JUDGMENT (1) SINCE the issues involved in these appeals are one and the same, they are taken up together and disposed of by this common judgment. (2) FOLLOWING is the factual backdrop of prosecution case in brief : P. W. 1, Inspector of Customs, P. W. 2, Superintendent of Customs and their party belonging to Rameswaram Customs Office, on a tip-off, proceeded to the house of the first accused Muthunachi in Vilayattu Mariamman Koil Street, Rameswaram, on 18-12-2003 at 10.00 a.m. along with two independent witnesses P. Ws. 3 and 4. When they entered into the house, 1st accused Muthunachi and 2nd accused were present. They asked 1st accused whether a person belonging to Srilanka had been staying in her house for the past few days and they had to enquire about it. 1st accused promised to extend her full co-operation. On enquiry, 2nd accused told that his father is one Gonsal alias Stephen, that he came to Dhanushkodi Kambipadu Seashore from Srilanka by a country boat belonging to one Kandasamy and with the help of the said Kandasamy, he identified the house of 1st accused and was staying there and that one Gunasekaran residing in Chettiar Street, Ceylon approached him and asked him to Smuggle Narcotic Drug from India and handover to him. While 1st accused was enquired, she told that at about 4.00 a.m. on the same day, one Dyliston (4th accused) and Ceylon Sekar (3rd accused) of Rameswaram came to her house and handed over a parcel containing Narcotic substance for giving to 2nd accused. She voluntarily produced a school bag from the backside of television in her house and took out a polythene parcel fully packed by adhesive tape and told the officials that it was the parcel which was entrusted to her by Ceylon Sek In the presence of both the accused P. W. 1 and others opened the parcel and found another polythene parcel inside, containing a brown colour powder. They put a sample of the said powder in Narcotic Drug test kit for examination, which gave positive answer for a narcotic substance called "morphine". Representative Homogenous samples were taken as per following procedure : 3(a) Entire drug weighed along with polythene bag at 1.025 kilogram. They put a sample of the said powder in Narcotic Drug test kit for examination, which gave positive answer for a narcotic substance called "morphine". Representative Homogenous samples were taken as per following procedure : 3(a) Entire drug weighed along with polythene bag at 1.025 kilogram. As per procedure, two samples of 5 grams each was collected from the said brown colour pocket, put them in separate parcels in a brown colour cover and it was then pasted with another cover and was given numbers as B1 S1 and B1 S2 respectively. In both the covers left thumb impression of 1st accused and, signatures of the 2nd accused were obtained. On the two sample pockets, the office seal showing 'Customs House, Rameswaram No. 12 was put and 5 seals were put in each of the property. On the cover, the signatures of the 2nd accused and both the witnesses were obtained. Left thumb impression of 1st accused was obtained in both the parcels. Afterwards both the parcels were closed by adhesive tape and put in 2 or 3 polythene covers and it was again put in white cloth which was then stitched. Over that bag they again put the Customs House No. 12 seal in 7 places. Then 2nd accused and witnesses signed. L. T. I. of 1st accused was also obtained. The two polythene pockets which were pasted by the adhesive tape at the beginning of the search was kept inside the school bag and the said bag was put in a white cloth which was stitched, over which the officials put their office seal in 7 places and they gave number as P2 in which the witnesses and 2nd accused signed and 1st accused put her L. T. I. (3) THE value of the seized contraband was Rs. 1,00,000/-. A Mahazar was also prepared in Ex. P1 in whiich signatures of witnesses and 2nd accused and L. T. I. of 1 st accused were obtained. By means of Ex. P.2 deposit memo, the contraband was deposited with Customs Godown. (4) EX. Ps. 3 and 4 are the confession statements given by both the accused in the presence of witnesses. Thereafter both the accused were arrested and EXs. P5 and P6 Arrest Memos were prepared for both the accused respectively in which the L. T. I. of 1st accused and signature of 2nd accused were obtained. (4) EX. Ps. 3 and 4 are the confession statements given by both the accused in the presence of witnesses. Thereafter both the accused were arrested and EXs. P5 and P6 Arrest Memos were prepared for both the accused respectively in which the L. T. I. of 1st accused and signature of 2nd accused were obtained. A detailed report EX. P. 7 was prepared under Section 57 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act') by P. W. 2. EXs. P. 5 and P. 8 are the arrest memoes prepared by the Superintendent P. W. 2, by means of which they were made known about their arrest, who have also made necessary acknowledgments on them respectively. Both of the accused were sent for judicial custody. Remand Report is EX. P. 9. On 20-12-2003, one Panchavarnam appeared before the Customs office and told that he came to know that narcotic substances was recovered from his wife Muthunachi, 1st accused and he was willing to give statement. The statement was reduced to writing in Ex. P. 10. P. W. 2 also examined Kandasamy and his statement was recorded by the Inspector of Police, P. W. 6 on 18-12-2003. P. W. 6 along with officials on 19-12-2003 made a search in the house of 3rd accused Sekar @ Ceylon Sekar. He was not present in his house. But his mother and wife was present. With their permission, they searched the house but they did not find any objectionable objects nor incriminating materials. Ex. P. 18 Mahazar was prepared for the search. (5) P. W. 7 is Judicial Magistrate, Pudukottai, who took up pre-trial under Section 52(a) of the Act. Her proceedings and report are Exs. P. 22 and 23 respectively. The properties were photographed. And a sample was also taken from the property in her presence which is M. O. 2. Exs. P. 24 and 25 series are photographs and negatives. She also certified in her pcoceedings the correctness of list of particulars as to the pocket containing seized morphine sample drawn from it and the balance weight of the pocket after drawing of sample was taken in her presence. (6) P. W. 9 gave a requisition Ex. P. 19 on 5-1-2004 to the Court to send the sample for chemical analysis. By means of Ex. (6) P. W. 9 gave a requisition Ex. P. 19 on 5-1-2004 to the Court to send the sample for chemical analysis. By means of Ex. P. 20, the Special Court for E. C. Act and NDPS Act, Pudukottai, sent the same for examination to Chennai Customs House. P. W. 8 is Assistant Chemical Examiner in Revenue Control Laboratory, Customs House, Chennai, examined the sample and found the percentage of morphine contained in the sample as 16.53%. Remaining sample is M. O. 3. His Report is Ex. P. 26. P. W. 9, Investigating Officer sent a wireless message Ex. P. 28 regarding the seizure of contraband on 18-12-2003 itself under Section 42 of the Act. His superior officer had seen it and returned the same with his letter Ex. P. 29 dated 24-12-2003. The 3rd and 4th accused were absconding. On 11-8-2004, 3rd accused had been arrested in another case at Arakonam and was detained in Central Prison, Salem and immediately after getting information, P. W. 9 proceeded to Salem Prison and recorded statement from 3rd accused in the jail on 1-10-2004 in the presence of jailer which is Ex. P. 32. He has stated in the said statement that on learning that he was wanted by the Customs officials with regard to the seizure of narcotic substance in the house of the 1st accused, he was moving to various places and was staying in different names, that he was enquired as to why he did not appear before the authority inspite of repeated summons, that he was also quizzed why he did not appear even after the notice was published for confiscation of his properties under NDPS Act, that he replied that he did not know anything about them, that if he contacted his family members, the authorities would ascertain his whereabouts and that since in the narcotic drug cases, Courts do not grant bail and hence he decided to surrender before the Court after filing charge-sheet. (7) SINCE, the 4th accused was absconding, the case against him was split up and given number as C. C. No. 3 of 2005. (8) ALL the 3 accused were questioned under Section 313 Cr. P. C, with regard to the incriminating materials available against them in the prosecution case. They denied complicity to the offences. They have examined D. W. 1, 4th accused and marked one document Ex. (8) ALL the 3 accused were questioned under Section 313 Cr. P. C, with regard to the incriminating materials available against them in the prosecution case. They denied complicity to the offences. They have examined D. W. 1, 4th accused and marked one document Ex. D1, statement of 4th accused. He says that he does not know all the 3 accused, that he has no connection with them and that he gave a statement in the presence of the jailer which is Ex. D1. The Trial Court, after analyzing the evidence on record, found guilty of the accused and convicted them as follows : (See table below) (9) POINTS for consideration : 1. Whether the prosecution has established the guilt of the accused beyond all reasonable doubts? 2. Whether the conviction and sentences recorded by the trial Court are sustainable. (10) THE first limb of contention of the learned counsel for the accused is that the information which the customs officials received before proceeding to the house of first accused for conducting the search was not reduced into writing and the same was not sent to the immediate superior officer within 72 hours, hence, it is violation under Section 42(2) of the Act, which vitiates the entire proceedings and the said search and seizure are (Contd. on col. 2) doubtful. In support of his contention he relied upon a decision of Supreme Court in (2009 (2) Crimes 171 SC : 2009 (12) SCC 161 : (AIR 2009 SC (Supp) 1811 : 2009 Cri LJ 2407) (Union of India v. Bal Mukund and Ors.), wherein it is observed as follows : 18. Section 42 of the Act mandates compliance with the requirements contained therein viz. if the officer has reason to believe from personal knowledge or information given by any person which should be taken down in writing that any drug or psychotropic substance or controlled substance in respect of which an offence punishable under the Act has been committed, he is empowered to exercise his power enumerated in clauses (a) and (b) of Section 42(1) of the Act between sunrise and sunset. Subject to just exceptions, thus, taking down the information in writing is, therefore, very necessary to be complied with. Subject to just exceptions, thus, taking down the information in writing is, therefore, very necessary to be complied with. THE proviso appended to Section 42(1) of the Act reads as under : "Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief." Sub-section (2) of Section 42 of the Act provides that such an information reduced in writing should be communicated to his immediate superior officers within seventy- two hours. THE information was received on the previous night. the purported recovery was made at 5 a.m. Even the Senior Superintendent of Police was aware thereof, who had received the information first and directed PW7 to conduct the raid. No explanation has been offered as to why the mandatory requirements of law could not be complied with." P. Ws. 1 and 9 have stated that information was not reduced into writing. But if the information was reduced in writing it should be communicated to the immediate superior within 72 hours. P. W. 1 received information and his superior P. W. 2 was also with him at the time of searching the house of 1st accused. Section 42(2) of the Act provides, when the information is taken down by officer in writing it shall be sent to the immediate superior officer within seventy two hours. Section 42(1) of the Act contemplates that if the officer has reason to believe from personal knowledge or information given by any person and taken down in writing that any offence punishable under this Act has been committed may proceed with the functions mentioned in sub-sections (l)(a) to (d) of Section 42. In the abovesaid case before the Supreme Court, the senior Superintendent of Police received information and directed his subordinate to conduct the raid. But he did not send the information to his superiors. (11) BUT in the present case on hand, the above said provision has duly been complied with by the Customs personnel. Ex. P. 28 is copy of the wireless message sent by Mr. But he did not send the information to his superiors. (11) BUT in the present case on hand, the above said provision has duly been complied with by the Customs personnel. Ex. P. 28 is copy of the wireless message sent by Mr. A. Muthiah, Superintendent, Customs Circle, Remeswaram, to his immediate superior, the Deputy Commissioner of Customs, Customs Division, Ramnad, under intimation to the Additional Commissioner of Customs, Customs Division, Ramnad and the Commissioner of Customs, Head Quarters, Trichy. It is sent on 18-12-2003 itself under the caption "Report under Section 42". It intimates the superior officers as to the information received by the officials and the initiation of proceedings as narrated by P. Ws. 1 and 2 aftermath such receipt of information, recovery and conducting of field test to ascertain the substance as 'Morphine' as well. (12) A Constitution Bench of the Honourable Supreme Court of India has laid down law as to the procedures to be adopted by the personnel and appreciation of the stages and steps taken by the Court in Karnal Singh v. State of Haryana (2009) 8 Supreme Court Cases 539) : (2009 AIR SCW 5265 : 2009 Cri LJ 4299) case. After referring to earlier decisions of the Supreme Court on this subject, the Constitution Bench has laid down the principles as follows : "35................ (a)to(b)............ (c) In other words, the compliance with the requirements of.Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act, 9 of 2001." The Apex Court is of the view that if information is received, it has to be reduced to writing and a copy of which has to be sent to the superior which normally precede the entry of search and seizure by the officer and if there is any delay in compliance to the provision, the delay shall be duly explained by the authority concerned. When urgency warrants to proceeed to the spot at once, even delayed compliance will satisfy the statutory requirement. If there were no explanation for the delayed compliance, then it would evolve suspicion. In the present case, the compliance report under Section 42 of the Act was sent by wireless message immediately after the search and seizure and arrest on the same day i.e., on 18-12-2003. This Court is of the considered opinion that there is no delay in sending the compliance report and even if there weree any delay, it stands explained property to the satisfaction of the Court. The case does not suffer from any infirmity as to the compliance of Section 42 of the Act. (13) IT is yet another contention of the learned counsel for the appellants is that in order to establish the search and seizure, the prosecution has brought P. Ws. The case does not suffer from any infirmity as to the compliance of Section 42 of the Act. (13) IT is yet another contention of the learned counsel for the appellants is that in order to establish the search and seizure, the prosecution has brought P. Ws. 3 and 4 independent witnesses to witness box, but they turned hostile to the prosecution and hence it has to be held that the search and seizure have not been proved by the prosecution. IT is no doubt true that P. Ws. 3 and 4 turned hostile. But they have admitted their signatures in their chief examination. In the cross- examination P. W. 3 says that they put their signatures in the Customs office. Even though they turned hostile to the prosecution, their hostility could not in any way harm the prosecution for the reason that in view of the admission of their signatures. In this context in 2004 (2) EFR 275 : (2004 Cri LJ 4536) (Nankoo v. State of U. P.) the Allahabad High Court has observed that even though the public witnesses turned hostile, since they admitted their signatures in the seizure memo there could be no observation that the proceedings are vitiated. I am in respectful agreement with the said observation. In Section 50 of the Act there is no statutory requirement for the prosecuting agency to take public witnesses for search and seizure. In the considered opinion of this Court, the admission of the signatures by P. Ws. 3 and 4 is enough to show that they were present in the occurrence place and signed the records. (14) ANOTHER leaf of contention of the learned counsel for the appellants is that the property seized by P. W. 9 on 18-12-2003 was sent to trial Court only on 2-1 -2004, that no documents or godown register (Malkhana Register) were produced before the Court to show where the contraband was kept in between days, that P. W. 6 Balakrishnan received the samples for chemical analysis from the Court on 2-1-2004 but he handed over the contraband to the Chemical lab only on 7-1-2004 and that there is no document to show that where the contraband was kept for in between days which clearly shows that there is more chance of tampering with the contraband during in-between days which vitiate the entire process. The property seized by the officials was despatched to the Special Court under Form-95 as evident from Ex. P. 30. However, the Court received the property on 22-12-2003. Form 95 is dated 18-12-2003. The endorsement on the reverse of Ex. P. 30 shows that on 18-12-2003 itself the contraband was produced before the Judicial Magistrate Court, Rameswaram and the learned Magistrate made endorsement on the reverse of Ex. P. 30 returning the same by stating "Produce the property before the concerned Court." Thereafter on 22-12-2003 the property was produced before the Special Court. In this context the evidence of P. W. 9 is relevant. He would say that from 18-12-2003 upto 2- 1-2004 the contraband was in his possession and he has not produced any document to show that they were in his possession during the said period. But after receipt of the contraband by the Special Court on 22-12-2003, there is no material to show that it was again returned to P. W. 9. Hence, this Court is of the opinion that the evidence of P. W. 9 in this regard is not correct. However, from 18-12-2003 to 21-12-2003 as per the evidence of P. W. 9, the Superintendent of Customs, it is under his custody. Section 55 of the Act requires an officer in charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act. Hence, there is no wrong on the part of P. W. 9 to keep the contraband under his safe custody. (15) IN 1989 Cri. L. J. 1412 (State of Himachal Pradesh v. Sudarshan Kumar) a Division Bench of Himachal Pradesh High Court has held that the provisions under Section 55 of the Act are directory in nature and the violations could not result in order of discharge of the accused. As far as the retention of the contraband between 2-1-2004 to 7-1- 2004 is concerned, it is contended by the appellant's side that it is not stated, under whose custody it was kept during that period. P. W.6, INspector of Customs would say that on 5-1-2004 by means of Ex. P. 19, the Superintendent of Customs sent the contraband to the chemical laboratory of Customs at Chennai. Even if the contraband was received for chemical analysis by P. W. 6 from the Court with letter Ex. P. W.6, INspector of Customs would say that on 5-1-2004 by means of Ex. P. 19, the Superintendent of Customs sent the contraband to the chemical laboratory of Customs at Chennai. Even if the contraband was received for chemical analysis by P. W. 6 from the Court with letter Ex. P. 20 on 2-1-2004, it was handed over to the chemical lab on 7- 1-2004. Even though P. W. 6, would say that Ex. P. 20 is dated 2-1-2004, the side initials found in Ex. P. 20 would show that it came to Court on 22-12-2003. Nowhere in the said letter the date of letter is not mentioned. Ex. P. 2 is Form - I deposit Memo, which shows that on 6-1-2004 P. W. 1 deposited the contraband with the superintendent by name R. Sekar. However, the said Sekar was not examined. Ex. P. 2 would show that on 6-1- 2004 it was duly deposited with the Superintendent of Customs, Customs Circle, Rameswaram. It is also spoken by P. W. 1 that by means of Ex. P. 2 he deposited the contraband in customs godown. As required by Section 55, it has been shown that it is under the custody of responsible police officer viz., Superintendent of Customs. (16) IN AIR 1999 Sc 2355 : (1999 Cri Lj 3663) (Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras), the Apex Court has held that as contended by the accused it cannot be said that the sample which was examined by chemical analyst was same as sent by Court, that samples were prepared in Court in the presence of presiding Magistrate and were properly packed and Court seal was applied to them, chemical analyst had found the seal intact and in view of the said facts there is no room for doubt. IN this case, the seals put by the officials at the time of seizure of the property the LTI and signatures of A1 and A2 respectively had been kept intact till it was received by the chemical analyst as per evidence. There is no question to prosecution witnesses to the effect that the LTI of Al, Signature of A2 and seals of the office were inter-meddled with. IN the interregnum period, the custody of the contraband has also been explained before the Court. Hence, there is nothing to smell rat in this regard. There is no question to prosecution witnesses to the effect that the LTI of Al, Signature of A2 and seals of the office were inter-meddled with. IN the interregnum period, the custody of the contraband has also been explained before the Court. Hence, there is nothing to smell rat in this regard. Yet another argument projected on behalf of the appellants is that there is no evidence to show that A1 after the alleged office harboured A2 and there is no specific question put to Al under Section 313 of Cr. P. C. that A1 harboured A2. A scrutiny of the examination of Al under Section 313 Cr. P. C. would show that the 2nd accused was present in her house at the time of search and while he was enquired, he stated that he belonged to Thalaimannar in Ceylon. When she was querried under Sec. 313 Cr. P. C, specific questions were posed to her to the effect that P. W. 1 has deposed that when he came to know through Kandasamy that 2nd accused located the house of A1 and stayed there. Hence, the contention that no categorical question was put to 1st accused during the examination under Section 313 Cr. P. C., has no legs to stand. (17) IT is also contended by the learned counsel for the appellants that no warning was given by the officers before recording the confession of the accused that they could be used against them and that the statements were obtained in the customs office under the custody of the customs officer and therefore these statements are not voluntary and are inadmissible in evidence. (18) EXS. P. 3, P. 4 and P. 32 are the confession statements given by A1, A2 and A3 respectively. They have stated therein that they have given the confession statement without compulsion of anybody else. The signatures of the accused have also been obtained in the confession statements. Only during the questioning under Section 313 Cr. P. C, the accused have simply denied giving the confession statements to the officials. They have not specifically mentioned even in their written statement submitted by them under Sec. 313 Cr. P. C. The 2nd accused has stated that the officials assaulted him, harassed him and obtained signatures in certain documents and blank papers. It is not suggested on his behalf to the prosecution witnesses. They have not specifically mentioned even in their written statement submitted by them under Sec. 313 Cr. P. C. The 2nd accused has stated that the officials assaulted him, harassed him and obtained signatures in certain documents and blank papers. It is not suggested on his behalf to the prosecution witnesses. 3rd accused has given confession statement Ex. P. 32 while he was in custody in Salem Central Jail in the presence of Superintendent of Prisons, Central Jail at Salem. He has also denied such recording of confession statement from him. All the accused have not specifically stated that the confession statements from them were obtained under compulsion and that they did not give them voluntarily. There is no suggestion on their side to the concerned prosecution witnesses. Further, at the earliest point of time when they have produced before the Magistrate they did not represent as regards compulsory recording of confession statement. The learned Judicial Magistrate has recorded in the remand report that no complaint against police. In such circumstances the decision of the Apex Court in Pon Adithan's case ( AIR 1999 SC 2355 : 1999 Cri LJ 3663) (supra), relied upon by the the trial Court has to be referred and followed. The gist of the judgment goes thus: "8. ... ...... P. W. 1 had taken the appellant to her office and the confessional statement came to be recorded at about 8 p.m., no doubt, while the appellant was in custody of P. W. 1. But that by itself cannot be regarded as sufficient to hold that the confessional statement was made by the appellant under pressure or compulsion. No complaint was made by the appellant when he was produced before the Magistrate on the next day nor he had made any complaint thereafter till his statement came to be recorded under Section 313 Cr. P. C. It was only during the trial that a suggestion was made to P. W. 1 and subsequently when the appellant gave a statement under Section 313 Cr. P. C. he stated that the confessional statement was given by him under threat and pressure. Even while giving his statement under Section 313 Cr. P. C., the appellant had not stated what was the nature of the threat given to him or in which manner the pressure was brought upon him. It was a vague statement. P. C. he stated that the confessional statement was given by him under threat and pressure. Even while giving his statement under Section 313 Cr. P. C., the appellant had not stated what was the nature of the threat given to him or in which manner the pressure was brought upon him. It was a vague statement. If in such circumstances the trial Court held that the confessional statement was voluntarily made and thought it safe to rely upon the same it cannot be said that it committed any error in doing so. We are also of the view that the said confessional statement was made by the appellant voluntarily and, therefore, it can be used against him." The trial Judge has also observed that even on the dates of remand extensions, the accused have failed to inform the Judicial Magistrate that they were harassed and forced to give confession statements. In the absence of their proper complaint as aforestated on the earlier occasions, it cannot be contended and held that the confession statements were not given by them voluntarily. This Court is of the opinion that they are voluntarily, which can be used against them., (19) IT is the bottom-line contention of the learned counsel for the appellant that even if it is considered that any Commission of offence has been established against the accused, still the sentence is not in accordance with Section 21(b) of the Act. IT is stated that 1.025 kgm. of Morphine was seized and the sample was analysed in which 16.53% of Morphine was found present and thus the total weight of Morphine, the objected material, in the entire contraband would weigh 169.43 gms. alone which is lesser than the commercial quantity and higher than the small quantity and hence conviction under Section 21(c) of the Act is not sustainable. (20) P. W. 8, Chemical Analyst would say that the sample was qualitatively tested based on the recommended method of testing Narcotic Drugs and Psychotropic Substances given in the United Nations Manual, that it answers test for the presence of Morphine and its content in the sample is 16.53%. His report is Ex. P. 26. The purity test has proved that the seized contraband contained 169.43 gms. of morphine in total of 1.025 kgm. As per the table annexed to the Act, as far as Morphine is concerned, upto 5 gm. His report is Ex. P. 26. The purity test has proved that the seized contraband contained 169.43 gms. of morphine in total of 1.025 kgm. As per the table annexed to the Act, as far as Morphine is concerned, upto 5 gm. is small quantity and 250 gm. and above is commercial quantity. Admittedly the percentage of Morphine contained in the contraband is lesser than commercial quantity and above the small quantity. In this juncture Section 21(b) of the Act plays role. Section 21 of the Act with proviso reads thus : "21.Punishment for contravention in relation to manufactured drugs and preparations : Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-state, exports inter state or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable (a) Where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) Where the contravention involves quantity, lesser than commericial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. (c) Where the contravention involves commercial quantity with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh but which may extend to two lakh rupees; Provided that the Court may, for the reasons to be recorded in the judgment impose a fine exceeding two lakh rupees". Learned counsel for the appellants placed strong reliance upon a much celebrated ruling on this subject of the Honourable Supreme Court in 2008 (5) SCC 161 : ( AIR 2008 SC 1720 : 2008 Cri LJ 2250) (E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau). Following is the relevant portions in the said judgment. "20. In the present case, the narcotic drug which was found in possession of the appellant as per the Analyst's report is 60 gms. which is more than 5 gms., i.e. small quantity, but less than 250 gms., i.e. commercial quantity. The quantity of 60 gms. Following is the relevant portions in the said judgment. "20. In the present case, the narcotic drug which was found in possession of the appellant as per the Analyst's report is 60 gms. which is more than 5 gms., i.e. small quantity, but less than 250 gms., i.e. commercial quantity. The quantity of 60 gms. is lesser than the commercial quantity, but greater than the small quantity and, thus, the appellant would be punishable under Section 21(b) of the NDPS Act. Further, it is evident that the appellant is merely a carrier and is not a kingpin. 21. In these circumstances, the ends of justice would be subserved if we reduce the sentence of the accused appellant to 6 years rigorous imprisonment with fine of Rs. 20,000/- and in default of payment of fine rigorous imprisonment for six months. We order accordingly. 22. The accused appellant is stated to be in jail since 6-3-2001. He has, therefore, undergone the sentence imposed on him. He shall be set at liberty forthwith if not required in any other case." (21) SUBSEQUENTLY in (2009) 4 SCC 42 : ( AIR 2009 SC 1977 ) (State of NCT of Delhi v. Ashif Khan alias Kalu), the Supreme Court has referred and applied the principles laid down in Michael Raj's case. Hence as per the said decisions, the accused have to be dealt with under Section 21(b) of the Act. (22) THE learned counsel for the 3rd accused would argue in vehemence that there is no material available to show the complicity of the 3rd accused with the alleged offence, that excepting the confession statement reportedly given by 1st accused there is no other evidence to lend assurance to the same so as to enable the Court to decide that the 3rd accused is also guilty of the offence and that the settled law on the point is that without any corroboration from other circumstances, the Court cannot act solely on the confession made by the co-accused to convict another co-accused. In support of his contention he has produced the following decisions : 1. AIR 1952 SC 159 : (1952 Cri LJ 839) (Kashmira Singh v. THE State of Madhya Pradesh) 2. 2002 SCC (Crl) 1084 : ( AIR 2001 SC 2422 : 2001 Cri LJ 3290) (Abdul Rashid v. State of Bihar) 3. In support of his contention he has produced the following decisions : 1. AIR 1952 SC 159 : (1952 Cri LJ 839) (Kashmira Singh v. THE State of Madhya Pradesh) 2. 2002 SCC (Crl) 1084 : ( AIR 2001 SC 2422 : 2001 Cri LJ 3290) (Abdul Rashid v. State of Bihar) 3. 2005 SCC (Crl) 1715 : ( AIR 2005 SC 3820 : 2005 Cri LJ 3950) (State N. C. T. of Delhi v. Navjot Sandhu) Among the above cases, the case in Navjot Sandhu was referred along with other cases by the Honourable Supreme Court in its Full Bench decision reported in 2009 (2) Crime 171 SC - 2009 (12) SCC 161 : (AIR 2009 SC (Supp) 1811 : 2009 Cri LJ 2407) (Union of India v. Bal Mukund and others). (23) IN Abdul Rashid's case ( AIR 2001 SC 2422 : 2001 Cri LJ 3290) (supra) it is held that the confessional statement was inadmissible in evidence since Superintendent of Excise before whom it was made, was a police officer within the meaning of Section 25 of the Evidence Act. The said case is under the provisions of Bihar and Orissa Excise Act, 1915. IN the present case, the offences belong to the Customs Department and Section 108 of the Customs Act would come to play. IN Bal Mukund case (supra), after elaborately discussing and dealing with the subject on this point, the Lordships were pleased to hold that in the facts and circumstances of the case, the purported confessions made by the respondent Nos. 1 and 2 could not in absence of other corroboration form the basis of conviction. (24) CONFESSION statement given by the first accused Ex. P. 3 alone cannot be relied to reach a conclusion that the co-accused viz., the 3rd accused is also connected to the offences. She has stated that on 18-12-2003 at about 4.00 a.m. 3rd and 4th accused came to her and handed over a parcel and told her that Norcotic Substance was inside the parcel and asked her to deliver it to Kumar. The husband of first accused by name Panchavarnam has given a statement before the Customs Officials stating that his wife is having intimacy with 3rd and 4th accused. The husband of first accused by name Panchavarnam has given a statement before the Customs Officials stating that his wife is having intimacy with 3rd and 4th accused. When the conduct of the 3rd accused is looked into, as per his confession statement, on learning a case was registered against him under the provisions of the Act, he was changing the place of stay from Madurai to Trichy, Trichy to Chennai, Chennai to Kodaikanal and Kodaikanal to Velankanni, that he severed connection with his family members from the date of the registration of the case, that he did not contact his family members under the impression that he would be apprehended, if he contacted his family members and he also stayed in various places in bogus names and address and that in the offence relating to Narcotic Substances, the Courts do not normally grant bail and hence he decided to surrender before the Court after the charge-sheet was laid. The subsequent conduct of the 3rd accused aftermath the registration of the case would indicate that he was having connection with the offence. The trial Court has relied upon this circumstance. Subsequent conduct of the 3rd accused can candidly be inferred to find guilt on his part and that the statement of husband of 1st accused would also lend support to the confession given by the 1st accused. These are the other circumstances, corroborating confessions by co-accused, exposing nexus of 3rd accused to the crime. In this context, relevancy of evidence as to subsequent conduct of a person under Section 8 of the Indian Evidence Act is also referrable. "8. Motive, preparation and previous or subsequent conduct - Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1 The word "conduct" in the section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2 When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant." (25) THE Court cannot ignore the subsequent conduct of the 3rd accused as stated by him. It is argued that no contraband was seized from him. Even then his subsequent conduct stares at him. THE said two circumstances duly corroborate the confession statement given by the first accused. Hence, it is held that the confession of co-accused Al is corroborated by other materials in this case. (26) A careful scrutiny of the materials in this case has paved way to this Court to reach a conclusion that the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt. The point is answered accordingly. Point No. 2. As far as the conviction and sentence portions of the judgment of the trial Court are concerned, this Court differs. All the accused should have been convicted under Section 21(b) of the Act. The conviction under Section 21(c) of the Act is not at all sustainable. Except the conviction under Section 21(b) of the Act and the modification of sentence, all other aspects in the trial Court judgment are confirmed. (27) ABUNDANT evidence are available showing that the first accused has allowed her premises to be used for commission of offence under Section 25 of the Act. The provision reads as follows : "25. Punishment for allowing premises, etc., to be used for commission of an offence : Whoever, being the owner or occupier of having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence." 40.(a). The Court below has found her guilty and convicted her under Section 25 of the Act and sentenced to undergo R. I. for 10 years and also to pay a fine of Rs. 1,00,000/- in default to undergo R. I. for 2 years. 40.(b). The Court below has found her guilty and convicted her under Section 25 of the Act and sentenced to undergo R. I. for 10 years and also to pay a fine of Rs. 1,00,000/- in default to undergo R. I. for 2 years. 40.(b). Further, she has been convicted under Section 27-A of the Act and sentenced to undergo R. I. for 10 years and also to pay a fine of Rs. 1,00,000/- in default to undergo R. I. for 2 years. Section 27-A of the Act provides as follows : "27-A. Punishment for financing illicit traffic and harbouring offenders :Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of Section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees : Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakhs rupees." 40.(c). Provision 27-A of the Act is a penal section, enabling the trying Court to impose punishment for harbouring the offenders. In this case, it has been proved beyond reasonable doubt that she harboured the second accused. Hence she is liable to be punished under this Section. 40.(d). As far as 2nd accused is concerned, he is a citizen of Ceylon, who had come over here by illicit conveyance without any valid passport, stayed inside territory of India and indulged in the offence with other accused. Hence he has been convicted under Section 3(2)(a) of Foreigners Order, 1948, r/w Section 14 of the Foreigners Act, 1946 and sentenced to undergo R. I. for 3 years and also to pay a fine of Rs. 2,000/- i/d to undergo imprisonment for 6 months, which deserve to be confirmed and they are accordingly confirmed. 40. (e). Rule 3 (2) of the Foreigners Order, 1948 goes thus : "3. Power to grant or refuse permission to enter India : (1)............... (a)to (b)............... 2,000/- i/d to undergo imprisonment for 6 months, which deserve to be confirmed and they are accordingly confirmed. 40. (e). Rule 3 (2) of the Foreigners Order, 1948 goes thus : "3. Power to grant or refuse permission to enter India : (1)............... (a)to (b)............... (2) Leave to enter shall be refused if the civil authority is satisfied that (a) the foreigner is not in possession of a valid passport or visa for India or has not been exempted from the possession of a passport or visa;" Section 14 of the Foreigners Act, 1946 goes as under : 14. Penalties: If any person contravenes the provision of this Act or of any order made thereunder, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if such person has entered into a bond in pursuance of CI. (f) to subsection (2) of Section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting Court why such penalty should not be paid." The modified conviction and sentence are available in tabular column annexed herewith. The point is answered as indicated above. (28) IN fine, all the three appeals are allowed in part convicting and sentencing the appellants as follows : (i). Accused No. 1 to 3 are convicted under Section 21(b) of the Act and sentenced to undergo rigorous imprisonment for the period they have already undergone (1st and 2nd accused from 19-12-2003 till date; 3rd accused 22-12-2004 till date) and each of them are also sentenced to pay a fine of Rs. 15,000/- (Rupees fifteen thousand only) each, in default to undergo rigorous imprisonment for 2 years each. (ii) The first accused is also convicted under Section 25 of the Act and sentenced to undergo rigorous imprisonment for a period of 10 (ten) years and she is also imposed with a fine of Rs. 1,00,000/- (Rupees one lakh only) in default of payment, to undergo rigorous imprisonment for 2 years. (iii) The first accused is also convicted under Section 27-A of the Act and sentenced to undergo rigorous imprisonment for 10 years and she has also to pay a fine of Rs. 1,00,000/- (Rupees one lakh only) in default of payment, to undergo rigorous imprisonment for 2 years. (iii) The first accused is also convicted under Section 27-A of the Act and sentenced to undergo rigorous imprisonment for 10 years and she has also to pay a fine of Rs. 1,00,000/- (Rupees one lakh only) in default to undergo rigorous imprisonment for 2 years. The sentences under this section imposed upon her shall run concurrently with the sentences handed down on her under Sections 21(b) and Section 25 of the Act. (Total fine amount: Rs. 2,47,000/-). (iv) The conviction and sentence imposed on the 2nd accused with the provision of Foreigners Order, 1948 and Foreigners Act, 1946 are confirmed. Since the 2nd accused has already undergone imprisonment from 19- 12-2003 and the sentence under the Foreigners Act has been directed to be served by him concurrently with the imprisonment under the provision under Section 21(d) of N.D.P.S. Act, and the 3rd accused has also served the sentence as per the order of this Court, both of them are directed to be set at liberty, if they were not required for any other cases, provided they have paid fine. (v) It is made clear that the default sentences for non-payment of fine shall not run concurrently. (Total Fine Amount: for A1 : Rs. 2,15,000/-; of A2 : Rs. 17,000/-; and for A3: Rs. 15,000/-). For easy reference, the conviction and sentences imposed by the trial Court, modified/confirmed by this Court are given hereunder in tabular column, ###C:\Program Files\Regentdatatech\Images\judgement_2047_crlj_2011_204701_CRLJ_2011.jpg### Order accordingly. --- *** ---