English. So, he sought the advice of the legal advisor. The learned Special Public Prosecutor also relied on a decision in Parmananda Pegu Vs. State of Assam reported in 2004 Supreme Court Cases (Cri) 2081 and argued that the confession statement of the accused can be relied on. In this case, the Hon’ble Supreme Court held that the confession statement made voluntarily, free from threat and inducement, can be regarded as presumptive evidence of its truth. Still, there may be circumstances to indicate that the confession cannot be true wholly or partly in which case it loses much of its evidentiary value. Corroboration need not be in respect of each and every material particular but it should be such that taken as a whole it should fit into the facts proved by other evidence. As per the decision of above judgment, the confession must be true and voluntarily one. In this case, the accused filed 314 Cr.P.C statements and they retracted the confession statement on the next day. 16. According to the prosecution, since the retracted statement was prepared by legal advisor it cannot be a ground to throw away the case of prosecution. For this, the learned senior counsel relied on the decision in Harbhajan Singh Vs. State of Punjab and another reported in AIR 1966 Supreme Court 97 and argued that any distrust of legal advice would be entirely unjustified. For this, the learned senior counsel relied on the decision in Harbhajan Singh Vs. State of Punjab and another reported in AIR 1966 Supreme Court 97 and argued that any distrust of legal advice would be entirely unjustified. In this case also, a plea was raised that legal advice was obtained and it was turned out by the Hon’ble Supreme Court, the accused filed written statement. So getting a legal advise from a lawyer is not a bar to reject the evidentiary value of retracted confession statement. Though he obtained the legal advice as per the decision of the Hon’ble Supreme Court, it can not be thrown away. But, in this case at the earliest possible time, the confession statement was retracted. 17. In Francis Stanly alias Stalin V. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram reported in AIR 2007 Supreme Court 794, the Hon’ble Supreme Court had considered that the rule of prudence required that the evidentiary value of accomplice should ordinarily be corroborated by some other evidence. 18. In AIR 1979 SC 1761 , it has been held as follows: "Equally well settled that one tainted evidence cannot corroborate another tainted evidence because if this is allowed to be done then the very necessity of corroboration is frustrated. An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious taint in his evidence and Court are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. 19. In Prakash Kumar @ Prakash Bhutto V. State of Gujarat reported in 2007 CRI.L.J.2731, the Hon’ble Supreme Court observed that the confession of a co-accused by itself is not sufficient to hold the other accused guilty. It has been held repeatedly by the Hon’ble Supreme Court that the confession of a co-accused is a fragile and feeble type of evidence and it could only be used to support the other evidence, if any, adduced by the prosecution. 20. So, in the light of the above decision, confession of co-accused is not sufficient to hold the other accused guilty. The learned senior counsel pointed out that the statement given by Gangakumar and Sivanesan is a tainted one. 21. 20. So, in the light of the above decision, confession of co-accused is not sufficient to hold the other accused guilty. The learned senior counsel pointed out that the statement given by Gangakumar and Sivanesan is a tainted one. 21. In this case also the accused herein retracted the confession statements at the earliest point of time as it is not a voluntary one. So that cannot be a ground for conviction. Since the case was not jointly tried along with other accused, Section 30 of the Evidence Act is a bar. Further prosecution is unable to show any independent evidence to corroborate the confession statements of accused. In the absence of material corroborated, acceptable evidence on record, it is not possible to rely on the confession statement of the co-accused to prove the case of prosecution. Hence, it is a retracted confession statement, it is not enough to convict the accused on the basis of confession statements. 22. Hence the confession statement is not helpful to the prosecution. Another defence is that the property was seized and it was sent to Court after a long time and it was sent after 60 days to the chemical analysis laboratory. 23. The learned senior counsel relied on various decisions held by Hon’ble Supreme Court and argued that the sample was sent belatedly and creates a doubt. No doubt in this case, samples was not sent to chemical analysis through Court. A person who carried sample to forensic lab also was not examined. This also weakened the case of prosecution. On careful consideration, I find that the prosecution has failed to prove the case satisfactorily. 24. With the above observations, the appeal is allowed and the conviction and sentence imposed on the appellants by the trial Court in its judgment dated 09.02.2004 made in C.C.No.114 of 1998 is set aside and the appellants are acquitted of all the charges levelled against them. The appellants are directed to be released forthwith if they are not required in connection with any other case. The fine amount, if any, paid by the appellants, shall be refunded to them. The bail bonds, if any, executed by them, shall stand cancelled.