Judgment : T. SUDANTHIRAM, J. 1. This Criminal Appeal is filed against the judgment passed by the learned Special District and Sessions Judge (N.D.P.S. Act), Madurai in C.C. No. 469 of 1997, dated 31.5.1999. 2. The appellant herein is the Intelligence Officer, Narcotics Control Bureau, who filed a complaint against the respondents/Al and A2 herein. The respondents/A1 and A2 were acquitted by the learned Special District and Sessions Judge (N.D.P.S. Act), Madurai in C.C. No. 469 of 1997 from the charges under Section 8 (a) read with 29 and 8(c) read with 21 of the Narcotic Drugs and Psychotropic Substances Act. Against the said acquittal, the appellant has preferred this criminal appeal. 3. The case of the prosecution in brief is that one Mohan, Superintendent of Narcotics Control Bureau received an intimation on 9.6.1997 at about 3.00 p.m. that one Baskaran is to come near the Hotel Park Plaza and Hotel Supreme in the night at about 11.00 p.m. and he would bring 5 kgs, of heroin along with him, being accompanied by some other persons. The said information was recorded by P.W.1 and he has also informed to the Assistant Director. As directed by the Assistant Director, the officers of Narcotics Control Bureau, South Zonal Unit, Chennai (Camp at Madurai) along with the Officers of Central Excise, Madurai Commissionerate went to the West Perumal Maistry Street, Madurai and they were keeping surveillance near Hotel Park Plaza and Hotel Supreme. At about 11 p.m., both the accused Nos. 1 and 2 by name Baskaran and Richard Jeevakumar @ Jeeva came in a Bajaj M-80 Moped bearing Reg. No. TN-69-A-7171. They were intercepted by the Intelligence Officer-P.W.1 and others. Both the accused revealed their names. The officers explained about the Section 50 of N.D.P.S. Act and enquired them whether they require to be searched in the presence of the Gazetted Officer or before any Judicial Magistrate. The accused stated that it was not necessary and the search could be made by those officers themselves. The first accused viz., Baskaran handed over a white colour cloth bag to the officers and while the bag was searched, it contained four polythene packets. On opening the packets, in each packet heroin was found containing 1.375, 1.430, 1.510, 1.660 kgs. From each packet, two samples of each 5 grams were taken and that was sealed. The packets with remaining contraband were also sealed. On opening the packets, in each packet heroin was found containing 1.375, 1.430, 1.510, 1.660 kgs. From each packet, two samples of each 5 grams were taken and that was sealed. The packets with remaining contraband were also sealed. A mahazar-Exhibit P-2 was also prepared for search and seizure in which, P.W.12 and another one Raju also signed as witnesses and the copy of the mahazar was also served to the accused. Both the accused were summoned by P.W.1 to appear before the Officer of the Commissioner of Central Excise, Madurai. In the Office, both of them gave voluntary confession statements, which were recorded by P.W.11. Exhibits P-66 and P-68 are the statements given by the accused Nos. 1 and 2 respectively. Both the accused were arrested on 10.6.1997 at 6 p.m. and 8 p.m. respectively and they were remanded to judicial custody on 11.6.1997. 4. The prosecution, in order to establish its case, examined 12 witnesses, marked 73 exhibits and produced 14 materials objects. 5. When the accused were questioned under Section 313 of Cr.P.C. with reference to the incriminating Materials adduced by the prosecution against them, the accused denied their complicity in the crime and pleaded innocence. The second accused filed a written statement. 6. The trial Court, after considering the evidence, acquitted both the accused from all the charges. 7. The learned Special Public Prosecutor appearing for the appellant vehemently submitted that the trial Court had acquitted the accused on flimsy grounds and though the prosecution established the case without any shadow of doubt that the accused were in possession of the contraband of heroin, both of them were acquitted. 8. The learned Special Public Prosecutor further submitted that the reasons for acquittal given by the trial Court are as follows: (i) The information recorded in Exhibit P-1 did not contain the name of the vehicle in which the accused came. (ii) The prosecution had not established the compliance of Section 50 of N.D.P.S. Act as there was no acknowledgement from the accused. (iii) No incriminating material was found in the house of A-1 and Section 50 of N.D.P.S. Act was not complied with while the house was searched. (iv) The statements recorded from the accused under Section 67 of N.D.P.S. Act were not voluntary in nature and that was not attested by any independent witness. (iii) No incriminating material was found in the house of A-1 and Section 50 of N.D.P.S. Act was not complied with while the house was searched. (iv) The statements recorded from the accused under Section 67 of N.D.P.S. Act were not voluntary in nature and that was not attested by any independent witness. (v) The samples taken on 11.6.1997 were sent from Madurai to Chennai on 13.6.1997, therefore, there was a delay in sending the samples. (vi) The Chemical Analyst report was jointly given by two persons, one by P.W.3 and another by one Thiyagarajan, but the said Thiyagarajan was not examined. (vii) P.W.12, the independent witness who attested the mahazar, turned hostile. 9. The learned Special Public Prosecutor attacked all the reasons given by the trial Court for acquitting the accused. It was submitted that Section 50 of N.D.P.S. Act has been complied by the prosecution and even the witnesses P.Ws.1 and 6 have clearly spoken about the compliance of Section 50 of N.D.P.S. Act and further in Exhibit P-2 also, it is mentioned. As far as statement recorded from the accused under Section 67 of N.D.P.S. Act is concerned, it was not retracted by the accused at an earlier stage and only at the fag end of the trial, the accused have denied their statement. 10. The learned Special Public Prosecutor further submitted that though the samples collected on 11.6.1997 were sent from Madurai to Chennai on 13.6.1997, according to the analyst/P.W.3, seal on the samples vere found intact. Though P.W.12, independent witness turned hostile, he had earlier given a statement to the Officer under Section 67 of N.D.P.S. Act and that statement has been marked as Exhibit P-36. 11. Mr. S. Shanmugavelautham, learned senior counsel appearing for the respondents/accused Nos. 1 and 2 submitted that according to the evidence available, the Superintendent by name Mohan only explained about the Section 50 of N.D.P.S. Act to the accused, but in order to establish, the said Mohan has not been examined and as far as Exhibit P-1 is also concerned, the information also was received by the officer Mohan but he has not been examined as stated earlier. Even in the Section 67 statement said to have been recorded from the accused Nos. 1 and 2, the time was not mentioned and the statements were not voluntary in nature. 12. Even in the Section 67 statement said to have been recorded from the accused Nos. 1 and 2, the time was not mentioned and the statements were not voluntary in nature. 12. The learned senior counsel also submitted that as far as the second accused is concerned, his name was not mentioned in Ex. PI and even according to the prosecution case, he was not in possession of the bag or in possession of the alleged contraband and there is no other material to show that he had a knowledge about the bag which was in possession of the first accused containing heroin. The learned senior counsel for the respondents/accused Nos. 1 and 2 drew the attention of this Court to the answer given by P.W.11 the officer, who recorded Exhibit P-68, in which it is admitted that the second accused did not state that he was knowing about the contraband which was kept in white bag. 13. The learned senior counsel also pointed out that though there is a charge for conspiracy, one of the accused by name Syed Nasar of Bangalore, who is said to have been staying in the Hotel Park Plaza and from whom the contraband is said to have been purchased by A-1 is not included as accused in the complaint and there is no material to prove the charge of conspiracy. 14. This Court considered the submissions made by both sides and perused the entire records. 15. P.W.1 is the Intelligence Officer, who speaks about the search and seizure of the contraband from the accused. P.W.6 is an another officer, who accompanied with him to the scene of occurrence. According to the evidence of P.Ws.1 and 6, after information being received by Superintendent Mohan they went to the scene of occurrence and kept surveillance and they have seen the accused Nos. 1 and 2 near Hotel Park Plaza and both the accused were identified by the informant and the accused were intercepted by them. The Superintendent Mohan explained about the Section 50 of N.D.P.S. Act to the accused. According to the evidence, the first accused himself voluntarily handed over the white colour bag to the officers, which contained four packets of heroin. Exhibit P-2- Mahazar was prepared by the officer-P.W.1, which contains all the details of search and seizure. The Superintendent Mohan explained about the Section 50 of N.D.P.S. Act to the accused. According to the evidence, the first accused himself voluntarily handed over the white colour bag to the officers, which contained four packets of heroin. Exhibit P-2- Mahazar was prepared by the officer-P.W.1, which contains all the details of search and seizure. The evidence of P.Ws.1 and 6 and Exhibit P-2 established the time and place of search and seizure and also about the recovery of the contraband heroin. Exhibit P-49 is also the report under Section 57 of N.D.P.S. Act sent by Mohan, Superintendent, Narcotics Control Bureau, who is a higher official. Now this Court is to analyse about the reasons given by the trial Court for acquitting both the accused. (i) In Exhibit P-1, the information recorded by the Superintendent, the vehicle number and about the arrival of the accused in the vehicle is not mentioned. But it will not affect the credibility of the information recorded in Exhibit P-1. (ii) According to P.Ws.1 and 2, when Section 50 of N.D.P.S. Act was explained to the accused, the accused told that they can be searched by the officers themselves and the white colour bag was voluntarily handed over by A1 to the officers/This fact is also mentioned in Exhibit P-2 mahazar. Of course, a separate acknowledgement has not been obtained from the accused Nos. 1 and 2, but as the facts were mentioned in Exhibit P-2- mahazar, in which the accused also signed, the finding of the trial Court that the compliance of Section 50 of N.D.P.S. Act is not established is not correct. (iii) As no incriminating material was found in the house of A-l, even if there is non-compliance of Section 50 of N.D.P.S. Act it does not affect the prosecution case. (iv) The samples were taken on 11.6.1997 and admittedly they were sent only on 13.6.1997, but as contended by the learned Public Prosecutor that P.W.3/Analyst had stated that seals on the samples are intact.. The delay in forwarding the samples does not affect the veracity of the evidence for search and seizure. (v) Exhibit P-13-Analyst Report has been prepared by both P.Ws.3 and also one Thiyagarajan. As P.W.3 had already been examined by .the prosecution and also cross-examined by the defence, the non-examination of Thiyagarajan, does not affect the validity of the report-Exhibit P-39. The delay in forwarding the samples does not affect the veracity of the evidence for search and seizure. (v) Exhibit P-13-Analyst Report has been prepared by both P.Ws.3 and also one Thiyagarajan. As P.W.3 had already been examined by .the prosecution and also cross-examined by the defence, the non-examination of Thiyagarajan, does not affect the validity of the report-Exhibit P-39. (vi) Even though, P.W.12, independent -witness turned hostile, the evidence of P.Ws.1 and 6 are acceptable. (vii) Exhibits P-66 and P-68 are the statements of the accused Nos. 1 and 2 respectively recorded by the officer/P.W.11 under Section 67 of N.D.P.S. Act. According to the trial Court, the statements were not attested by the independent witnesses. When the statement of a person is recorded by an officer under Section 67 of N.D.P.S. Act, the presence of another person as a witness is not necessary. 16. Though the reasons given by the trial Court for acquitting both the accused from all the charges are not acceptable, now it is to be seen whether the prosecution established the case on all the charges against both the accused. As far as the first accused is concerned, the prosecution has established that he was in possession of white bag, which contained the contraband of heroin. The evidence of P.Ws.1 and 68 established that the first accused had been in possession of heroin and their evidence is also corroborated by the statement of the first accused himself, which is marked as Exhibit P-66. As far as the second accused is concerned, according to the evidence of P.Ws.1 and 6, it is only established that the second accused was present along with the first accused at the time of seizure of contraband from the first accused. Even as per Exhibit P-2- Mahazar, it was only the A1, who admitted about the possession of the heroin with him and the second accused has not admitted anything. Further, even as per the statement-Exhibit P-68 recorded, though it is stated that he accompanied the first accused to the scene of occurrence and in the statement, it is stated that Baskaran/A1 asked him to wait near the Hotel Park Plaza and he went somewhere else. After some time, the first accused returned with the white colour bag. In the mean time, the officers came and intercepted and seized the contraband. After some time, the first accused returned with the white colour bag. In the mean time, the officers came and intercepted and seized the contraband. It is not mentioned by the second accused in the statement that the first accused went and brought the white colour bag which contained heroin. P.W.11, the Officer also admitted in the cross-examination that the second accused had not specifically stated in Exhibit P-68 that he was aware that the white colour bag contained heroin. As far as the second accused is concerned, he was not in possession of the contraband and even the statement given by him is not incriminating against him. Either Section 35 or Section 54 of N.D.P.S. Act, does not come to the rescue of the prosecution case as far as second accused is concerned. 17. In the result, the acquittal of the second accused by the trial Court is confirmed but the acquittal of the first accused is set aside, as he was in possession of 5.853 kgs of heroin. As it is established by the prosecution that A1 was in possession of 5.853 kgs of heroin he is convicted for the offence under Section 8 (c) read with 21 of N.D.P.S. Act. 18. Now the next question arises whether the accused should be summoned and should be questioned regarding the sentence to be imposed upon him. As this Court is now to impose only the minimum sentence prescribed under Section 21 of NDPS Act, 1985 prior to the amendment of 2.1.2001, the accused is not questioned under Section 248(2) Cr.P.C. The first accused is now sentenced to undergo imprisonment for a period of 10 years rigorous imprisonment and also to pay a fine of Rs. 1,00,000/- and in default, to undergo one month rigorous imprisonment. 19. This criminal appeal is allowed in respect of first respondent and dismissed in respect of second respondent. 20. The trial Court is directed to issue warrant against the first accused to secure him for the purpose of serving the sentence imposed on him. The period of detention already undergone by the first accused shall be set off against the sentence of imprisonment imposed on him by this Court.