Judgment :- 1. These two appeals arise against the judgement of the learned Principal Special Judge, Principal Special Court under EC & NDPS Act, Chennai-104, in C.C. No.347 of 2002 dated 31.12.2008. The lower court had convicted the appellants herein and passed sentence against them, as follows: Accused No. Charges Sentence [to run concurrently] A-1 8(c) r/w.21(c), 23, 27(A), 28 and 29 of NDPS Act, 1985 as amended by Act, 9/01. to undergo 11 years Rigorous Imprisonment each offence and to pay a fine of Rs.1,00,000/- for each offence, in default to undergo 6 months RI for each offence; A-2,3, 5 & 6 8(c) r/w.21(c) and 29 of NDPS Act, 1985 as amended by Act, 9/01. to undergo 11 years Rigorous Imprisonment each offence and to pay a fine of Rs.1,00,000/- for each offence, in default to undergo 6 months RI for each offence; A-4 8(c) r/w.21(c), 23 and 29 of NDPS Act, 1985 as amended by Act, 9/01. to undergo 11 years Rigorous Imprisonment each offence and to pay a fine of Rs.1,00,000/- for each offence, in default to undergo 6 months RI for each offence; 2. The prosecution case in brief is that the investigating officer PW-1 received information at 18.00 hours on 17.05.2002 through telephone that first and second accused who are Sri Lankan Nationals were engaged in drug trafficking between Chennai and Sri Lanka and that they were staying at Hotel Regal, Egmore, Chennai and Hotel Indian Palace, Moore Street, Chennai towards procuring 45 kilos of Heroin from the third accused who was from Gujarat and who also was staying at the Hotel Indian Palace and that the accused intended to transport the same to Kanyakumari Coast by using a Tata Sumo vehicle bearing registration No.TN 22 P 9597 in the early hours of 18.05.2002, towards export thereof through sea to Sri Lanka, by A-4 who also had arrived and was staying at a lodge in Chennai and that A-1, A-2 & A-4 were likely to travel with A-5 and A-6 both Srilankans to Kanyakumari, in the said Tata Sumo vehicle, with the narcotic substance which would be kept concealed in the vehicle. PW-1 reduced the same into writing, read it over to the informant over telephone and after confirming the correctness thereof, submitted the same to his Superintendent, who endorsed the same. PW-1 reduced the same into writing, read it over to the informant over telephone and after confirming the correctness thereof, submitted the same to his Superintendent, who endorsed the same. PW-1 had been informed that the Tata Sumo vehicle was likely to cross Maduranthakam area at GST Road at 5.30 a.m on 18.05.2002 and on the instructions of the Superintendent, PW-1 and other officers of NCB Chennai proceeded by their office mini bus to the said spot along with two independent witnesses at about5.00 a.m on 18.05.2002. As anticipated and after 30 minutes, the Tata Sumo Vehicle bearing registration No.TN 22 P 9597 was spotted and stopped by the officials. The driver reversed the vehicle at great speed and hit a concrete electric pillar causing damage to the rear door of the vehicle and stopped the vehicle. First, second, fourth, fifth and sixth accused were in the vehicle. The officials informed their intent to search the vehicle to the 5 persons and explained their rights under section 50(1) of the NDPS Act, (hereinafter called the Act) and upon the accused not having any objection, conducted search. On enquiry the accused identified themselves and on being asked the first accused informed of the concealment of heroin inside the body and rear door of the Tata Sumo vehicle and thereafter extricated and produced 42 packets of contraband. Use of the Field Test Kit revealed that the substance in the 42 packets was heroin. Requisite samples were taken. The samples and remaining contraband duly were sealed. Materials gathered through personal search of the accused persons were placed in sealed covers. The Tata Sumo vehicle was seized. The process of seizing, sampling, sealing and the formalities connected therewith were effected in the presence of two independent witnesses. PW-3 along with other officials had gone over to the hotel where the third accused was staying, identified themselves to the third accused, informed him of his rights under Section 50 of the Act and searched the room. No contraband was found. That which was recovered from the person of the third accused was placed in a sealed cover. The Maduranthagam police who had visited the place, informed of the report from the Electricity Board about the damage of the pillar, whereupon PW-4 and PW-6 informed them of the incident. No contraband was found. That which was recovered from the person of the third accused was placed in a sealed cover. The Maduranthagam police who had visited the place, informed of the report from the Electricity Board about the damage of the pillar, whereupon PW-4 and PW-6 informed them of the incident. Such police accompanied by the NCB officers took the driver, the fourth accused and the Tata Sumo vehicle to the police station. After enquiry the NCB Officers requested the officials of Maduranthagam Police station and brought the fourth accused for further enquiry. Pursuant to summons issued to various accused, under Section 67 of the Act, statements were recorded. The samples of the contraband had been sent for chemical analysis and the chemical analysis report confirming that the substance was heroin, was received. PW-4 had deposited the contraband with NCB godown. After recording the statements, accused were arrested and remanded to custody, by producing them before the IX Metropolitan Magistrate. 3. Before the trial Court, the prosecution examined PWs 1 to 9 and marked Exhibits P-1 to P-90 and material objects MO Nos.1 to 132. On the side of the defence DW-1 was examined and exhibits D-1 to D-8 were marked. The lower court, on appreciation of evidence, arrived at the conclusion of guilt of the accused and sentenced them as aforestated. 4. Ms. Geetha Ramaseshan, learned counsel appearing for the third accused/ appellant in Crl.A.60/2009, would contend that section 67 statement informing the culpability of the accused had been rendered by the third accused in Gujarathi, which was his mother tongue. While according to prosecution, third accused had received the contra band from the driver of the lorry bearing No.GJ 7867 at about 11.30 pm on 17.8.2004, no effort had been taken to seize such vehicle. Exh.P-71, a letter dated 2.7.2002 by PW-9 to the Superintendent, NCB calling for the search of the premises of Roshan Khan at Rajasthan would reflect the position that the prosecution was under the impression A3 Hidayat Khan went under another name Roshan Khan. This was a mistaken impression as made abundantly clear from the letter of the Zonal Director, NCB, Jodhpur Zonal Unit, Jodhpur (Exh.P-72) and in response to Exh.P-71, wherein it has been informed at paragraph 4: 4. This was a mistaken impression as made abundantly clear from the letter of the Zonal Director, NCB, Jodhpur Zonal Unit, Jodhpur (Exh.P-72) and in response to Exh.P-71, wherein it has been informed at paragraph 4: 4. Further, in your letter it has been mentioned that Hidayat Khan, who is having another name Roshan Khan has been arrested by NCB, Chennai whereas Rosham Khan R/o Akhepur is very much present in the village itself. This may please be clarified for further development at our end. The role attributed to third accused is drawn from the information received by PW-1 and recorded in Exh.P-1. PWs-1, 3, 7 & 8 had referred to third accused but not in any manner as would implicate him. Of the 9 prosecution witnesses, 5 were official witnesses. PW-5 was the scientific expert. It is only towards falsely implicating third accused that his section 67 statement was made to reflect the position that A-1 was produced before him and he had identified him. Section 67 statement of third accused had been retracted on 17.4.2003. Referring to Exh.P-66, section 57 report of PW-8, which informed that PW-8 had assisted third accused in recording his section 67 statement, learned counsel would inform that the use of the word “assisted” would go to show that the section 67 statement of third accused was not voluntary. Therefore such statement had no evidentiary value and in the absence thereof, there was nothing to implicate third accused. It is also submitted that though PW-1 was aware of third accused being at the hotel at Chennai even on the evening of 17.5.2002, no efforts had been taken to nab him till after the alleged occurrence at 5.30 a.m on the next morning at Chennai-Trichy GST Road. According to PW-1 two independent witnesses by name Pakkirisamy and Rajendran were present at the time of initial apprehension of the accused party. They had also attested the Mahazars prepared at the spot, as also the seized properties, samples and documents. The fact of A-1 having identified third accused who was produced before such accused while recording his 67 statement was not informed in the 57 statement of PW-1. They had also attested the Mahazars prepared at the spot, as also the seized properties, samples and documents. The fact of A-1 having identified third accused who was produced before such accused while recording his 67 statement was not informed in the 57 statement of PW-1. As against the evidence of PW-8 that he had accompanied PW-3 to search the hotel room of third accused and that he was a witness to what transpired there, Exh.P-23 the mahazar prepared at such hotel did not contain his signature. Two independent witnesses had attested such mahazar and they have not been examined. The mahazars have been prepared in Tamil, a language not known to the third accused and there is nothing to show that the independent witnesses knew Hindi, so as to make acceptable the endorsement of PW-3 that the contents had been explained to the accused in Hindi. 5. Informing the above discrepancies learned counsel would submit that from the reading of the depositions of PW-8 along with the relevant exhibits this Court would infer that the section 67 statement of third accused was not voluntary and that PW-8 had not been present at the time of his apprehension at the hotel room and during the search conducted by PW-3. The above aspects have not been considered by the lower court leading it to arrive at an erroneous conclusion. By way of final submission it is stated that there was no animus possidendi, so far as third accused was concerned and even if not inclined to acquit this court would consider the fact of the accused have been in custody for a period of 8 years and reduce the sentence. 6. Learned senior counsel Sri. Shanmugha Velayutham appearing for the petitioners in Crl.O.P.No.100 of 2009/ accused 1, 2, 4 & 6 submitted that the fact of the section 67 statement of all the accused being involuntary and a product of coercion could be gauged from the fact that the same were commenced on the night of 18.5.2002 and then elaborated on 19.05.2002 as all of them had allegedly claimed to be tired on the night of 18.05.2002. If such was the position as regards one accused the same may be acceptable. If such was the position as regards one accused the same may be acceptable. But that all the accused had followed the same pattern of conduct would only reflect the position that they had been led by the nose and their statements were not voluntary. It was a common well known practice of the NCB that the arrest would be effected after the recording of the statements of the accused. In the instant case, the arrest memos of the accused did not reflect the recording of their statements. Exh.P-13 mahazar recording the search and seizure effected from 5.00 a.m to 2.00 p.m on 18.05.2002 bears the signature of PW-1. Exh.D-7, the section 57 report submitted by PW-1 in another case informed that the same had been prepared at Chennai at 09.00 hours on 18.05.2002. PW-1 could not have been present at two different places at one and the same time. Therefore, it would have to be inferred that PW-1 was not present at the search and seizure, allegedly effected from 5.30 a.m on 18.5.2002 and as recorded in Exh.P-13. DW-1 the Sub Inspector of Police, Maduranthagam who had dealt with the case of accident and damage caused to the electric pillar owing to the hurried reversal of the Tata Sumo vehicle used by the accused spoke only about A-5. He neither had spoken to the presence of the other accused nor to the seizure of contra band. The seizure of contra band had been effected on 18.5.2002 and sent for chemical analysis on 30.05.2002. The chemical analysis report Exh. P-39 was dated 5.9.2002 and the test report along with Remnant samples sealed by the Chemical Examiner, Custom House, Chennai had been handed over to NCB officials on 19.09.2002. There was no explanation of where and by whom the Remnant samples were held between 5.9.2002 and 19.9.2002. Learned senior counsel would refer to Section 32-B of the Act and inform that the reasons stated by the lower court for awarding more than the minimum sentence of 10 years were not in keeping with the judgment of the Division Bench of this Court reported in Yasser Arafat v. Intelligence Officer, NCB (2009) 3 MLJ (Crl) 225. Learned senior counsel would submit that the afore-stated facts would reveal that all was not well with the prosecution case and the accused ought to be acquitted. Learned senior counsel would submit that the afore-stated facts would reveal that all was not well with the prosecution case and the accused ought to be acquitted. He would state that if this court was not inclined so to do, this court would reduce both the substantive sentence as also that imposed in default of payment of fine. 7. Sri T.K. Sampath, learned counsel appearing for the fifth accused would submit as follows : The fifth accused had been arrested by the Maduranthagam police. DW-1 who informed of having arrested him on account of the accident involving the Tata Sumo Vehicle had spoken to the presence of several accused and of the NCB officials and of having released them on bail to the NCB officials. He had categorically stated that no contraband was seized from the vehicle and of the NCB officials taking return of the vehicle at 3.30 pm., after the same was produced before the Motor vehicle inspector. Thus, as the vehicle was in custody of local police and no contraband was seized there from, the prosecution version of the seizure was false. Exh.P-13 Mahazar, which spoke of all that transpired between the prosecution party lying in wait in the early hours of 18.05.2002 and the seizure of the contraband i.e. between 5.30 am and 2.00 pm, had been drawn up even before the accident involving the vehicle of the accused since it exhibited the position that the same was prepared from 5.00 a.m onwards. Though the prosecution has cross examined DW-1, the prosecution case had not been suggested to him. Mere knowledge that the other accused held narcotic substance would not amount to commission of offence. Unless A-5 shared the intention of the other accused, he could not be held to have participated in a criminal conspiracy. He was only the driver of the vehicle and the owner thereof had not been examined. Exh.P-13 had been prepared from 5.00 a.m onwards. According to PW-1 the vehicle had been stopped at 5.30 a.m. Therefore at 5.00 a.m no offence could have been committed by A-5. Exh. D7 was the report of PW-1 u/s.57 of NDPS Act in some other case, wherein PW-1 had recorded the statement of an accused and assisted the other officials in completing the remand formalities and lodging such accused in Central Prison, Chennai. Exh. D7 was the report of PW-1 u/s.57 of NDPS Act in some other case, wherein PW-1 had recorded the statement of an accused and assisted the other officials in completing the remand formalities and lodging such accused in Central Prison, Chennai. Exh.D-7 report had been drawn up by PW-1 at 9.00 hours on 18.05.2002 and in circumstance where PW-1 had not spoken to his having left the scene of occurrence in this case in between, it would not have been possible for him to have been at the scene of occurrence in this case at 5.30 a.m. Hence, his presence as recorded in P-13 necessarily was false. This is why, in Exh.P-13 reads as 5.00 a.m onwards. The explanation of PW-1 in the course of cross examination and 1= years after the occurrence that the time had by mistake been mentioned in Exh.D-7 as 9.00 hours instead of 19.00 hrs. ought not to be accepted. Till the release of A5 on bail in the accident case by the Maduranthagam police, he had been in their custody. Exh.D-8 of the charge sheet in the accident case. The first information report and the charge sheet would show that only A-5 was an accused in such case. Therefore, there had been no necessity to arrest the other accused and while DW-1 had spoken to plurality of the accused there was nothing to show who they were. The above circumstances laid bare the falsity of the prosecution case and hence the accused ought to be acquitted. It is also submitted that one of the retracted confessions of A-5 had not been sent to court. Learned counsel would submit that this was a case where A-5 was in police custody having been arrested in connection with the accident involving the vehicle used by the accused and as such his statement would suffer the bar made applicable u/s.26 of the Evidence Act. Learned counsel would rely on the submission of PW-4 that A-5 had been arrested at 11.30 p.m on 19.05.2002 and submitted that there has been no reason that was forthcoming as to why such accused had not been arrested immediately on completion of his section 67 statement. Learned counsel would rely on the submission of PW-4 that A-5 had been arrested at 11.30 p.m on 19.05.2002 and submitted that there has been no reason that was forthcoming as to why such accused had not been arrested immediately on completion of his section 67 statement. He would state that the section 67 statements of such witness did not elaborately inform the details of the occurrence, apprehension of accused and seizure of narcotic substance and hence such witness had not satisfied himself regarding the truth or otherwise of what was stated in the section 67 statement of A-5. He would make much of the fact that PW-4 had not stated when and where summons had been issued to A-5. 8. In response to the above submissions made on behalf of the accused, learned Special Public Prosecutor would state that the involvement of all the accused stood borne out from the fact that the very information received and recorded in Exh.P-1 informed all their names. PW-1 had submitted Exh.P-1 to the superior officer on the very same day i.e. 17.05.2002 and such superior officer, the Superintendent NCB, Chennai had on such date endorsed: “Seen. Take action as proposed”. The Mahazar, Exh.P-13 recording what had transpired necessarily would be recorded at the end. PWs. 2, 3, 4, 6 & 7 had witnessed the search and had spoken thereto, though they had not signed the Mahazar Exh.P-13. It was quite natural that the accused persons who had been apprehended in the early hours on 18.05.2002 had all claimed to be tired late in the day and it was incumbent upon the investigating officials to allow them to rest and hence nothing sinister could be read into the prosecution case from such position. The accused had made voluntary statements and the retractions were an after thought. He would explain that in the statement of retraction, Exh.D-5 dated 28.05.2008, A-5 had disowned the earlier retraction statement and as such the same had not been sent to court. third accused had been subsequently arrested and as reflected in Exh.P-15 the section 67 statement of the first accused he had been brought and identified by A-1 and had also signed Exh. P-15. Similarly, A-2 had also been identified by third accused in his Section 67 statement, Exh.P-57. So too, A-5 in his Section 67 statement identified A-1, Exh.P-29. third accused had been subsequently arrested and as reflected in Exh.P-15 the section 67 statement of the first accused he had been brought and identified by A-1 and had also signed Exh. P-15. Similarly, A-2 had also been identified by third accused in his Section 67 statement, Exh.P-57. So too, A-5 in his Section 67 statement identified A-1, Exh.P-29. Regarding the contraband seized in the case, PW-4 had spoken to the production thereof as also the accused before the IX Metropolitan Magistrate at around 8.00 a.m on 20.05.2002, of the direction of such Metropolitan Magistrate and of the production of the accused and the contraband and records before such Magistrate during working hours as required by him, for remand of the accused. In keeping with the direction of the Magistrate, PW-4 had deposited the contra band goods with the custom house on 30.05.2002. The forwarding memo was prepared by him under Exh.P-33 and the contraband was submitted before the Deputy Director who had thereafter, handed over to him the godown receipt Exh.P-34. Pursuant to Exh. P-35, dated 24.05.2002 the requisition for chemical examination, learned Spl. Judge had ordered the same under Exh. P-36 on the same day. PW-4 had informed that the chemical analyst had acknowledged the receipt of the samples on Exh.P-36 itself. Though the chemical examiner’s report Exh.P-39 was dated 5.9.2002, at the end thereof it had been clearly stated that the samples duly sealed had been handed over to an official of NCB on 19.9.2002. Thus, not only had the contraband been duly deposited in the godown but the handling of the samples also stood properly explained. There was no prescribed format for recording section 57 statement. Use of the word assisted in relation to recording of section 67 statement of third accused only would have to be read as a reference to recording thereof and too much could not be made of it, particularly placing a reading therefrom that the statement was not voluntary. A reading of Exh.P-23 mahazar, recorded at the hotel room of third accused would show that the same had been explained to him in Hindi. From DW-1’s evidence the attempt of the accused to escape stood made out. Exh.P-30, the mahazar recorded at the spot had been completed at 2.00 p.m on 18.5.2002 and thereafter summons had been issued then and there, as could be seen from the evidence of PW-1. From DW-1’s evidence the attempt of the accused to escape stood made out. Exh.P-30, the mahazar recorded at the spot had been completed at 2.00 p.m on 18.5.2002 and thereafter summons had been issued then and there, as could be seen from the evidence of PW-1. From the fact that DW-1 spoke to the registration of the FIR in the accident involving the vehicle of the accused at 2.05 p.m, it could be seen that such case, came to be registered only after the entire proceedings relating to the apprehension of the accused and seizure of the contraband had been completed. PW-1 had duly clarified that in the report under Section 57 in Exh.D-7, the time wrongly had been noted as 09.00 hours instead of 19.00 hrs. In the present case the entire mahazar proceedings had been completed and all the accused were at the NCB office at 5.00 pm. Though a submission was made on behalf of the accused that there was delay in forwarding the samples for chemical examination, the chemical analyst report, Exh.P-39, informed that all the seals were intact and tallied with facsimile given in the forwarding letter. The prosecution case rested not merely on the confessions of the accused. In keeping with the information received the accused have been apprehended and seizure of contraband effected. All the accused had conscious knowledge of possession of contraband. The information received and the statement of the investigating officers had to be read along with the evidence of the prosecution witnesses and once the same reflected trust worthiness there is no need to examine any independent witnesses. So far as third accused was concerned, he had been named in the information received and the other accused had been found in possession in keeping therewith. He had been produced while recording the statement of A-1 and identified by such accused. Learned Special Public Prosecutor would refer to the section 67 statement of the fifth accused which reflected the position that the same had been recorded voluntarily without any coercion. In the above circumstances, it is submitted that the prosecution case suffered no lacuna and hence the finding of conviction and sentence imposed by the trial court ought to be confirmed. 9. Decisions are relied upon by the counsel, which, to the extent necessary, are discussed herein below: Ms. In the above circumstances, it is submitted that the prosecution case suffered no lacuna and hence the finding of conviction and sentence imposed by the trial court ought to be confirmed. 9. Decisions are relied upon by the counsel, which, to the extent necessary, are discussed herein below: Ms. Geetha Ramaseshan referred to the decision of the constitution bench in State of Punjab v. Baldev Singh etc., 1999 SC 2378, towards impressing the importance of strict compliance of mandatory provisions and particularly that the court could not over look the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subjected to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in the statute are scrupulously followed. Reliance was placed on the decision of this Court in Crl.A. No. 61 and 192 of 2009 dated 18.6.2010 wherein, it has been held as follows: 18. Though the statements given by the mahazar witnesses Ex.P.19 and P.71, before the empowered officers would become admissible under Section 53 A of the NDPS Act only if it fulfills any one of the following circumstances; i. The person who made the statement must be dead. ii. Or cannot be found iii. or he is incapable of giving evidence iv. or he is kept out of the way by the adverse party. v. Or whose presence cannot be obtained without an amount of delay or expense. Therefore, the trial court ought to have allowed the prosecution to mark Exs.P.19 and P.71 only on deciding the circumstance under which it could be marked. It appears that an objection has been raised by the defence at the time of marking these documents. This Court does not find any evidence being let in by the prosecution with regard to the non availability of the two mahazar witnesses. The trial court also had not come to any conclusion before allowing Exs.P19 and 71 that those two witnesses could not be obtained. In the circumstances, iit is to be held that the statements Exs.P.19 and P.71 are inadmissible. Even if they are made admissible, they are not substantive evidence. The trial court also had not come to any conclusion before allowing Exs.P19 and 71 that those two witnesses could not be obtained. In the circumstances, iit is to be held that the statements Exs.P.19 and P.71 are inadmissible. Even if they are made admissible, they are not substantive evidence. Reliance on the said decision is towards informing that the prosecution exhibits 81, 85 and 89 deserve no consideration given the fact that the persons who had made the statements, were not before the court. They are the statement of the owner of the Tata Sumo Vehicle TN 22 P 9597 ( Exh.P-81), statement of one N.T. Thiagarajan, witness to search of the hotel records (Exh.P-85) and statement of Rajendran, witness at the scene of occurrence (Exh.P-89). Decision in Francis Stanly @ Stalin v. Intelligence Officer, NCB, Thiruvananthapuram, 2006 (13) SCC 210 was relied upon to impress the similarity of the facts therein viz., that like third accused in the present case the appellant therein was not found in possession of narcotics but was alleged to have handed over the same to the other accused and the only evidence against him was the retracted statement of first accused and the appellants own retraction confession. Considering the fact that though a confession made before an officer under NDPS Act would not be hit by Section 25 of the Evidence Act, it must be subjected to closer scrutiny then a confession made to private citizens or officials who do not have powers of investigation under the Act. On the reasoning that as a rule of prudence some corroboration ought to be sought for before placing reliance on the evidence of accomplices, the Apex Court had thought it fit to acquit the appellant therein. The decision in Raju Premji v. Customs NER Shillong Unit with Arun Kanungo v. D. Pakyntein 2009 (4) Supreme 723 , relied upon was a case wherein on the facts thereof the Apex court had concluded that the section 67 statement of the accused was not voluntary. The decision reported in Rekhaparameswari v. Asst. Collector of Customs, Prosecution Cell, (2009) 2 MLJ (Crl.) 756, is more on the arriving at a finding on whether the contraband seized was of small, commercial or of intermediate quantity, so as to attract the imposition of minimum punishment as stipulated in Section 8 of the Act. 10. Mr. The decision reported in Rekhaparameswari v. Asst. Collector of Customs, Prosecution Cell, (2009) 2 MLJ (Crl.) 756, is more on the arriving at a finding on whether the contraband seized was of small, commercial or of intermediate quantity, so as to attract the imposition of minimum punishment as stipulated in Section 8 of the Act. 10. Mr. Shanmugha Velayutham, learned senior counsel would rely upon the decision in Union of India v. Bal Mukund & Ors., 2009 (2) Crimes 171 (SC), a case wherein the accused had retracted his confession statement immediately after the expiry of police custody. The Apex Court found that such accused could have been convicted only if there was independent corroboration of the confession and that the confessional statement of the co-accused could not form the basis of his conviction. Heavy reliance was placed on paragraph 22, of such judgment. Such and the previous paragraph may be reproduced: 21. Mr.B.B. Singh would urge that the statements made by Respondents 1 and 2 purported to be in terms of Section 67 of the Act were admissible against the co-accused. Strong reliance in this behalf has been placed on Naresh J. Sukhawani v. Union of India (1995 Supp (4) SCC 663, para 4) wherein it was held: “4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr Dudani’s statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine.” 22. No legal principle has been laid down therein. No reason has been assigned in support of the conclusions arrived at. Therefore, we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine.” 22. No legal principle has been laid down therein. No reason has been assigned in support of the conclusions arrived at. If a statement made by an accused while responding to a summons issued to him for obtaining information can be applied against a co-accused, Section 30 of the Evidence Act being not applicable, we have not been shown as to under which other provision thereof, such a confession would be admissible for making the statement of a co-accused relevant against another co-accused. If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein. If such a legal principle can be culled out, the logical corollary thereof would be that the co-accused would be entitled to cross-examine the accused, as such a statement made by him would be prejudicial to his interest. Judgment of the High Court of Delhi in the case of Jatinder Dev @ Bhola v. State Crl.M.B. No.5985/2007 and Crl.A.No.178/2004 dt. 05.09.2007 was relied upon to show that even in cases where huge quantities of narcotics were involved, the Supreme Court had decided to impose only the minimum sentence. The decision of the Division Bench of this Court reported in Yasser Arafat v. Intelligence Officer, NCB (2009) 3 MLJ (Crl) 225, has been relied upon to inform the inapplicability of Section 32-B of the Act and that only the minimum sentence in keeping with Section 8 of the Act ought to have been awarded. 11. Mr. T.K. Sampath, learned counsel appearing for the fifth accused would rely upon the judgment of the Apex Court in Crl.A. No.1647 of 2007 and Crl.A.No.956 of 2009 (Raju Premji v. Customs NER Shillong Unit and Arun Kanungo v. D.Pakyntein), wherein it had been observed that, “24. 11. Mr. T.K. Sampath, learned counsel appearing for the fifth accused would rely upon the judgment of the Apex Court in Crl.A. No.1647 of 2007 and Crl.A.No.956 of 2009 (Raju Premji v. Customs NER Shillong Unit and Arun Kanungo v. D.Pakyntein), wherein it had been observed that, “24. In any event if they were in custody of the police officers as also the customs officers, although they were not accused in strict sense of the term, any confession made by them would not be admissible in terms of Section 26 of the Evidence Act, 1872. And again, 26. The confession was retracted by accused No.4 only after a few days. The learned Special Judge has taken into consideration the fact of such retraction. Taking into consideration the facts and circumstances of the case, we are of the firm opinion that confession cannot be said to have been made by the appellants voluntarily. He would rely on the judgment of this court in Crl.A.No.707/2006 dated 19.3.2010, wherein several decisions of the Apex Court have been touched upon to inform the considerations that would come into play, on deciding whether a retracted confession ought to be relied upon or not; more particularly the need for corroboration, the need for closure scrutiny then a confession made to private citizens or officials who do not have power under investigation and consideration of the fact of an accused having been produced from police custody. The decision of Union of India v. Bal Mukund & Ors., is relied upon and for the same purpose as done by the learned senior counsel Sri. Shanmugha Velayutham. Learned counsel would impress that the search and seizure in the present case had been effected at 5.30 a.m i.e., before sun rise and hence the designated officer was under a legal obligation to comply with the mandate of proviso to sub section-1 of section 42 of the Act, which required him to record the grounds of his belief to make a search in terms of the powers conferred upon him and send a copy thereof to his immediate superior. He placed reliance in this regard on the decision of the Apex Court in State of Orissa v. Laxman Jena, 2002 (5) Supreme 545 . He placed reliance in this regard on the decision of the Apex Court in State of Orissa v. Laxman Jena, 2002 (5) Supreme 545 . Impressing that even if it be taken that the fifth accused who, merely was a driver, had knowledge of the transport of contraband by the other accused, no conclusion of abetment and /or conspiracy within the meaning of Section 29 of the Act could be arrived at, merely because the accused are found together, decision in Amarsingh Ramjibhai Barol v. State of Gujarat, 2005 (6) Supreme 323 , was relied upon. The decisions of the Supreme Court in Shanti Lal v. State of M.P., 2007 Drugs Cases (Narcotics) 403 and the Bombay High Court in Md. Harunfakir Mohmed v. State of Maharashtra, 2007 Drugs Cases (Narcotics) 488 were relied upon to impress the need for reduction of the default sentence. 12. Learned Special Public Prosecutor on his part, had relied on the decisions reported in Jeyapal v. State, 2000-2 LW (Crl.) 891, to inform that the Act does not prescribe any particular form for preparation and forwarding of the Section 57 report. He would rely on the decision of the Apex Court in State of Punjab v. Lakhwinder Singh & anr., (2010) 4 SCC 402 , to inform that the Apex Court had set aside a finding of acquittal which had been arrived upon on taking note of minor discrepancies on the reasoning that the same did not affect the substratum of the prosecution case and offences alleged against the accused. Decision in Ravindran @ John v. Superintendent of Customs, (2007) 6 SCC 410 , was relied upon to inform the inapplicability of Section 42 where the arrest and seizure was made at a public place. Decision in Ajmer Singh v. State of Haryana, (2010) 3 SCC 746 , was relied upon to inform that the testimony of official witnesses when found believable, could form the basis of conviction, even in the absence of corroboration through independent evidence. The decision in Kanhaiyalal v. Union of India, (2008) 4 SCC 668 , was touched upon to impress that incriminatory statements made by persons who had been called to provide information were not the same, as statements made under Section 161 CrPC and that the same could form the basis of conviction. Paragraph 44 & 45 of the said judgment may readily be reproduced. 44. Paragraph 44 & 45 of the said judgment may readily be reproduced. 44. In addition to the above, in Raj Kumar Karwal v. Union of India this Court held that officers of the Department of Revenue Intelligence who have been vested with powers of an officer in charge of a police station under Section 53 of the NDPS Act, 1985, are not ?police officers? within the meaning of Section 25 of the Evidence Act. Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitted which can persuade us to take a different view. 45. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case with which we agree, that an officer 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 NDPS 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 NDPS Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act. 13. To meet the contention of Sri.T.K.Sampath, that the fifth accused was merely a driver who could not be said to be in conscious possession of contraband and that of Ms. Geetha Ramaseshan that the third accused had no animus possidendi, the decision in Madan Lal & anr. v. State of H.P., (2003) 7 SCC 465 is relied on. 21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted. 22. The expression “possession” is a polymorphous term which assumes different colours in different contexts. 21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted. 22. The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja4 to work out a completely logical and precise definition of “possession” uniformally applicable to all situations in the context of all statutes. 23. The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. 24. As noted in Gunwantlal v. State of M.P.5 possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control. 25. The word “possession” means the legal right to possession (see Heath v. Drown). In an interesting case it was observed that where a person keeps his firearm in his mother?s flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness.) 26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. 27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act. 28. In fact, the evidence clearly establishes that they knew about the transportation of charas, and each had a role in the transportation and possession with conscious knowledge of what they were doing. The accused-appellant Manjit Singh does not stand on a different footing merely because he was the driver of the vehicle. 28. In fact, the evidence clearly establishes that they knew about the transportation of charas, and each had a role in the transportation and possession with conscious knowledge of what they were doing. The accused-appellant Manjit Singh does not stand on a different footing merely because he was the driver of the vehicle. The logic applicable to other accused-appellants also applies to Manjit Singh. 29. Therefore, the presumption available by application of logic flowing from Sections 35 and 54 of the Act clearly applies to the facts of the present case. The judgments of the trial court and the High Court suffer from no infirmity to warrant interference. The appeals deserve dismissal, which we direct. 14. Finding: Putting up a defence witness often is a dangerous proposition. In the instant case, DW1 has served well the prosecution case. The information received in Exh.P-1 was that the accused would be carrying contraband in a car in the early hours of 18.05.2002. The prosecution party lies in wait, the car arrives, the accused tries to escape by reversing the vehicle, which comes to a stop after hitting an electric pillar. This is the prosecution version and the same is confirmed through DW-1 informing of registration of FIR relating to damage to electric pillar on the complaint of the Junior Engineer,TNEB. This position affirms the veracity of Exh.P-1 and the consequential apprehension/ seizure effected on 18.05.2002. DW-1 informs of registration of the FIR in the case relating to accident by the vehicle of the accused at 02.00 p.m i.e., after the completion of the seizure proceedings. Again, DW-1 informs of the NCB officials having taken A-5 along with them at about 3.30 pm on 18.05.2002. The section 67 statement of A-5 much later was recorded at the NCB office. Thus, why DW-1 has nothing to say about the seizure stands explained. Again, the contention of the statement of A-5 suffering the bar under section 26 of the Evidence Act is undone. Exh.P-1 confirms the involvement of the appellants herein by name and in keeping therewith A-1, 2, 4, 5 and 6 have been apprehended at the scene of occurrence while third accused has been apprehended at the very hotel room where he was informed to be in. 15. Exh.P-1 confirms the involvement of the appellants herein by name and in keeping therewith A-1, 2, 4, 5 and 6 have been apprehended at the scene of occurrence while third accused has been apprehended at the very hotel room where he was informed to be in. 15. As all the counsel for the accused would rely upon the case of Union of India v. Bal Mukund & Ors., we first would deal with the same. The decision in Union of India v. Bal Mukund & Ors., 2009 (2) Crimes 171 (SC), Naresh J. Sukhawani v. Union of India was a case arising under the Customs Act and the matter in issue was in relation to the collection of material under section 108 of the Customs Act i.e. proceedings to which the rules of evidence strictly were not applicable. In any event there is a marked difference between proceedings under the Customs Act and those under the NDPS act. There is a provision in section 53 of the NDPS Act, for conferring of power of officers in-charge of the police station upon officials acting under the NDPS Act. The Customs Act has no such provision. Such powers have been conferred under notification. Despite exercising such power the statements recorded by the officials acting under the Act would not be hit by Section 25 of the Act and would be admissible in evidence as informed in the decision of the Apex Court in Kanhaiyalal v. Union of India, (2008) 4 SCC 668 . Even the decision in Union of India v. Bal Mukund & Ors., visits a position where section 30 of the Evidence Act does not apply. In the instant case, all the appellants before us had been tried jointly calling for the application of Section 30 of the Evidence Act which reads as follows : 30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.’ When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. [Explanation.- “Offence” as used in this section, includes the abetment of, or attempt to commit, the offence.] Illustrations (a) A and B are jointly tried for the murder of C. It is proved that A said “B and I murdered C”. The Court may consider the effect of this confession as against B. (b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said “A and I murdered C”. This statement may not be taken into consideration by the Court against A, as B is not being jointly tried. This Court finds the reliance on the decision in Union of India v. Bal Mukund & Ors., misplaced. We find that the statements of all the appellants before us is recorded under Section 67 of the Act. In the circumstances of the case, there is no reason to suspect that the same were not voluntary. The retraction thereof only is seen to be an after thought. 16. The submissions made by the counsel for third accused that the statement of prosecution witnesses Exhs.81, 85 and 89 cannot be considered since the persons who made such statements had not been examined, is to be accepted. However, the test would be, what effect the exclusion of such statements would have upon the prosecution case. We find that such exclusion would not have any ill effect on the prosecution case. The above apart, the other issues raised merely are peripheral in nature. The failure to seize the lorry from which third accused off-loaded the contraband neither affects the prosecution case nor improves the defence one. Similar is the position even if it be taken that the prosecution was under a mistaken impression that the third accused Hidayat Khan went under an other name Roshan Khan. The use of the word assisted in Exh.P-66, section 57 report of PW-8 cannot be strained to make out the defence case of coercion in recording the section 67 statement of third accused. The reason behind, not apprehending third accused before the occurrence is obvious. Doing so, would have led the other accused to abort the attempt to transport contraband. This court has had Exh.P-63, the section 67 statement of third accused read over by a person having knowledge of Hindi towards satisfying itself that the same indeed stands recorded in Hindi. The reason behind, not apprehending third accused before the occurrence is obvious. Doing so, would have led the other accused to abort the attempt to transport contraband. This court has had Exh.P-63, the section 67 statement of third accused read over by a person having knowledge of Hindi towards satisfying itself that the same indeed stands recorded in Hindi. As rightly contended by the learned Special Public Prosecutor, the non-examination of independent witnesses does not affect the prosecution case. The fact of the section 57 report of PW-1 not informing the identification of third accused by A-1 while recording section 67 statement or that of Exh.P-23 Mahazar not being signed by PW-8 who allegedly had accompanied PW-3 to search the hotel room of third accused can at best be seen to be minor discrepancies. The submission of third accused having no animus possidendi squarely is met by the learned Special Public Prosecutor and through reliance on Madan Lal & anr. v. State of H.P., (2003) 7 SCC 465. Such reliance takes care of the submission of the counsel for the fifth accused that such accused had no knowledge of the contraband. The entry in Exh.P-13, Mahazar reading “from 5.00 a.m onwards” can only be read as informing that the prosecution party was lying in wait at the particular spot from such time. In the circumstances of the case, where the information recorded as Exh.P-1 has been found to be well substantiated, even apart from the assistance provided in this regard by the defence witness, the explanation offered by PW-1 regarding Exh.D-7, the report of PW-1 u/s.57 of NDPS Act in some other case, that instead of 19.00 hours, 9.00 hours was noted and that the same was a mistake is to be accepted. In circumstance where the accused have been apprehended in the early hours of 18.05.2002, it is quite natural that they, one after the other, would have claimed to be tired, resulting in the continuation of their 67 statements, the next day. 17. In the facts of the present case the appellants cannot escape sentence. The offences alleged and proved against them call for a minimum sentence of 10 years. The question would be whether the actions of the accused call for a punishment larger than the minimum as provided for in Section 32B of the Act. 17. In the facts of the present case the appellants cannot escape sentence. The offences alleged and proved against them call for a minimum sentence of 10 years. The question would be whether the actions of the accused call for a punishment larger than the minimum as provided for in Section 32B of the Act. In Yasser Arafat v. Intelligence Officer, NCB (2009) 3 MLJ (Crl) 225, this Court has, against the judgement of the lower court imposing a punishment of 14 years reduced the sentence to a minimum of 10 years on the reasoning that the trial court had not informed the factors taken into account in imposing a larger sentence. Such is not the case here. In the present case, the trial court has taken into account the large volume of contraband involved viz. 44 kgs. and imposed a sentence of 11 years Rigorous Imprisonment and a fine of Rs.1,00,000/- for each offence, in default to undergo 6 months RI for each offence. Though the finding of the lower court cannot be found fault with, this Court, entitled as it is to appreciate the facts, is inclined to reduce the sentence to the minimum period of 10 years rigorous imprisonment for each offence. Considering the plea made on behalf of the accused that they are unable to pay the fine, this court is inclined to reduce the default sentence to a period of 3 months. Accordingly, this court confirms the finding of conviction of the trial court: The appellants shall undergo a sentence of 10 years Rigorous Imprisonment and pay a fine of Rs.1,00,000/- in respect of each of the offences charged against them. The sentences shall run concurrently. The total default sentence, in the event of the appellants not paying the fine imposed upon them, shall be a period of three months rigorous imprisonment.