Judgment :- T. Sudanthiram, J. 1. Appellant Yasser Arafat is the second accused in C.C. No. 179 of 2003 on the file of the Additional District and Sessions Judge and Presiding Officer, Special Court for E.C, Act cases, Coimbatore, and he has preferred this appeal challenging the conviction and sentence imposed on him in the case. 2. To prove its case, the prosecution examined P.Ws.1 to 8 and marked Exhibits P-1 to P-41 and M.Os.1. to 41. 3. The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows: On 15. 2003, at about 4.00 p.m., P.W.1 Mukundan, intelligence Officer, Narcotic Control Bureau, was in his office and he received the information over phone. The information indicated that one Sridaran alias Sri and and one Yazar were indulging in drug trafficking from Madhya Pradesh to Srilanka via Erode and Madurai. The said Sridaran was working for one Srilankan namely Haji Mohammed Ameen and he had already procured 3 kgs of heroin with the assistance of Yazar and again Sridaran procured further 7 kgs of heroin from Madhya Pradesh and it would be reaching Erode on 15. 2003 in the early hours. The total quantity of 10 kgs of heroin is to be taken to Madurai and it is sent to Haji Mohaded Ameen in Srilanka through one Srilankan by name Jagan. The said Sridharan is residing at No. 9A/15, VOC Street, LGGS Colony III, Kollampalayam, Erode. P.W. 1 reduced the in-formation into writing in Exhibit P-I and he produced the same before P.W.7 Gunabalan, Superintendent. P.W.7 directed P.W.1 and P.W.3 to take necessary action. On 15. 2003, P.W.1 proceeded along with his team officers lead by P.W.7 from Chennai and reached Erode on 15. 2003 and mounted surveillance near the house of the first accused. They reached the house at 6.30 a.m., and they kept surveillance of the house. The doors of the house were kept open and they found two persons in the hall. P.W.7 instructed P.W.1 to bring two independent witnesses. P.W.I along with P.W.8 went and brought P.W.2, M. Ganapathy, Village Administrative Officer and his Assistant one Ganesan and they reached the place at 3.00 p.m and they all entered into the house and saw the doors opened and two person were sitting inside the hall who are accused 1 and 2 in this case. P.W.I along with P.W.8 went and brought P.W.2, M. Ganapathy, Village Administrative Officer and his Assistant one Ganesan and they reached the place at 3.00 p.m and they all entered into the house and saw the doors opened and two person were sitting inside the hall who are accused 1 and 2 in this case. The officer introduced himself by showing the identity card and enquired them and they dame to know that one of them was Sridaran alias Sri resident of Erode the first accused and Yasar Arafat resident of Erode, the second accused. P.W.1 informed them that they wanted to search the house and also informed them about their right to exercise the option to be searched before a gazated officer or a Magistrate to which both the accused declined and consented that the officers present there could conduct search, P.W.1 enquired whether they were in possession of narcotic drugs. Then the accused went inside and brought out red colour Rexin-Zipper bag and told that it contained 10 kgs of heroin. P.W.1 along with other officers opened the said bag and found two white coloured cloth stitched packets which contained a card board box wrapped with Hindu Newspaper covered with brown colour adhesive tape. On opening it, they found it contained 7 packets wrapped with adhesive tapes and inside they found brown colour powder. P.W. 1 took small quantity from each packet and tested in the field test kit and found that the material is Heroin. Then, P.W. 1 seized all the 11 packets each weighing about 1.100 kg a, 1.105 Kgs, 0.695 Kgs 1.090 Kgs, 0.985 grams, 1.000 Kgs, 1.005 Kgs and 220 grams, totalling 10.460 Kgs and they were seized along with packet materials and bag. In the personal search of the accused made, P.W.1 recovered foreign currency notes, driving license, cell phone and other documents. The mahazar was drawn on the spot mentioning entire proceedings about the search and seizure, in which the officers, independent witnesses P.W.2 end another signed. The copy of the mahazar was also given to both the accused and their acknowledgement were also obtained. Thereafter, both the accused were issued summon by P.W.3 Muruan and P.W.8 Sivakumar for further enquiry at Modakurichi police station. Then the officers along with accused 1 and 2 went to Modakurichi police station. The first accused Sridaran had given a statement before P.W.3 on 15. Thereafter, both the accused were issued summon by P.W.3 Muruan and P.W.8 Sivakumar for further enquiry at Modakurichi police station. Then the officers along with accused 1 and 2 went to Modakurichi police station. The first accused Sridaran had given a statement before P.W.3 on 15. 2003 from 8.30 p.m. to 9.30 p.m and he continued the statement on the next day from 10.00 a.m to 12.00 noon. Exhibit P-9 is the voluntary statement given by the first accused in his own hand writing. P.W.3 arrested the first accused at 5.00 p.m. on 15. 2003 and he handed over the accused to P.W.8 for sending him for the Judicial remand. The second accused appeared before P.W.8 on 15. 2003 at 8.00 p.m. and gave the statement up to 9.00 p.m. and he continued to give statement on the next day morning at 9.00 a.m. Exhibit P-21 is the voluntary statement given by the second accused in his own hand writing. P.W.7 took the second accused to his house at Erode and his house was also searched. As no incriminating material was available, nothing was seized. P.W.8. arrested the second accused at 5.00 p.m. Both the accused were taken before the learned Judicial Magistrate, Erode, at 7.00 p.m. and they were remanded to custody. P.W.8 prepared Exhibit P-31 report under Section 57 of the NDPS Act on 15. 2003 and submitted to P.W.7. P.W.1 also prepared a re-port Exhibit P-5 under Section 57 of NDPS Act on the same day at 5.45p.m. and submitted to P.W.7. P.W.3 prepared Exhibit P-11 under Section 57 of NDPS Act on 15. 2003 and submitted to P.W.7 Superintendent of Police. P.W.8 handed over the properties to the custody of the Court on 15. 2003. He also sent the property for the chemical analysis, P.W.4, V. Suresh, Chemical Examiner and P.W.5, Tmt. Saraswathy Chakravarthy, Assistant Chemical examiner conducted the test of the sample sent to them and they have given a chemical examination report Exhibit P-12 stating that each of the 11 samples answered the test for the presence of di-acetyl-morphine and they had given the details of percentage of diacetyl-morphine in each sample. P.W.8 investigated the matter and on completion of investigation, filed a complaint on 11. 2003 against both the accused under Section 8(c) read with Sections 21, 23, 25, 28 and 29 of NDPS Act. 4. P.W.8 investigated the matter and on completion of investigation, filed a complaint on 11. 2003 against both the accused under Section 8(c) read with Sections 21, 23, 25, 28 and 29 of NDPS Act. 4. The accused were examined under Section 313 CrPC and they denied complicity. D.Ws.1 and 2 were examined and Exhibits D-1 and D-2 were marked on the side of the defendants. D.W.1 Ganesan has stated that on 15. 2003 Chennai, Adayar BSNL Office does not contain the provision to state what are the numbers that are received in a particular telephone and what are the numbers that have been used in a particular telephone at their office. Likewise, D.W.2 S. Raghunath, Sub Divisional Engineer (Legal), Erode has stated that the power given to him to attend the Court is marked as Exhibit D-1 and the report-given by Sub Divisional Engineer (OCB) Erode is marked as Exhibit D-2 in which no data available with respect to the detailed Billing Report in their Telephone Exchange for the period May, 2003 and it is not possible for them to checkout going calls to Chennai phone numbers. 5. The learned Additional District and Sessions Judge convicted both the accused and the second accused/appellant herein is convicted for the offences under 8(c) read with Section 21(c) and Section 29 of the NDPS Act and is sentenced as stated earlier. 6. Mr. N. Manokaran, learned counsel appearing for the appellant/A.2 submits that the mandatory provisions required under Sections 42(2). 50(6) and 57 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) have not been followed in this case. As per Section 42(2) of the Act, the Officer should take any information in writing and send a copy thereof to his immediate official superior within seventy-two hours. In this case, P.W. Intelligence Officer S. Mukundan, who had recorded the information. Exhibit P-1, had not forwarded the copy to his superior. After con-ducting search, the Officer should record the reasons which necessitated him for such search and should send a copy of the same within seventy-two hours to his immediate official superior as required under Section 50(6) of the Act. In this case, admittedly, no such re-port was sent by the Intelligence Officers who conducted search. After con-ducting search, the Officer should record the reasons which necessitated him for such search and should send a copy of the same within seventy-two hours to his immediate official superior as required under Section 50(6) of the Act. In this case, admittedly, no such re-port was sent by the Intelligence Officers who conducted search. The learned counsel further submits that the statement of A.2 Yasser Arafat, said to have been recorded by P.W.8 Intelligence Officer Sivkumar, was obtained only by threat and coercion and it is not a voluntary statement and no reliance should be placed on Exhibit P-27 Statement. According to the prosecution case, A.2 was present along with A.1 Sridharan in the house where search was conducted and as such, no offence is made out against A.2 under Section 8(c) of the Act. Even for the allayed seizure of the contraband, the residents of the locality were not taken as witnesses. The learned counsel further submits that, in any event, the sentence imposed on A.2 is too severe and excessive. 7. Per contra, the learned Special Public Prosecutor for NCB cases submits that the mandatory provision under Section 42(2) of the NDPS Act is complied with in this case and as no contraband was seized from the persons of the accused, Section 50 of the Act itself is not applicable. The contraband was kept in the house and on search and enquiry, the accused themselves produced the contraband. That learned Special Public Prosecutor further submits that as far HB the statement given by A.2 to P.W.8 Intelligence Officer Sivakumar under Section 67 of the Act is concerned, it is only voluntary statement given by him and it shows that he was in possession of the contraband and the same was to be transported and as such Section 8(c) of the Act is attracted and moreover, the said statement was retracted by the accused only during the trial of the case, which is belated one. 8. This Court considered the submissions of both the parties aid perused the records. 9. On 15. 2003, P.W.1 Intelligence Officer S. Mukundan received an information over the phone, which indicated that both the accused indulged in drug trafficking and A1 Sridharan @ Sri had already procured 3 kgs. of heroin and again, he had procured 7 kgs. of heroin and he would be reaching Erode on 15. 9. On 15. 2003, P.W.1 Intelligence Officer S. Mukundan received an information over the phone, which indicated that both the accused indulged in drug trafficking and A1 Sridharan @ Sri had already procured 3 kgs. of heroin and again, he had procured 7 kgs. of heroin and he would be reaching Erode on 15. 2003 and the said contraband is to be carried to Madurai for onward transportation to Haji Mohammed Ameen in Sri Lanka. It was also informed that A.1 is at Door No. 9A/15, V.O.C. Street, LGGS Colony III, Kollampalayam, Erode. P.W.1 Intelligence Officer S. Mukundan had recorded the information received by him in Exhibit P-1 and after recording the same, he immediately submitted the same to P.W.7 Superintendent, NCB, Chennai, who was available in the Office. P.W.7 Superintendent Gunabalan also having seen Exhibit P-1, has made an endorsement in that, and also directed P.W.1 S. Mukundan and P.W.3 Murugan Intelligence Officers to take necessary action. Since, instead of a copy, the original Exhibit P-1 Re-corded Information itself being produced before P.W.7 Superintendent Gunabalan, who is the superior officer to P.W. 1 Intelligence Officer S. Mukundan, it cannot be said that Section 42(2) of the Act has not been complied with. 10. Before proceeding to the house of the accused, the N.C.B. Officers arranged for two witnesses and one among them is P.W.2 Ganapathy, who is the Village Administrative Officer of the Erode Town. Thereafter, P.W. 1 Intelligence Officer S. Mukundan proceeded along with other officers including P.W.7 Superintendent Gunabalan. When they reached the spot, the doors of the house ware kept open and saw two persons, who are A. 1 and A.2, in the Hall and they were informed about the intention of the officers to search them and explained the provision under Section 50 of the Act and the accused consented that the Officers themselves can conduct the search and then they were enquired whether they were possessing any narcotic drug. Both the accused went to the adjacent room of the hall and brought a big blue colour Rexine zipper bag and handed over the same to P.W.1 intelligence Officer S. Mukundan and told that it contained about 10 kgs. of heroin. The Officers opened the zip bag in which they found 7 cloth covered packets and 4 polythene packets and they found that each packet; containing brown coloured powder. of heroin. The Officers opened the zip bag in which they found 7 cloth covered packets and 4 polythene packets and they found that each packet; containing brown coloured powder. From each of the packets a small quantity was taken and tested separately using the field test kit available with them and it answered positive for heroin and they weighed and seized them and samples were also taken. 11. According to the prosecution, the contraband was kept in the house and it was produced only by the accused and it was seized. On further search of the accused, Indian and Sri Lankan currencies were seized. Therefore, the contention of the Learned counsel for the appellant that Section 50(6) of the Act was not followed is only to be rejected since no contra-band has been seized on the personal search of the accused. No prejudice is caused to the appellant A.2 by not sending any Report as per Section 50(6) of the Act, Exhibit P-2 Mahazar was also prepared at the spot itself, which gives details about search and seizure of the contrabands. In Exhibit P-2 Mahazar, the mahazar witness P.W.2 V.A.O. Ganapathy and another had signed. Accused Nos. 1 and 2 had also signed in Exhibit P-2 for having received the copies of Exhibit P-2 Mahazar. 12. After the seizure of the contraband,-both the accused were summoned by the Intelligence Officers under Section 67 of the NDPS Act. P. W.8 Intelligence Officer Sivakumar recorded the voluntary confession statement given by A.2./Appellant under Section 67 of the Act. Of course, it is the contention of A.2 that the statement was not given voluntarily. Even in the written statement filed by A.2, while he was Questioned under Section 313 Cr.P.C, it was stated that, he was threatened to write the statement and sign, otherwise his wife Mumtaz would be included in the case and therefore, he had written the statement. After recording the statement, A.2 was arrested at 5.00 p.m. on 15. 2003, and produced before the learned Judicial Magistrate, Erode on the same day. After being remanded to the prison, the appellant herein immediately retracted the confession given by him. Only at a berated stage, he has come forward with the version that the statement wee not given voluntarily and it was obtained by threat stating that his wife would be included in this case. After being remanded to the prison, the appellant herein immediately retracted the confession given by him. Only at a berated stage, he has come forward with the version that the statement wee not given voluntarily and it was obtained by threat stating that his wife would be included in this case. It is further stated that only after giving the statement, signatures were obtained from his wife in papers and she was released. The accused has not chosen to examine his wife as defence witness in this aspect and there is no other material to show his wife was detained. In such circumstances, this Court is unable to accept the contention of the learned counsel for the appellant that the confession statement was not given voluntarily. 13. The Evidence of P.W .1 S. Mukundan is corroborated by the evidence of P. Ws.2 to 4, 7 and 8. Further, it is well corroborated by the statement given by A.2 under Section 67 of the Act. According to the evidence of the witnesses, the contraband was available in the house of A.1 and at the time of search, A.2 was also present in the house and the contraband was produced by both the accused. A perusal of Exhibit P-27 Statement of the second accused shows that the appellant was aiding the first accused. On 15. 2003, A.2 was given 3 kgs. of heroin by Agarwal to hand-over the same to A.1 and A.2 only kept it in the house of A.1. Possession of heroin to be transported it to some one, brings out the involvement of A.2 along with A.1 in the offence. Therefore, the contention of the learned counsel for the appellant that mere presence of A.2. in the house of A.2 would not make out the ingredients of the offence under Section 8(c) of the Act, is only to be rejected. 14. Though parsons of locality have not been taken as witnesses for search and seizure, P.W.2, who is a responsible person as Village Administrative Officer of Erode Town, was summoned to be a witness and he stood as a witness. Nothing has been brought out to discredit his evidence in the cross-examination. We therefore hold that the prosecution has proved its case beyond reasonable doubt against the appellant herein. 15. Nothing has been brought out to discredit his evidence in the cross-examination. We therefore hold that the prosecution has proved its case beyond reasonable doubt against the appellant herein. 15. With regard to the sentence imposed on the appellant/A.2, the trial Court has imposed a sentence of 14 years Rigorous Imprisonment and a fine of Rs. 2,00,000/-, in default to undergo three years Rigorous Imprisonment for the offence under Section 8(c) read with Section 21(c) and Section 29 of the NDPS Act. It appears that though there are two convictions – one under Section 21(c) and another under Section 29 of the NDPS Act, only one sentence is imposed and no separate sentence is awarded under Section 29 of the Act. According to the learned counsel for the appellant, the minimum sentence provided under the Act is only ten years Rigorous Imprisonment, but the learned Judge imposed more than the mini-mum sentence prescribed thereunder without any specific and special reasons. The learned counsel further submits that the appellant also is unable to pay the fine amount of Rs. 2,00,000/-, which is a huge amount and even according to the prosecution, he is only a carrier and he is in prison from 17,5.2003. As per Section 21(c) of the NDPS Act, the maximum punishment provided is 20 years imprisonment and it should not be less than ten years and the fine amount also to be imposed to an extent of Rs. 2,00,000/-, but, should not be less than Rs. 1,00,000/-. Section 32(B) of the NDPS Act is as follows: "32 -B. Factors to be taken into account for imposing higher than the minimum punishment. – Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the Court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely: (a) the use or threat of use of violence or arms by the offender; (b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence? (c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence; and (d) the fact that the offence is committed in an educational institution or social service facility or in their immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities; (e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offence; and (f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence. Objects and Reasons Clause 14. – The UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, requires that certain factors are to be considered for imposing higher punishment to drug offenders. This clause seeks to provide for the same, by insertion of new Section 32-B." In respect of quantum of punishment, we have to state that from the Scheme of the Act, more particularly Section 32-B of the Act, it could be understood (sic) that in normal circumstances, the Court is expected to imposts the minimum sentence prescribed under the particular penal provision. Only if the Court feels that there are certain factors as it may deem fit to be taken into account; if the case falls under any one of the factors enumerated in Section 32-B of the Act, the Court is expected to impose higher punishment. While so, the Court has to mention the factors taken into consideration. In this case, the trial Court has not taken into consideration the provisions under Section 32-B of the NDPS Act and has not assigned any specific reason for imposing the punishment of 14 years. We do not find any factor enumerated under Section 32-B of the NDPS Act in the facts and circumstances of the case to impose a punishment higher than the minimum punishment. 16. For the said reason, the punishment imposed on the appellant/A.2 Yasser Arafat for the offence under Section 8(c) read with Section 21(c) and Section 29 of the NDPS Act is modified to the extent that he shall undergo Rigorous Imprisonment for a period of tan years and pay a fine of Rs. 1,00,000/-in default, to undergo Rigorous Imprisonment for six months. 1,00,000/-in default, to undergo Rigorous Imprisonment for six months. With the above modification in the sentence awarded, the appeal is allowed to the extent indicated above. Appeal allowed.