Judgment :- These criminal appeals have been directed against the conviction and sentence dated 14.02.2005 passed in Calendar Case No.652 of 2001 by the Special Court (for EC & NDPS Act cases), Pudukottai. 2. The epitome of the prosecution case can be stated like thus; The first accused has gone to Karambiam Village so as to see the accused 2 & 3. The accused 2 & 3 have told the first accused that one Vethamurthi is having brown sugar and the accused 2 & 3 have also told the first accused that on 05.07.2001 they will come to Tiruchirapalli so as to sell brown sugar and accordingly, on 06.07.2001 all the accused have been found in Karumandabam Jaya Nagar First Street. The first accused has been found in possession of two brown-sugar packets (weighing of 1.020 Kilograms) and under the said circumstances, all the accused are said to have committed offences under Sections 8(c) read with 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. The prosecuting agency after conducting investigation, has laid a final report on the file of the trial Court. The trial Court, on the basis of the accusation made against the accused, has framed a charge under the said Sections and the same has been read over and explained to them. The accused have denied the charge and claimed to be tried. 4. On the side of the prosecution, PWs.1 to 6 have been examined and Exs.P1 to P31 and MOs.1 to 8 have been marked. When the accused have been questioned under Section 313 of the Code of Criminal Procedure, as respects the incriminating circumstances appearing in evidence against them, they denied their complicity in the crime. However no oral and documentary evidence have been adduced on the side of the accused. 5. After Per pending the evidence available on record, the trial Court has found all the accused guilty under Section 8(c) read with 21(c) read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and ultimately sentenced them to undergo twelve years rigorous imprisonment and also imposed a fine of Rs.1,00,000/- upon each accused with default clause. Against the conviction and sentence passed by the trial Court, the first and second accused have preferred Criminal Appeal No.118 of 2005 and the third accused has preferred Criminal Appeal No.517 of 2005. 6. Against the conviction and sentence passed by the trial Court, the first and second accused have preferred Criminal Appeal No.118 of 2005 and the third accused has preferred Criminal Appeal No.517 of 2005. 6. Since common questions of law and facts are involved in both the appeals, common judgment is pronounced. 7. The specific contention urged on the side of the prosecution is that on 06.07.2001 all the accused have been found in Karumandabam Jaya Nagar First Street, Tiruchirapalli and the first accused has been in possession of two brown sugar packets weighing 1.020 kilograms and under the said circumstances, all the accused are said to have committed offence mentioned in the charge. 8. Before contemplating the rival submissions made by either counsel, it has become shunless to find out as to whether the prosecution has established the guilt of the accused under Sections 8(c) read with 21(c) read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 9. The Superintendent of Customs (CIU), Tiruchirapalli by name Jebaraj Rajkumar has been examined as PW1. He has stated in his evidence that on 06.07.2001 he served as Superintendent of Customs (CIU) in Tiruchirapalli and on the same day, he received a secret information to the effect that the accused are in possession of Narcotic Drugs and Psychotropic Substances and the secret information has been reduced into writing and subsequently informed to the higher-up and the same has been marked as Ex.P1 and thereafter, he and others have gone to Pakhaaibhavan Bhavan and found all the accused and all the accused have been enquired into and they told their names and he has introduced himself to the accused and told that he is going to inspect them. He has also informed to the accused that they can be inspected in the presence of any Gazetted Officer or Judicial Magistrate and all the accused have expressed their unstinted willingness that PW1 can inspect them and accordingly, PW1 has inspected the second and third accused and nothing has been found out from them. Before inspecting the first accused, he himself produced a yellow colour Polythene bag and the same has been marked as MO.1 and MO.1 has been inspected in the presence of witnesses and the same contained two packets of brown-sugar, each weighing 510 gram. Before inspecting the first accused, he himself produced a yellow colour Polythene bag and the same has been marked as MO.1 and MO.1 has been inspected in the presence of witnesses and the same contained two packets of brown-sugar, each weighing 510 gram. PW1 has examined the powder and ultimately found that the same is morphine and each packet has been separately marked. PW1 has further stated that he has taken 5.5 grams from each packet for chemical analysis. After preparing mahazar viz., Ex.P2, the accused have been enquired under the Narcotic Drugs and Psychotropic Substances Act, 1985 and the accused have given separate confessions statement and the same have been marked as Exs.P3 to P5. Since the accused have explicitly admitted their guilt, they have been arrested and produced before the concerned Magistrate Court, Tiruchirpalli. The arrest memo has been marked as Ex.P6 and after observing all legal formalities, the samples have been sent to chemical analysis and after completing investigation, he laid a final report. 10. One Moses has been examined as PW2. He has stated in his evidence that on 06.07.2001 he, PW1 and others have gone to the place of occurrence and PW1 has checked all the accused and found that the third accused is in possession of two packets of brown sugar and before searching the accused, they have been told that search can be made either in the presence of a Gazetted Officer or in the presence of a Judicial Magistrate and all the accused have categorically stated that PW1 can conduct search. Further he has stated that PW1 has examined packets which have been recovered from the third accused and ultimately found that the same is morphine and PW1 has taken 5.5 gram samples from each packet for chemical analysis and subsequently a mahazar has been prepared and the same has been written by him. 11. One independent witness by name Surendhiran has been examined as PW3. 11. One independent witness by name Surendhiran has been examined as PW3. He has stated in his evidence that he is doing Real Estate business in Tiruchirapalli and on 06.07.2001 he and one Mariyanantham have been taking tea and at that time PW1 and four others, have come there and told that they are going to Pakhaaibhavan Bhavan for conducting enquiry and they asked them to come along with them and under the said circumstances, he and Mariyanantham have gone to the place of occurrence along with PW1 and others. He further states that one accused by name Kumar has been found in possession of yellow colour polythene bag and PW1 has seized the said bag and found that the same contained two packets and PW1 has examined the same and found that the same is morphine and subsequently PW1 has taken five gram from each packet and further he states that he has put his signature in Ex.P2. 12. The other independent witness by name Mariyanantham has been examined as PW4. He has also stated in his evidence that on 06.07.2001 he and PW3 have been taking tea and at that time PW1 and others have come to that place and asked them to come along with them for conducting enquiry and accordingly all of them, reached the place of occurrence and one accused by name Kumar has been found in possession of a yellow colour bag and the same has been inspected by PW1 and ultimately found two packets and PW1 has observed all legal formalities and prepared mahazar and he put his signature in Ex.P2. 13. The Chemical Analysis viz., Suresh has been examined as PW5. He has stated in his evidence that he has received Ex.P13 from the concerned Court and on the basis of Ex.P13, on 11.07.2001 he received two sealed bags and he compared the seals and subsequently, chemically analysised the things which are in question and ultimately found that the same are "dye-ascetile" morphine that is heroin. 14. Ex.P1 is the report filed under Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Ex.P2 is mahazar which speaks about the alleged seizure. Exs.P3 to P5 are the statements given by the accused, wherein it has been clearly stated that all the accused have involved in the alleged crime. Ex.P12 is a report prepared under Section 57 of the said Act. Ex.P2 is mahazar which speaks about the alleged seizure. Exs.P3 to P5 are the statements given by the accused, wherein it has been clearly stated that all the accused have involved in the alleged crime. Ex.P12 is a report prepared under Section 57 of the said Act. Therefore, from the testimonies of PWs.1 to 5 and the exhibits referred to supra, the Court can safely come to a conclusion that all the accused have committed offences under Sections 8(c) read with 21(c) read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 15. The learned counsel appearing for the appellants/accused in both the appeal, have raised the following contentions so as to supplant the conviction and sentence passed by the trial Court. 16. The first and foremost attack is that in the present case the mandatory provisions of Sections 42 (2), 50 & 57 have been violated and the trial Court without considering the above lapses found on the side of the prosecution, has erroneously invited the conviction and sentence against the accused and therefore, the conviction and sentence passed by the trial Court are liable to be set aside. 17. In support of their contentions, they have relied upon the following decisions; (a) In 1994(2) JT 108 (Supreme Court) (State of Punjab Vs. Balbir Singh), it has been held that under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) of the said Act, should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (b) In 1998 Criminal Law Journal 132 (Rajasthan High Court) (Ayub Vs. State of Rajasthan), it has been held that communication to official superior officer is mandatory under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and non-compliance is fatal. (c) In2000 Criminal Law Journal 4293 (Orissa High Court) (Ghasiram Patra Vs. State), it has been held that delay of one month and three days in sending samples for chemical examination is fatal to the prosecution. (d) In 1999 Supreme Court Cases (Criminal) 79 (Mohinder Kumar Vs. (c) In2000 Criminal Law Journal 4293 (Orissa High Court) (Ghasiram Patra Vs. State), it has been held that delay of one month and three days in sending samples for chemical examination is fatal to the prosecution. (d) In 1999 Supreme Court Cases (Criminal) 79 (Mohinder Kumar Vs. Stte, Panaji, Goa), it has been held that non-compliance of the provisions of Sections 42(1),(2), 50, 52 and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985, are fatal to the case of the prosecution. 18. The Special Public Prosecutor for customs has also equally contended that in the instant case, all the mandatory provisions of Sections 42(2), 50 & 57 have been followed and therefore, the argument advanced by the learned counsel appearing for the appellants/accused is totally contra to the available records and therefore, the same is liable to be rejected. 19. For considering the rival submissions made by either counsel, the Court has to look into the following documents; Ex.P1 is a report given under Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the same has been sent by PW1 to the Commissioner of Customs, Tiruchirpalli. Ex.P2 is a mahazar, wherein also it has been clearly stated that before conducting search all the accused have been informed that if they desire that the search should be made either in the presence of a Judicial Magistrate or a Gazetted Officer, they can exercise their option. Therefore, Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has also been complied with and to that extent in Exs.P3 to P5 all the accused have clearly stated. Ex.P12 is a report prepared under Section 57 of the said Act, wherein also the provision of Section 57 of the said Act has been duly complied with. 20. Therefore, in the light of the discussion made earlier, it is very clear that the first limb of argument advanced by the learned counsel appearing for the appellants/accused is totally contra to the documents filed in the present case and the same cannot be accepted. 21. 20. Therefore, in the light of the discussion made earlier, it is very clear that the first limb of argument advanced by the learned counsel appearing for the appellants/accused is totally contra to the documents filed in the present case and the same cannot be accepted. 21. The learned counsel appearing for the appellants/accused have also made their endeavour to the effect that the present case comes only under the penal provision of Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the trial Court has erroneously invited the conviction and sentence under Section 21(c) of the said Act and therefore, the conviction and sentence passed by the trial Court are liable to be set aside. 22. The learned counsel appearing for the appellants/accused have advanced their argument only on the basis of the evidence adduced by PW5. PW5, the Chemical Analysis has stated in his evidence that the packet which has been marked as P1 -S1 contain 22.46% of heroin and the packet which has been marked as P2 -S1 contain 33.95% of heroin. The crux of the argument advanced by the learned counsel appearing for the appellants/accused is that the percentage of heroin is neither small quantity nor commercial quantity and it is a quantity in between the two and therefore, punishment cannot be given under Section 21(c) of the said Act. 23. In order to remonstrate the above limb of argument advanced by the learned counsel appearing for the appellants/accused, the learned Special Public Prosecutor for customs has befittingly drawn the attention of the Court to the decision reported in 2005 SAR (Criminal) 765 (Amarsingh Ramjibhai Barot Vs. State of Gujarat) wherein the Honourable Apex Court has held that the punishment is graded according to whether the contravention involved "small quantity" or "commercial quantity" or a quantity in between the two. 24. From the close reading of the decision referred to supra, it is made clear that the punishment warrants only on the basis of small quantity or commercial quantity or a quantity between the two and not on the basis of percentage of the substance. 25. In the instant case, from the evidence of PW1, the Court can easily learn that he seized two packets of brown sugar weighing in aggregation 1.020 kilograms from the first accused. 25. In the instant case, from the evidence of PW1, the Court can easily learn that he seized two packets of brown sugar weighing in aggregation 1.020 kilograms from the first accused. It is an axiomatic fact that 250 grams of heroin come under the category of commercial quantity. Therefore, the only criteria to be applied in the present case is as to whether the alleged heroin comes either under the category of small quantity or commercial quantity or the quantity in between the two. 26. In the instant case, as pointed out earlier, the prosecution has clearly proved that the accused are in possession of commercial quantity. Of-course it is true that PW5 has stated in his evidence that one packet contain 22.56% of heroin and another packet contain 33.95% of heroin and only on that basis, the learned counsel have stressed their argument that the quantity alleged to have been seized from the accused can be branded as the quantity in between the small quantity and commercial quantity. It has already been pointed out in detail that the percentage of particular substance need not be looked into and total quantity must be taken into consideration. In the instant case, the accused are in possession of commercial quantity. Therefore, the above limb of argument advanced by the learned counsel appearing for the appellants/accused is not having attractive force. 27. The learned counsel appearing for the appellants/accused have contended with great vehemence that the alleged independent witnesses viz., Surendhiran and Mariyanantham have been examined as PWs.3 & 4 and they have not identified the accused 2 & 3 and therefore, the Court cannot come to a conclusion that the accused 2 & 3 have also involved in the alleged crime, but, the trial Court without considering the above lapse found on the side of the prosecution, has erroneously invited the conviction and sentence against the accused 2 & 3 and therefore, the conviction and sentence passed against the accused 2 & 3 are liable to be set aside. 28. As rightly pointed out by the learned counsel appearing for the appellants/accused, the independent witnesses viz., Surendhiran and Mariyanantham (PWs.3 & 4) have not properly identified the accused 2 & 3. But, they have clearly spoken to the effect that one accused by name Kumar has been found in possession of yellow colour bag. 28. As rightly pointed out by the learned counsel appearing for the appellants/accused, the independent witnesses viz., Surendhiran and Mariyanantham (PWs.3 & 4) have not properly identified the accused 2 & 3. But, they have clearly spoken to the effect that one accused by name Kumar has been found in possession of yellow colour bag. At this juncture, the learned Special Public Prosecutor for customs has drawn the attention of the Court to the decision reported in 2004 Supreme Court Cases (Criminal) 1 (P.P.Fathima Vs. State of Kerala) wherein the Honourable Apex Court has held that omission on the part of such panch witness to support the prosecution case is not fatal to the prosecution case if from material on record and evidence of seizing authority the court is satisfied that the seizure is genuine and the same is made out. 29. In the instant case, plethora of evidence are available so as to prove the alleged seizure and all the accused have given separate statement wherein they have clearly admitted their involvement in the crime. Even though PWs.3 & 4 have not fully supported the version of the prosecution, the evidence of PW1 and other connected documents would clearly go to show that the accused 2 & 3 have also involved in the crime and therefore, the above limb argument advanced by the learned counsel appearing for the appellants/accused cannot be accepted. 30. The learned counsel appearing for the appellants/accused have also made their endeavour to the effect that in the present case, two different drugs are in existence and therefore, the Court cannot come to a conclusion that the first accused is in possession of heroin at the time of occurrence and the accused 2 & 3 have also involved in the crime. 31. The learned counsel appearing for the appellants/accused have advanced their argument on the basis of evidence given by PW1. PW1 has stated in his evidence that he has taken a sample of small quantity and the same has been subjected to chemical examination and ultimately found that the same is morphine. The evidence of PW1 should be read along with the evidence of PW5, Chemical Analysis. He has stated in his evidence that he examined the samples and found the same contain "dye-ascetile" morphine that is heroin. The evidence of PW1 should be read along with the evidence of PW5, Chemical Analysis. He has stated in his evidence that he examined the samples and found the same contain "dye-ascetile" morphine that is heroin. Therefore, the drug involved in the present case is nothing but one and under the said circumstances, the argument advanced by the learned counsel appearing for the appellants/accused is sans merit. 32. The learned counsel appearing for the appellants/accused have also advanced their last limb of argument stating that in the present case no independent witness has been examined so as to prove the guilt of the accused and therefore, the entire case of the prosecution is liable to be thrown out. 33. In the instant case, the independent witnesses have been examined as PWs.3 & 4 and they supported the version of the prosecution in part. Therefore, no one can say that independent witness has not been examined in the present case. Even assuming without conceding that independent witness has not been examined in the present case, the Court can find out the culpability of the accused on the basis of available evidence. It has already been pointed out in many places that the prosecution has clear established the guilt of the accused. Therefore, the role of independent witnesses is absolutely unwarranted in the present case and further the Honourable Supreme Court has held in various decisions that in cases of similar nature, role of independent witness is not at all necessary. Therefore, the argument advanced by the learned counsel appearing for the appellants/accused is not having attractive force. 34. The learned counsel appearing for the appellants/accused have advanced their residual argument to the effect that the trial Court has imposed Rs.1,00,000/-upon each accused by way of fine and in default they must undergo three years rigorous imprisonment and some leniency can be shown in respect of default sentence. 35. It has already been pointed that the trial Court has imposed substantive sentence to the extent of twelve years and the trial Court has awarded default sentence to the extent of three years. Considering the above submission made by the learned counsel appearing for the appellants/accused, imposing default sentence to the extent of one year would be sufficient to meet the ends of Justice and to that extent, the present criminal appeals can be allowed. Considering the above submission made by the learned counsel appearing for the appellants/accused, imposing default sentence to the extent of one year would be sufficient to meet the ends of Justice and to that extent, the present criminal appeals can be allowed. Further the trial Court after analyzing all the evidence available on record, has rightly found all the accused guilty under the Sections mentioned in the charge. 36. In fine, these criminal appeals are allowed in part and the conviction and sentence passed against the appellants/accused under Sections 8(c) read with 21(c) read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in Calendar Case No.652 of 2001 by the Special Court (for EC & NDPS Act cases), Pudukottai are confirmed and the default sentence alone is modified as follows; In default of payment of fine each accused must undergo one year rigorous imprisonment instead of three years rigorous imprisonment.