JUDGMENT 1. - These are four appeals against the judgment of the learned Addl. Sessions Judge No. 1, Sriganganagar passed on 15.10.2004 in Sessions Case No. 37/1993, whereby he convicted and sentenced the accused appellants as under: (1) Appellant Hardayal Singh Under Section 8/21, N.D.P.S. Act R.I. for 20 years and a fine of Rs. 2,00,000/-, in default of payment of fine, to further undergo R.I. for one year. Under Section 8/23, N.D.P.S. Act R.I. for 20 years and a fine of Rs. 2,00,000/-, in default of payment of fine, to further undergo R.I. for one year. (2) Appellant Paramjeet Singh Under Section 8/21, N.D.P.S.' Act R.I. for 20 years and a fine of Rs. 2,00,000/-, in default of payment of fine, to further undergo R.I. for one year. Under Section 8/23 N.D.P.S. Act R.I. for 20 years and a fine of Rs. 2,00,000/-, in default of payment of fine, to further undergo R.I. for one year. (3) Appellant Pritam Singh Under Section 8/21 N.D.P.S. Act R.I. for 20 years and a fine of Rs. 2,00,000/-, in default of payment of fine, to further undergo R.I. for one year. Under Section 8/23 N.D.P.S. Act R.I. for 20 years and a fine of Rs. 2,00,000/-, in default of payment of fine, to further undergo R.I. for one year. (4) Appellant Sukhvindra Singh Under Section 8/21, N.D.P.S. Act R.I. for 20 years and a fine of Rs. 2,00,000/-, in default of payment of fine, to further undergo R.I. for one year. Under Section 8/23, N.D.P.S. Act R.I. for 20 years and a fine of Rs. 2,00,000/-, in default of payment of fine, to further undergo R.I. for one year. (5) Appellant Mohd. Nasir Under Section 8/29, read with Section 8/23,N.D.P.S. Act R.I. for 20 years and a fine of Rs. 2,00,000/-, in default of payment of fine, to further undergo R.I. for one year. Under Section 8/29, read with Section 8/21, N.D.P.S. Act R.I. for 20 years and a fine of Rs. 2,00,000/-, in default of payment of fine, to further undergo R.I. for one year. 2. All the sentences were ordered to run concurrently. However, accused appellants Pritam Singh, Paramjeet Singh and Sukhvindra Singh were acquitted of the charge under Section 3/6, I.P.P.R. 3. 2,00,000/-, in default of payment of fine, to further undergo R.I. for one year. 2. All the sentences were ordered to run concurrently. However, accused appellants Pritam Singh, Paramjeet Singh and Sukhvindra Singh were acquitted of the charge under Section 3/6, I.P.P.R. 3. Accused Hardayal Singh has filed Criminal Appeal No. 1189/2004 alongwiht accused-appellants Paramjeet Singh and Pritam Singh, whereas Paramjeet Singh and Priatm Singh have also filed separate Criminal Appeal No. 1111/2004. Accused Sukhvindra Singh and Modh. Nasir S/o Hazi Abbas have filed appeals bearing No. 855/2005 and 1185/2004, respectively. Since all these four appeals arise out of the same judgment of the learned Sessions Judge in Sessions Case No. 37/1993, decided on 15.10.2004, therefore, they are being disposed of by this common judgment. 4. The facts leading to these appeals are that on 17.1.1989, the police got information that some heroin and gold is being smuggled from Pakistan on the Indo-Pak border at village 24-0. Upon this information, the police party was constituted and, in the night, at 11.20 P.M. six persons were found coming towards Bhattiwala 24-0 on the Indo-Pak border. Upon warning, they threw the goods and ran towards the police and B.S.F. party and started firing. The police party also fired and caught hold of two persons. Rest of them ran away from the spot. Out of the two persons who were caught on the spot were Daljeet Singh and Hardayal Singh. Upon search, 125 gold biscuits were found from Hardayal Singh alongwith 15 packets of other contraband articles. Likewise, 15 packets of heroin and 125 gold biscuits were found from the bag of Daljeet Singh. The persons who ran away were also chased and 3 cartons were also found in which two cartons were of 15 packets and one of 30 packets. 5. All the articles were seized in the presence of Lalchand Sunar. They were sealed and samples were taken, F.I.R. No. 7/1989 under Sections 307 and 353, I.P.C., Section 8 read with Sections 23, 25 and 29, N.D.P.S. Act, Section 112 of the Customs Act, Section 3/6, I.P.P.R. as also Section 27 of the Arms Act was registered. Upon the information of Hardayal Singh, 10 more packets of heroin were recovered from car No. DBG 8751 in which Paramjeet Singh was sitting. Further, from his information, 5 packets of heroin were recovered from truck No. RRC 7892 wherein Pritam Singh was arrested. Upon the information of Hardayal Singh, 10 more packets of heroin were recovered from car No. DBG 8751 in which Paramjeet Singh was sitting. Further, from his information, 5 packets of heroin were recovered from truck No. RRC 7892 wherein Pritam Singh was arrested. Vehicles and heroin were seized and sealed. Firing material was also seized. In all, 250 gold biscuits and 103 heroin packets recovered were deposited in the malkhana alongwith driving licence of "Praveen Kumar" and a chit with accused Hardayal Singh stating therein, "Patala'', 263925 D.G. 266951 C.C.N.D." Upon enquiry, Hardayal Singh told that he has forged up the licence and the telephone numbers are of Delhi which were noted down to him by one Pak national Liyaqat, who handed over the articles to Hardayal and asked him to deliver the same to one Baba and Nasir in Bombay. 6. Upon the information of Hardayal Singh, one party was sent to Delhi to enquire about Mahaveer Prasad who is also known as "Patla" and "Lalji", whose statement was recorded under Section 67 of the N.D.P.S. Act. 7. Thereafter, the police party went to Bombay where heroin was to be supplied to one Baba and Mohammed Nasir. Assistance of Deputy Director, N.C.B., Bombay Shri R.N. Kakkar was also obtained who recorded the statements of Baba and Nasir S/o Hazi Abbas and seized passport, photographs and bill of the car and electricity. Alongwith documents Ex.-A/1 to A/3 and Ex.-B/1 to B/8, in which he admitted that on 16.1.1989 one Mohammad Nasir of Karachi who informed him that one package of heroin was to arrived within 7-8 days and arranged for his consent. Recovery was also made of Indian currency worth Rs. 4,00,000/- from nasir, about which one Amna also told that he was residing in her flat. 8. After investigation, accused Hardayal Singh, Daljeet Singh, Paramjeet Singh, Pritam Singh, Sukhvinder Singh, Ehasan Khan, Jagveer Singh and Raman were charge-sheeted under Sections 307 and 353, I.P.C. alongwith Sections 8/21, 25, 23 of N.D.P.S. Act, Section 112 of the Customs Act, Section 3/6 of I.P.P.R. and Section 27 of the Arms Act. 9. Accused Mahaveer Prasad, Mohd. Nasir S/o Hazi Abbas and Mohd. Nasir S/o Mohd. Hussain were charge-sheeted for offences under Sections 8/21, 25 and 29 of the N.D.P.S. and Section 112 of the Customs Act. 10. Proceedings against accused Raman Dhawan was dropped as he died. 11. 9. Accused Mahaveer Prasad, Mohd. Nasir S/o Hazi Abbas and Mohd. Nasir S/o Mohd. Hussain were charge-sheeted for offences under Sections 8/21, 25 and 29 of the N.D.P.S. and Section 112 of the Customs Act. 10. Proceedings against accused Raman Dhawan was dropped as he died. 11. Accused Ehsan Khan @ Baba, Mohd. Nasir S/o Mohd. Hussain, Jagveer Singh and Daljeet Singh are absconding and trial is pending against them. Accused Mahaveer Prasad has been discharged by this Court in S.B. Criminal Revision Petition No. 328/1993 on 14.3.1995. 12. Remaining five accused appellants, who have been convicted and 'sentence as above, have filed the present appeals. 13. These five accused appellants were charged as under: 14. Accused Haradyal Singh was charged under Sections 8/21 and 23 of the N.D.P.S. Act. Accused Sukhvinder Singh, Paramjeet Singh and Preetam Singh were charged under Sections 8/23 and 8/21, N.D.P.S. Act and Section 3/6 of I.P.P.R. Accused Mohammed Nasir S/o Hazi Abbas was charged under Section 8/29 of the N.D.P.S. Act. All the accused pleaded not guilty. 15. The prosecution examined 12 witnesses, statements of the accused under Section 313, Cr.P.C. were recorded. The accused led no evidence in defence. After hearing the arguments, learned trial Judge convicted and sentenced the accused as above. 16. So far as appeal filed by Hardayal Singh, Pramjeet Singh and Pritam Singh is concerned, their respective learned counsel have not challenged their conviction; but, they have simply submitted that looking to the protracted trial of about 20 years, sentence of 20 years imprisonment is very much excessive, the accused are in custody for about 12 years, even the culprit of murder is released after 14 years in the case of life imprisonment. Therefore, they submit that the sentence be reduced to 10 years and fine be also reduced from Rs. 2,00,000/- to Rs. 1,00,000/-, which is Minumum one. 17. On the contrary, the learned Public Prosecutor has opposed the reduction of sentence and fine. 18. The background of the case is said to be smuggling of narcotic drug from border area of Pakistan into India and use of fire arms at the time of seizure. But, after trial, the learned Sessions Judge has acquitted concerned appellants of the charges under Section 3/6, I.P.P.R. and the charge under the Arms Act was not leveled against them. The background of the case is said to be smuggling of narcotic drug from border area of Pakistan into India and use of fire arms at the time of seizure. But, after trial, the learned Sessions Judge has acquitted concerned appellants of the charges under Section 3/6, I.P.P.R. and the charge under the Arms Act was not leveled against them. Therefore, it cannot be said that the accused entered into Indian territory without passport and used arms. It is, of course, true that from these three appellants viz., Hardayal Singh, Paramjeet Singh and Pritam Singh, recovery of heroin in huge quantity of 103 kg has been made. But the quantity is in total. Different packets have been recovered from different accused and the prosecution has not been able to show that how much of the prosecution has not been able to show that how much of the actual content of heroin was seized from each accused. Even if that part is looked into, it will definitely be commercial quantity. Therefore, under the aforesaid circumstances, it will be in the interest of justice that the above three accused are sentenced to 10 years rigorous imprisonment instead of 20 years while maintaining their fine, add, in default of payment of fine, to undergo imprisonment as ordered by the trial Court. 19. As regards accused appellant Sukhvinder Singh @ Sikhjeet Singh, the learned trial Judge has observed that he has been implicated by the trial Court on the basis of his information vide Ex.P-90 given to the police under Section 27 of the Evidence Act, in which he said that he left the heroin packets at a particular place. The site-inspection memo is Ex.P-91, site plan is Ex.P-92 and identification of the place is vide Ex.P-92A. Further, his statement under Section 67 of the N.D.P.S. Act was recorded vide Ex.P-94, Learned counsel for this appellant submitted that these documents have no evidentiary value. 20. In my opinion, Section 27 of the Indian Evidence Act relates to discovery of a fact. But, this fact must be co-related with the recovery of articles or instruments of crime. Here in the present case, however, there is neither any recovery of article nor of any instrument of crime. 20. In my opinion, Section 27 of the Indian Evidence Act relates to discovery of a fact. But, this fact must be co-related with the recovery of articles or instruments of crime. Here in the present case, however, there is neither any recovery of article nor of any instrument of crime. Therefore, solely on the basis of this site, the accused cannot be connected with the crime by virtue of his information furnished during the police custody, which is said to be admissible under Section 27 of the Evidence Act. 21. So far as his statement under Section 67 of the N.D.P.S. Act is concerned, it has been recorded on 30.9.1996 vide Ex.P-94. It runs in four pages. But, glaring aspect of the matter is that it is signed only on the last page at the bottom, and in between, there is comfortable blank. Prime facie it appears that signature on the last page has been obtained on blank paper. 22. Apart from this, statement Ex.P-94 was recorded on 30.9.1996 and accused Sikhjet Singh was arrested on 26.6.1996 at 7.20 A.M. Vide arrest-memo Ex.P-93, i.e. four days prior to his statement under Section 67 of the N.D.P.S. Act was recorded. Article 20, sub-clause (3), Constitution of India reads as under: "(3) No person accused of any offence shall be compelled to be a witness against himself." By virtue of this Article, a person accused of any offence, having already been arrested, cannot be compelled to be a witness against himself. 23. Here, in the present case, when Sukhvinder Singh @ Sikhjeet Singh was arrested on 26.9.1996 and his confessional statement was recorded on 30.9.1996, it has no constitutional sanction and it cannot be read against him. 24. The above proposition of law has been settled long back by the Supreme Court in Ramanlal Bhogilal Shah & Anr. v. D.K. Guha & others, AIR 1973 SC 1196 : 1973 Cr.L.R. (SC) 454 . The relevant paras 23 and 24 of the judgment read as follows: "Although we hold that the petitioner is a person accused of an offence within the meaning of Article 20(3), the only protection that Article 20(3) gives to him is that he cannot be compelled to be a witness against himself. But this does not mean that he nned not give information regarding matter which do not tend to incriminate him. But this does not mean that he nned not give information regarding matter which do not tend to incriminate him. This Court observed in State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10 at p.32 : AIR 1961 SC 1808 as follows: "In order that a testimony by an accused person may be said to have been self-incriminatory the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself." Therefore we are unable to set aside the summons. The petitioner must appear before the Deputy Director and answer such questions as do not tend to incriminate him, as explained by this Court." 25. Thus, from the above, it is clear that the statement given by Sukhvinder Singh CO) Sikhjeet Singh incriminating himself for the charge is not admissible in evidence as being voluntarily made. This view was followed by this Court in Kingsley & Anr. v. State of Rajasthan, 1996(3) Crimes 370 and also in Satya Narain v. Union of India, 2002 (2) RCC 728 . 26. Except as discussed above, there is on other evidence to connect accused Sukhvinder Singh @ Sikhjeet Singh with the crime and the learned trial Court has not appreciated the law in the above light. The conviction of accused appellant Sukhvinder Singh @ Sikhjeet Singh accordingly deserves to be set said. 27. So far as accused appellant Mohd. Nasir S/o Hazi Abbas is concerned, he has also been convicted on the basis of his statement Ex.P-70, recorded by R.N. Kakkar, PW-12. Though this statement was not recorded while in custody, but it has been recorded in English in 7 pages. 28. It is contended by learned counsel for the appellant that it is clear from the statement recorded by PW-12 R.N. Kakkar that the appellant does not know English. The accused does not know any other language except Farsi and Hindi but, despite that, his statement has been recorded in English and, therefore, it cannot be read against him. 28. It is contended by learned counsel for the appellant that it is clear from the statement recorded by PW-12 R.N. Kakkar that the appellant does not know English. The accused does not know any other language except Farsi and Hindi but, despite that, his statement has been recorded in English and, therefore, it cannot be read against him. He further submits that information was given about this accused by Devendra Dutta, Deputy Director, N.C.B., Delhi but he has not been examined by the prosecution. He further submits that this statement was reduced into writing by one R. Ramesh who has also not been examined. 29. In support of his submission, the learned counsel placed reliance upon the judgment of this Court rendered in the case of Kingsley & Anr. v. State of Rajasthan, 1996 (3) Crimes 370 , para 16 thereof reads as under: "Apart from this, Shri Rathore has not recorded the statements of the accused in the language spoken by them. The accused being Nigerians could not know Hindi. Their statements should have been recorded in English, more so when Shri Rathore knew English. Besides this, a reading of the statements shows that there is absolutely no difference in the two statements Exs. P-10 and P-11 excepting the names of the accused. This shows that Shri Rathore has written the statements as he liked and they are not the voluntary statements of the accused." 30. Having gone through the statements Exs.P-70, which is in English language and statement of PW-12 Kakkar it reveals that this statement cannot be said to be voluntary. The relevant portion of the first page of the statement reads as, "I can speak and understand Farsi and Hindi. I do not have any formal education." When a question was asked to prosecution witness R.N. Kakkar, he admitted in his cross-examination that whenever he goes for investigation he maintains diary; but, the telephonic message of Devendra Dutta is not available in his file. He also admitted that the subscriber of telephone number given by Devendra Dutta was not Mohd. Nasir S/o Hazi Abbas. He further admitted that statement which was recorded by him was in English but the witness was not knowing English. Further, he deposed in the cross that he did not record the statement in the language of the person concerned and the same was translated from Hindi to English. Nasir S/o Hazi Abbas. He further admitted that statement which was recorded by him was in English but the witness was not knowing English. Further, he deposed in the cross that he did not record the statement in the language of the person concerned and the same was translated from Hindi to English. But, there is no mention in the statement itself that the statement was so translated. 31. In this view of the matter, the evidence of R.N. Kakkar, PW-12 with reference to statement Ex.P-70, said to have been recorded of Mohd. Nasir under Section 67 of the N.D.P.S. Act cannot be read against him. My finding if fortified from the view taken by this Court in Kingsley & another v. State of Rajasthan (supra). That apart, the person who is said to be linked with absconded accused Ehsan Khan is Mohd. Nasir S/o Mohd. Hussain. The fidning of the learned trial Court that it was Mohd. Nasir S/o Hazi Abbas i.e., the person accused appellant was involved in smuggling of heroin and, on his information, the search was made from Ehsan Khan and his wife Amna, are ill-founded because Amna has not been examined and in his police statement, as stated in Revision Petition Nos. 328/1993 and 224/1993, this Court has observed that it was Mohammed Nasir S/o Mohammed Hussain, a Pak national, who resided in the house of Amna, and a sum of Rs. 4,00,000/- was recovered from him; and, on that basis, Mohammed Nasir S/o Mohammed Hussain was not discharged like Mahaveer Prasad by this Court in the above-referred revision petition from offence under Section 8/29 of the N.D.P.S. Act. Without there being any charges under Sections 8/21 and 8/23, read with Section 8/29 of the N.D.P.S. Act. He has been convicted for both the charges. The charge against him was only with reference to offence under Section 8/29 of the Act. 32. In view of this, there is no evidence against Mohammed Nasir S/o Hazi Abbas to connect him with the crime. 33. As a result of the aforesaid, S.B. Criminal Appeal No. 11899/2004, filed by Hardayal Singh, Paramjeet Singh and Preetam Singh, is partly allowed. The sentence of imprisonment of 20 years' R.I. awarded to each accused-appellant is reduced to rigorous imprisonment for 10 years each. 33. As a result of the aforesaid, S.B. Criminal Appeal No. 11899/2004, filed by Hardayal Singh, Paramjeet Singh and Preetam Singh, is partly allowed. The sentence of imprisonment of 20 years' R.I. awarded to each accused-appellant is reduced to rigorous imprisonment for 10 years each. Each of them shall, however, pay fine as awarded and, in default, undergo further sentence, as ordered by the trial Court. Substantive sentences shall run concurrently and after serving out the sentence of rigorous imprisonment for 10 years' by each accused appellant, the period of imprisonment, in default of payment of fine, shall be counted separately. 34. Consequently, S.B. Criminal Appeal No. 1111/2004, filed separately by Paramjeet Singh and Preetam Singh, also stands disposed of. 35. S.B. Criminal Appeal No. 855/2005 is allowed and the conviction and sentence ordered by the trial Court against accused appellant Sukhvinder Singh Sikhjeet Singh under Sections 8/21 and 8/23, N.D.P.S. Act are set aside. He is reported to be in jail. He shall be released forthwith, if not required in any other case. 36. S.B. Criminal Appeal No. 1188/2004 also deserves to be allowed. The conviction and sentence ordered against the accused appellant Mohd. Nasir under Section 8/29 of the N.D.P.S. Act by the trial Court is set aside. He is reported to be in jail. He shall be released forthwith, if not required in any other case.All these four appeals are disposed of as indicated above.Appeal of accused 'S' and 'M' allowed. *******