JUDGMENT : Mr. K.S. Jhaveri, J. Criminal Appeal No. 2259 of 2006, Criminal Appeal No. 1217 of 2006 and Criminal Appeal No. 1284 of 2006 have been preferred by shobhram Kamlaprasad Shukla, Mohmad Mujahid Shaikh and Basirshah Noorsha, the original accused Nos. 3, 1 & 2 respectively, under Section 374 (2) of the Code of Criminal Procedure, challenging the Judgment and order dated 10.04.2006, passed by the learned Additional Sessions Judge, Court No.7, City Civil & Sessions Court, Ahmedabad in Sessions Case No. 58 of 2002, whereby the learned Additional Sessions Judge held all the accused guilty for the offence punishable under Section 21 read with Section 8 and under Section 29 of N.D.P.S. Act. 2. It is the case of Narcotic Control Bureau (N.C.B.), Zonal Unit at Ahmedabad that a specific information was received by one of the officers of N.C.B., A.Z.U that one person named Mohmmed Mujahid, resident of Barabanki, Tehsil-Navabgarh, Uttar Pradesh, along with another person Shobharam Kamlaprasad Shukla, resident of D-69, Rushabhdev Nagar, Adinath Nagar, Odhav, Ahmedabad, will come near Panetar Palace Guest House, Odhav Road, Ahmedabad on Kinetik Honda Scooter bearing registration No.GJ-1-LL-7492 to take delivery of Brown Sugar (heroin), a narcotic substance, on 10.11.2001. The said brown sugar will be brought by one Nazimkhan Pathan, resident of village Paravaliya, Tehsil Jawra, District Ratlam (M.P.) or one of his associates at around 17.00 hrs. at the above destined place. On reducing the said information in writing the same was brought to the notice of superior officer and joint team comprising of NCB Officers, staff and officers of Anti-Terrorist Squad, Gujarat Police, along with two panchas reached near Panetar Palace Guest House and two separate groups were formed and surveillance was kept and they found one white Kinetic Honda Scooter bearing registration No. GJ-1-LL-7492 at around 17.05 hrs. on which two persons were found riding as described in the information and they continued to keep watch and waited for other party to come. on which two persons were found riding as described in the information and they continued to keep watch and waited for other party to come. And after some time two persons riding on a Suzuki motorcycle came there and stood near the Kinetic Honda scooter and the person who was sitting on the backside (as pillion rider) of the motorcycle was carrying a box of stove and the person who was bald on forehead talked with the person who was driving the Suzuki motorcycle and thereafter the bald headed person handed over a bundle of currency notes to the person driving the Suzuki motorcycle and this person took the box from his companion and handed it over to the bald headed person and this person in turn handed the box to his companion sitting as a pillion rider. As soon as this bald headed person tried to start his kinetic Honda scooter, the team of NCB immediately surrounded them and seizing officer introduced himself and all the team members to all four of them in presence of both panchas. Seizure of stove was from the person sitting as a pillion rider on kinetic Honda scooter who introduced himself as Mohammed Mujahid and the one driving the kinetic Honda scooter was Shobhram Kamlaprasad Shukla, whereas Basirsha Noorshah was driving the Suzuki motorcycle and Surendrasingh Sisodiya was sitting on back seat of Suzuki motorcycle. 2.1 After compliance of Section 50 of N.D.P.S. Act when the search was made, N.C.B. recovered Maharaja Wick Stove with steel tank and on opening nut and bolts fixed on its kerosene tank portion and by removing the wick stand, a plastic polythene was found which contained brownish powder like materials. On preliminary test, it was found to be 'brown sugar' and Rs.35,000/- was also found from Basirshah and there were other documents which were recovered and marked. There was no recovery from Surendrasingh, a pillion rider of Suzuki motorcycle. All of them were summoned under Section 67 of the N.D.P.S. Act and their statements were recorded and thereafter on due investigation three out of the four persons were charge-sheeted and the fourth person, namely, Nazimkhan, who is alleged to be a regular narcotic drug supplier, is absconding till the date. All of them were summoned under Section 67 of the N.D.P.S. Act and their statements were recorded and thereafter on due investigation three out of the four persons were charge-sheeted and the fourth person, namely, Nazimkhan, who is alleged to be a regular narcotic drug supplier, is absconding till the date. 2.2 The charge-sheet in the form of complaint was lodged against the appellants – accused for the offences punishable under Sections 21 and 29 read with Section 8(c) of N.D.P.S. Act. The charges against all the accused had been filed on 5.9.2002 where they pleaded not guilty and claimed to be tried. 2.3 The prosecution has examined following witnesses to prove the case against the accused : (1) Panch Kaushikkumar Purshottamdas Mehta, Exh.15; (2) Umesh Jayantkumar Pathak, (Seizing Officer) Exh.31; (3) Markand Kantilal Pathak (FSL Expert), Exh.59 (4) Pavansinh Tomar (Zonal Director, NCB), Exh.62; (5) I.O. Shailendra Lodha, (Int. Officer of NCB) Exh.65; (6) Abhaysinh devisinh Chudasma (SP), Exh.75; 2.4 The prosecution has also produced following documents : (1) Submission of Information u/s. 42(2) of NDPS Act, 1985 dated 10.11.2001, Exh. 32; (2) Offers made u/s.50 of NDPS Act Exh.16 to Exh.20; (3) Summons u/s.67 of NDPS Act issued to Surendrasingh Sisodiya, dated 10.11.2001, Exh. 34; (4) Statement of Surendrasingh Sisodiya u/s. 67 of NDPS Act, dated 10.11.2001, Exh. 38; (5) Summons u/s. 67 of NDPS Act issued to Mr. Shobharam Kamlaprasad Shukla, dated 10.11.2001, Exh. 35; (6) Arrest Memo of Shobharam Kamlaprasad Shukla dated 11.11.2001, Exh. 42; (6A) Statement of Shobhram Kamlaprasad Shukla, recorded u/s. 67 of NDPS Act on 11.11.2001, Exh. 40; (7) Summons u/s. 67 of NDPS Act, issued to Basirshah Noorshah on 10.11.2001, Exh. 36; (8) Statement of Basirshah Noorshah u/s. 67 of NDPS Act, dated 11.11.2001, Exh. 39; (9) Arrest Memo of Basirshah Noorshah, 11.11.01, Exh.43; (10) Summons u/s.67 of NDPS Act issued to Mohmmed Mujahid Fana Mohmmed Jabir Shaikh, 10.11.2001, Exh. 37; (11) Statement of Mohmmed Mujahid Fana Mohmmed Jabir Shaikh u/s 67 of NDPS Act, dated 11.11.2001, Exh. 41; (12) Arrest memo of Mohmmed Mujahid Fana Mohmmed Jabir Shaikh, dated 11.11.2001, Exh. 39; (9) Arrest Memo of Basirshah Noorshah, 11.11.01, Exh.43; (10) Summons u/s.67 of NDPS Act issued to Mohmmed Mujahid Fana Mohmmed Jabir Shaikh, 10.11.2001, Exh. 37; (11) Statement of Mohmmed Mujahid Fana Mohmmed Jabir Shaikh u/s 67 of NDPS Act, dated 11.11.2001, Exh. 41; (12) Arrest memo of Mohmmed Mujahid Fana Mohmmed Jabir Shaikh, dated 11.11.2001, Exh. 44; (13) Receipts of telegram intimating of arrest of the accused to the respective family members, dated 10.11.2001, Exh.45; (14) Report u/s. 57 of NDPS Act, dated 11.11.2001, Exh.46; (15) Forwarding letter for sending drug samples along with test memo for chemical analysis to FSL, Ahmedabad, and receipt thereof dated 11.11.2001, Exh.47; (16) Detailed test report received from FSL, Ahmedabad, dated 28.11.2001, Exh. 48; (17) Forwarding letter for sending drug samples along with test memo from chemical analysis to CRCL, New Delhi and receipt thereof dated 11.11.2001, Exh. 49; (18) Detailed test report received from CRCL, New Delhi, dated 28.2.2002, Exh. 50; (19) Letter addressed to CWC, Ahmedabad, to deposit kinetic Honda (No.GJ-1-LL-7492) and Suzuki Motorcycle (No. MP-43-B-1650) dated 13.11.2001, Exh. 63; (20) Application u/s. 55 made in the Hon'ble High Court to deposit the muddamal in the case and receipt thereof issued by the Nazir, dated 23.4.2002, Exh. 66; (21) Copy of R.C.Book of vehicle No.GJ-1-LL-7492, Exh.79; (22) Reply of retraction of accused Shobhram Shukla, Exh.64; 3. After appreciating the documentary as well as oral evidence the learned Additional Sessions Judge, Court No.7, Ahmedabad, has vide Judgment and order dated 10.04.2006, held the accused Nos.1 & 2 guilty for the offence punishable under Section 21 read with Section 8 of NDPS Act and awarded sentenced to them to suffer RI for 10 years with fine of Rs.1,00,000/- each (Rupees one lac each) i/d to suffer RI for one year. The learned Judge held the accused No.3 guilty for the offence punishable under Section 21 read with Section 8 of NDPS Act and awarded sentence to him to suffer RI for 10 years with fine of Rs.2,00,000/- (Rupees two lacs). The learned Judge also held all the accused guilty for the offence punishable u/s. 29 of NDPS Act and sentenced them to suffer RI for 10 years. The learned Judge ordered all the sentences to run concurrently. The learned Judge also held all the accused guilty for the offence punishable u/s. 29 of NDPS Act and sentenced them to suffer RI for 10 years. The learned Judge ordered all the sentences to run concurrently. The learned Judge also ordered that the time they have spent in the judicial custody during their status of under-trial prisoners shall be given as set off. 4. Against the said Judgment and order of conviction dated 10.04.2006 passed by the learned Additional Sessions Judge, Court No.7, Ahmedabad, in Sessions Case No. 58 of 2002, the appellants – original accused have preferred above mentioned Criminal Appeals, through their respective learned Advocates. 5. We have heard learned Counsel Mr. Rajesh M. Agrawal for the appellant – original accused in Criminal Appeal No.2259 of 2006; learned Counsel Mr. Ashish Dagli for the appellant – accused in Criminal Appeal No.1217 of 2006 and learned Advocate Mr. Harshad K. Patel for the appellant – accused in Criminal Appeal No.1284 of 2006, learned Counsel Mrs. Vasavdatta Bhatt and learned Counsel Mr. N.D.Gohil, appearing on behalf of intelligence Officer and learned Counsel Mr. R.C. Kodekar, appearing on behalf of the respondent – State of Gujarat in all the matters. 6. Learned Counsel Mr. Agrawal, appearing on behalf of appellant – original accused (in Criminal Appeal No. 2259 of 2006) has made the following contentions : (1) That the genuineness of the case of the prosecution is doubtful from the very beginning and this is a clear-cut case of false implication of accused No.3. He has also contended that the initial possession of box of stove from which the brown sugar was concealed in the kerosene tank was initially found from the possession of surendrasing Sisodiya, who was a pillion rider of Suzuki motor. He, therefore, contended that the genuineness of the case of the prosecution and the investigation of such case and seizure of contraband is doubtful from the very beginning and there is all possibility of false implication of accused No.3. (2) Mr. Agrawal has also contended that it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof since a higher degree of assurance is required to convict the accused; (3) Mr. (2) Mr. Agrawal has also contended that it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof since a higher degree of assurance is required to convict the accused; (3) Mr. Agrawal has also contended that there is total noncompliance of provisions of Section 42(1) and Section 42(2) of the Act and on this ground alone the accused No.3 deserves to be acquitted as the said provisions are held to be mandatory. (4) Mr. Agrawal also contended that the alleged contraband is not proved to be brown sugar/heroin as defined under Section 2(xvi)(d) of the Act. (5) He has also contended that there is no evidence regarding the percentage of purity of alleged heroin/brown sugar in the report of FSL, Ahmedabad, as well as of CRCL, New Delhi. After referring both the above reports Mr. Agrawal has contended that it becomes crystal clear that the quantitative test was not conducted to determine the quantity of diacetyl morphine(heroin) in the sample analysed by both the Laboratories and when there is absence of percentage of diacetyl morphine, it cannot be said that what was the quantity of heroin/brown sugar alleged to be seized in this case by the officers of NCB and for want of opinion of experts in both the reports Exh.48 & 50, it cannot be determined whether the quantity of heroin/brown sugar was a small quantity or a commercial quantity of narcotic drug alleged to be recovered. He also contended that the trial Court, while appreciating the expert evidence, ought to have kept in mind the quantity of the neutral substance or substances is not to be considered for determining whether a small quantity or a commercial quantity of narcotic drug or psychotropic substance is recovered. (6) He has also contended that the trial Court, while appreciating the prosecution evidence, more particularly Exh.48 and 50, ought to have kept in view that only the actual content of weight of the narcotic drug and psychotropic substance is relevant for determining whether it would constitute a small quantity or commercial quantity. (6) He has also contended that the trial Court, while appreciating the prosecution evidence, more particularly Exh.48 and 50, ought to have kept in view that only the actual content of weight of the narcotic drug and psychotropic substance is relevant for determining whether it would constitute a small quantity or commercial quantity. The actual weight of diacetyl morphine in the substance recovered in this case cannot be determined and when it is so, then the Court can not come to the conclusion that the alleged quantity seized in this case by the officers of NCB is commercial quantity as per the notification issued by the Central Government vide Notification No. S.O. No. 1055(E) dated 2.10.2001 under Section 2(vii-a) and 2(xxviii-a) of the Act. (7) He has also contended that when there is no evidence regarding percentage of purity of heroin/brown sugar then it cannot be said that the quantity alleged to be seized in this case was two kg. brown sugar because the weight has got its own importance after the drastic amendments were made in the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act No.9 of 2001) which came into force on 2.10.2001 and graded punishment is provided for the graded quantity of contraband and for want of this type of evidence, real, substantial and complete justice cannot be done by this Court and it can only be said that the prosecution has failed to prove what was alleged to be seized in this case was heroin/brown sugar as defined in the Act. (8) He contended that if the Reports Exh. 48 and 50 are taken into consideration then it becomes crystal clear that they do not contain the reasons and, therefore, the said reports have no value in eye of law. To support his contention Mr. Agrawal has also relied upon a decision of this Court in the case of Suleman Usman Memon v. State, reported in 1961 GLR 402 (9) He has also contended that the experts have not conducted the quantitative analysis of the sample and, therefore, it cannot be said that the contraband alleged to be seized was heroin/brown sugar or what was the purity or percentage of heroin/brown sugar analysed by the experts and, therefore, the prosecution has failed to prove the purity percentage of heroin/brown sugar in the sample analysed by the experts. (10) He contended that the identity of muddamal sent for analysis are not established and there is all possibility of tampering with the contents of sample as the samples were not kept in safe and proper custody and the sealing procedure is also defective. There is also no clear and reliable evidence to show as to in whose custody the samples and muddamal remained till they were sent to laboratories for analysis. (11) Mr. Agrawal has also contended that the panch witnesses are the selected witnesses of NCB and the panch witnesses were not the independent witnesses. (12) He also contended that the legal jugglery is apparent on the part of the officers of NCB, because as per the case of prosecution the alleged contraband was seized from the kerosene tank of a stove and the accused No.1, accused Nos.1 and 2 and one Surendrasing Sisodiya were present and in their presence the alleged contraband was seized under the panchnama. However, the officers of NCB did not arrest them then and there and issued summons u/s. 67 of the Act and after recording their statement they were arrested. (13) He contended that the so called statement Exh. 40 of the accused No.3 is completely hit by Section 24 of the Evidence Act and the statement of accused No.3 cannot be said to be perfectly voluntary confession and the same cannot be said to be true and trustworthy. (14) He also contended that the prosecution has not examined the carrier to prove the movement of samples and this is the vital defect in the prosecution evidence which goes to the root of the case and on this ground alone the prosecution case ought to have been thrown by the trial Court as not believable. There is no evidence at all either direct or circumstantial from which the conspiracy can be inferred. Not a single ingredient of conspiracy as defined u/s. 120A of I.P. Code is satisfied and not a single ingredient for abetment as defined u/s.107 of I.P. Code is ex-facie satisfied and there is no evidence regarding hatchment of criminal conspiracy or abetment by the accused No.3 with other co-accused. (15) He has also contended that the whole evidence is concocted and fabricated to falsely implicate the accused and there are material contradictions, omissions in between the depositions of the prosecution witnesses. (16) Learned Counsel Mr. (15) He has also contended that the whole evidence is concocted and fabricated to falsely implicate the accused and there are material contradictions, omissions in between the depositions of the prosecution witnesses. (16) Learned Counsel Mr. Agrawal has relied upon the following decisions : (A) State of Nct of Delhi v. Ashif Khan @ Kalu, reported in 2009 (1) Criminal 599; (B) Noor Aga v. State of Punjab & Anr., reported in 2008 (3) GLH 43 ; (C) U.O.I. v. Bal Mukund & Ors., reported in 2009(3) Supreme 170 ; 6.1 Learned Counsel Mr. Dagli, appearing on behalf of the appellant in Criminal Appeal No.1217 of 2006 has made the following contentions : (1) That the accused No.1 has no knowledge about the contraband item in the parcel. The prosecution has not proved that the accused has knowledge about the transaction or for what purpose all the accused have gathered at the time of trap. (2) He has further contended that the prosecution has failed to prove that the present appellant was involved in the crime in question. He has further relied upon the document panchnama and contended that since the Investigating Officer has admitted in his cross examination that he has not produced the original sheet which he has recorded the information and, therefore, mandatory requirement of Section 42 of the Act is not complied with. (3) He has also contended that the prosecution has allowed Surendrasing Sisodiya to go and, therefore, the prosecution has adopted method of pick and choose. He also contended that the case of accused No.1 is also identical and, therefore, he would have also been discharged from the said offence. 6.2 Learned Counsel Mr. Patel, appearing for the appellant in Criminal Appeal No. 1284 of 2006 has adopted the arguments/contentions raised by learned Counsel Mr. Agrawal and learned Counsel Mr. Dagli, appearing on behalf of other appellants and contended that the prosecution has failed to prove the case against the appellants – accused. 6.3 Learned Counsel Ms. Vasavdatta Bhatt and Mr. N.D. Gohil, appearing on behalf of NCB and learned APP Mr. Agrawal and learned Counsel Mr. Dagli, appearing on behalf of other appellants and contended that the prosecution has failed to prove the case against the appellants – accused. 6.3 Learned Counsel Ms. Vasavdatta Bhatt and Mr. N.D. Gohil, appearing on behalf of NCB and learned APP Mr. Kodekar, appearing on behalf of the State, have contended that Exh.32 was executed and it was not objected to at any time of exhibition of the same and the contents thereof were proved and the same were received by the superior Officer and on a plain reading of Exh.32, (Page – 561) it is established that original information was reproduced. They have specifically contended that Section 42/2 of the Act is complied with and original sealed cover is also referred to in the said documents. 6.4 They have also contended that the offer at Page 431, 433 and 437 (Exh. 16, 17 & 19) respectively for accused Nos.1, 2 and 3 are proved by the prosecution. They have also contended that the requirement under Section 66 (Page – 749) and under Section 57 (Exh.46) are also complied with and FSL Report (Exh. 48) clearly established that it is contraband item and there are all the ingredients which were referred to in the contraband items and, therefore, they are prescribed under the NDPS Act. They have also contended that from Exh.50 (Test Memo) it is clearly established that the contraband items were prescribed under the Act. They have further contended that from the panchnama (Page – 439) and the statement of panchas Exhs.39 and 49 it clearly established the case against the accused. In that view of the matter the prosecution has proved its case beyond reasonable doubt. Dated : 23-7-2009 : 6.5 Learned Counsel Ms. Bhatt has relied upon a decision of this Court, rendered in Criminal Appeal No.1702 of 2004 with Criminal Appeal No.2097 of 2004. 6.6 Mrs. Bhatt has also relied upon a decision in the case of Kanhaiyalal v. Union of India, reported in (2008) 4 SCC 668 , more particularly Para – 40 & 45 of the decision, which reads as under : "40. 6.6 Mrs. Bhatt has also relied upon a decision in the case of Kanhaiyalal v. Union of India, reported in (2008) 4 SCC 668 , more particularly Para – 40 & 45 of the decision, which reads as under : "40. From the facts of the case and the submissions made on behalf of the respective parties the point which emerges for determination is up to what extent can a statement under Section 67 of the N.D.P.S. Act be relied upon for convicting a person accused of having committed an offence under the provisions of the said Act. In order to arrive at a decision in regard to the above, it will also have to be considered whether such a statement would attract the bar both of Sections 24 to 27 of the Evidence Act as also Article 20(3) of the Constitution of India. For the aforesaid purpose, the provisions of Section 67 of the N.D.P.S. Act are reproduced herein below : "67. Power to call for information, etc. - Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a Statement Government may, during the course of any enquiry in connection with the contravention of any provision of this Act - (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case." 45. Considering the provisions of Section 67 of the N.D.P.S. Act and the views expressed by the Court in Raj Kumar Karwal case with which we agee, that an officers vested with the powers of an officer in charge of a Police station under Section 53 of the above Act is not a "police officer" within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the N.D.P.S. Act is not the same as a statement made under Section 161 of the Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the N.D.P.S. Act to be used as a confession against the person making it and excludes it from the operation of Section 24 to 27 of the Evidence Act." 6.7 Learned A.P.P. Mr. Kodekar has relied upon a decision reported in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42 . Head Note "D" & "E" read as under : "D" Precedents – precedent on facts – Overruling on facts – Held, there are no such things – Similarity of facts in one case cannot be used for bear in mind the conclusion of fact in another case, especially in criminal cases – Therefore the question of overruling a judgment on facts does not arise – On facts, Jayendra Saraswathi case, (2005) 2 SCC 13 only distinguished Kalyan Chandra Sarkar case, (2004) 7 SCC 528 and could not have overruled it, since both cases were decided on their individual facts – Constitution of India – Article 141. "E" Precedents – Ratio decidendi of a case – Scope and applicability – Held, a court will have to bear in mind that every judgment must be read as applicable to the particular facts proved or assumed to be true, since the generality of expressions which may be found therein are not intended to be expositions of the whole of the law, but are governed and qualified by the particular facts of the case in which such expressions are to be found – A case is only an authority for what it actually decides, and not what logically flows from it – Constitution of India – Article 141 – common law – nature of." 6.8 Counsel for the respondents have also relied upon State of Tamil Nadu through Superintendent of Police, C.B.I./S.I.T. v. Nalini, AIR 1999 SC 2640 (Rajiv Gandhi murder case), important portion of the said decision reads as under : "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out, cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offence.......... Section 120-B make conspiracy a substantive offence and render the mere agreement to commit an offence punishable. Even if an overt act does not take place pursuant to the illegal agreement, the offence of conspiracy would still attracted. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. The unlawful agreement and not its accomplishment is the essence of the crime of conspiracy. The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, not in attempting to do it, nor in inciting before others to do it, but in the forming of the scheme or agreement between the parties...." 7. We have heard both the sides and perused all the relevant records. Firstly, there is no dispute about certain facts. The trap was laid and the seizure had taken place on the public road in open and it was not in the enclosed place. The accused were apprehended and 2.016 kgs. of brown sugar were found in a stove in the kerosene tank. Firstly, there is no dispute about certain facts. The trap was laid and the seizure had taken place on the public road in open and it was not in the enclosed place. The accused were apprehended and 2.016 kgs. of brown sugar were found in a stove in the kerosene tank. The same was seized and sample was sent to F.S.L.F.S.L. concluded that the said article to be brown sugar (heroin). All the three accused were found to be involved in possession and transacting without valid licence of narcotic substance. 7.1 These Appeals are filed by the original accused – convict in a very serious case where the question involved is whether the procedure followed by the officer under the provisions of the N.D.P.S. Act is proper or not Section 42(2) of the N.D.P.S. Act reads as under : "42(2) 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." 7.2 On a complete and conjoint reading and oral as well as documentary evidence it is clearly established that secret information, which was received, was prescribed by the officer concerned and the same was sent to the Superior officer in a sealed cover which has been produced on record. In that view of the matter, we are of the opinion that the officer concerned has duly complied with the mandatory provisions as provided under Section 42(2) of the Act. Therefore, the contention which has been raised by the appellants regarding noncompliance of mandatory requirement is devoid of any merit and deserves to be rejected and the view taken by the Sessions Court is required to be approved. 7.3 The contention regarding quality of product, we are of the opinion that the contraband item which was seized is not a natural product. It is a manufactured item and all ingredients were found to be prohibited items which is clear from the FSL Report (Exh.50) (which is at page – 683). Important part of the said report reads as under : 1. Date of receipt in the Laboratory – 16.11.2001 2. Weight (net weight) as found in laboratory – (1) CLD – 639 (N) – 6.2 gms.; (2) CLD – 640 (N) – 6.4 gms. 3. Important part of the said report reads as under : 1. Date of receipt in the Laboratory – 16.11.2001 2. Weight (net weight) as found in laboratory – (1) CLD – 639 (N) – 6.2 gms.; (2) CLD – 640 (N) – 6.4 gms. 3. Date of conducting the test result of - (a) Qualitative tests - ........test, Chromatographic and microscopic examination; (b) Results of quantitative test – Percentage of morphine contents – (i) CLD – 639 =17.5 % (2) CLD 640 = 13.6 % (c) General observation of the chemist – Each of the two samples contains morphine, codeine, thebaine, narcotine, papaverine and meconic acid. Even as per the opinion of Scientific Officer, F.S.L., (Page – 673) it clearly established that from the samples during analysis Morphine, codeine, thebaine, papaverine, narcotine, 6-mono acetile morphine, acetile codeine and dyeacetile morphone (heroin) were found present. When the above articles are present then generally it called crude heroin and in the market it is always identified as brown-sugar and as per the provisions of Section 16(b) and 16(c) of the Act the opinion prescribed by way of chemical process then it is not a natural product, but it is a bye-product. From the Report of F.S.L., the above contents found from the sample of brownsugar shows that the brown-sugar is not a natural product, but it is bye-product and, therefore, the question of purity can only be arisen when the contraband is a natural product. In that view of the matter the contention of the appellants regarding quality of substance is devoid of merits. 7.4 Apart from that, merely because the purity test is not done, it cannot be said that accused are falsely roped in an illegal act. There is a report of F.S.L., which has been exhibited and the same was never challenged. We are of the opinion that this is a manufactured item and from the F.S.L. report it is clear that it is a contraband item. We are of the opinion that the contraband item which was seized by the Authority is completely pure brown sugar which is a manufactured item and it is a huge quantity of 2 kgs. and, therefore, the view taken by the Sessions Court is just and proper. 8. We are of the opinion that the contraband item which was seized by the Authority is completely pure brown sugar which is a manufactured item and it is a huge quantity of 2 kgs. and, therefore, the view taken by the Sessions Court is just and proper. 8. As regards the decisions of the Hon'ble Apex Court, which have been relied upon, we are of the opinion that the procedure which was followed by the defence in Supreme Court Judgment has not been followed in this case. There was no application of defence to send the seized items for purity of substance and, therefore, we are of the opinion that the facts of the Supreme Court Judgments will not apply in the facts of the present case. In view of decision reported in (2005) 2 SCC 42 , we are of the opinion that the Judgment will apply prospectively. 8.1 The contention on behalf of accused No.1 that he had no knowledge and he has only accompanied the accused No.2, but from the conduct and the circumstances, we are of the opinion that huge amount of Rs.35,000/- received from the accused No.1 and it cannot be believed to be without his knowledge and such a huge amount cannot be paid by the co-accused which was the market value of contraband items. Even in view of Section 120-A and Section 8 of Evidence Act, we are of the opinion that the conduct of the accused is very clear and they have gone with particular motive. In that view of the matter, we are of the opinion that the view taken by the trial Court is just and proper. 9. In view of above, we are in complete agreement with the view taken by the Sessions Court and no interference is required to be called for. 10. Accordingly, all these Appeals fail and are hereby dismissed. The Judgment and order dated 10.4.2006 passed by the learned Additional Sessions Judge, Ahmedabad, in Sessions Case No.58 of 2002 is hereby confirmed. Bail Bonds, if any, shall stand cancelled. Record & proceedings be sent back to the trial Court. Appeals dismissed.