JUDGMENT Anurag Kumar, J. This is an appeal preferred by the appellant Afzal under Section 374(2) Cr.P.C. against the judgment and order dated 15.03.2004 passed by Special Judge, N.D.P.S. Act, Lucknow, convicting the appellant Mohd. Afzal and one Banwari Lal of the charge under Section 20(b)(ii) and 25 of the N.D.P.S. Act and sentenced the appellant Afzal to rigorous imprisonment for 14 years and a fine of Rs. 1,50,000/- for the offence under Section 20(b)(ii) of N.D.P.S. Act and in default of payment of fine, the appellant will undergo a further rigorous imprisonment for three years. The prosecution case, in brief, is that the Assistant Commissioner, Custom on receiving a secret report directed Sri Sanjai Chatterji, Shailendra Mohan Bhatnagar and Debo Prasad Halder to keep surveillance and intercept Ambassdor Car No. DBC/9581 on 28.07.2001 at Lucknow-Barbanki road. In compliance of the above direction, all the above three Inspectors of Custom alongwith two public witnesses Sri Rajiv Dar and R.K. Srivastava kept surveillance at Lucknow-Barabanki road near Gas & Gadget Godown, Lucknow. On 28.07.2001, at about 11.30 A.M., the Ambassador Car No. DBC/9581 was seen coming towards Lucknow and was signaled to stop, but the car sped away. The officers gave a chase on their departmental car and forced them to stop near Sushma Hospital, Lucknow. The car was being driven by accused Banwari Lal and accused Afzal and Ramesh Chandra were sitting on front seat. The officers of the Customs Department disclosed their identity and also disclosed the secret information to the accused and the purpose of interception and also told that Charas is being smuggled by them. In compliance of Section 50 of N.D.P.S. Act, Sri Sanjai Chatterji, Customs Inspector told the each accused individually that they have right to be searched before the nearest Magistrate or Gazetted Officer. The accused consented for the search of their person and car before the Gazetted Officer. On this request of all the three persons alongwith car and public witnesses were brought to the Cutsoms Office at Gomti Nagar, Lucknow and were produced before Assistant Commissioner and Sri Abhay Kumar Srivastava, Superintendent, the gazetted officer of the department. The officers also offered their personal search prior to the search of accused and the car but the accused refused to search the person of the officers. On personal search, Rs. 545 were recovered from Ramesh. Rupees 447 from Afzal and Rs. The officers also offered their personal search prior to the search of accused and the car but the accused refused to search the person of the officers. On personal search, Rs. 545 were recovered from Ramesh. Rupees 447 from Afzal and Rs. 47 from Banwari Lal, which were returned to them. On thorough search of the car, 20 polythene packets sealed by the tapes were recovered from cavity specially built in the dash-board of the car and 30 polythene packets sealed by tapes were from another cavity in the Diggy of the car. On opening of these packets, black brown coloured bricks were found in each packet. In 49 packets 4 bricks in each packet and in one packet three bricks were found. All recovered material was weighed and it was found to be 98.765 Kg. All the three persons were arrested and Fird was prepared and the statement of accused under Section 108 of Customs Act was recorded, in which, they confessed their crime and involvement in smuggling of Charas. Sample of Charas was taken and sent to Chemical Examiner Central Laboratory, New Delhi and on chemical analysis it was found to be Charas. Sri V.K. Joshi was appointed as Investigating Officer who recorded the statement of witnesses and filed complaint in the case. Accused persons were charged for offence under Section 20(b)(ii) and 25 of N.D.P.S. Act. Prosecution examined five witnesses i.e. P.W.-1 Sanjai Chatterji, P.W.-2 Shailendra Mohan Bhatnagar, P.W.-3 Sri Abhay Kumar Srivastava, Superintendent, P.W.-4 Sri Sanjai Srivastava, Incharge, Mal-Khana, P.W.-5 Sri V.K. Joshi, Investigating Officer of the case. Hearing the argument of both side and going through the record, the learned court below by his judgment dated 15.03.2004 convicted the appellant Afzal and another accused Banwari Lal of the charges under Section 20(b)(ii) and 25 of the N.D.P.S. Act and sentenced the appellant Afzal to rigorous imprisonment for 14 years and a fine of Rs. 1,50,000/- for the offence under Section 20(b)(ii) of N.D.P.S. Act and in default of payment of fine, the appellant will undergo a further rigorous imprisonment for three years. Aggrieved by the said judgment, this appeal was preferred by the appellant Afzal mainly on the ground that the learned court below committed serious error of law in accepting the statement recorded by Custom Officer Under Sections 107 and 108 of the Customs Act. Aggrieved by the said judgment, this appeal was preferred by the appellant Afzal mainly on the ground that the learned court below committed serious error of law in accepting the statement recorded by Custom Officer Under Sections 107 and 108 of the Customs Act. In case, under N.D.P.S. Act, sections of Customs Act are inadmissible, statement was recorded in illegal custody of unauthorised officer. Public witnesses were falsely introduced. Mandatory provisions of Section 42, 50 and 52 of the N.D.P.S. Act, were not followed. Recovered article was kept with Custom Officer till it was sent to chemical examination. Trial Court wrongly placed reliance on the forged evidence manufactured by Customs Officers. In every view of the matter, conviction and sentence awarded are not sustainable in eye of law. There was no justification for different sentence to appellant Afzal. The sentence awarded is too severe. The impugned judgment is liable to be set aside. Heard learned counsel for the appellant and learned counsel for Union of India. Learned counsel for the appellant mainly confined his argument on the point that learned lower court wrongly relying on the confessional statement of the accused Afzal convicted him and learned trial court wrongly placed reliance on the forged evidence manufactured by Custom Officers. The evidence produced by prosecution is not reliable at all. The accused Afzal is only owner of the vehicle. The recovered Charas belongs to accused Ramesh Chandra and Banwari Lal was driving the Car. The punishment awarded to appellant is very severe and harsh. He was awarded a sentence with rigorous imprisonment of 14 years and a find of Rs. 1,50,000/-. The appellant is in jail since his inception in the case and he has already undergone a sentence of about 11 years and 7 months. The fine imposed on him is Rs. 1,50,000/- which is very excessive and the punishment for non-payment of this fine is 3 years which is very harsh and severe. Sentence may be modified to the sentence he has already undergone and punishment for non-payment of fine may also be reduced. Contrary to it, the learned counsel for Union of India submitted that 98.76 kg of Charas was recovered from the accused and he was rightly convicted for rigorous imprisonment of 14 years and a fine of Rs. 1,50,000/- and in default 3 years rigorous imprisonment. Contrary to it, the learned counsel for Union of India submitted that 98.76 kg of Charas was recovered from the accused and he was rightly convicted for rigorous imprisonment of 14 years and a fine of Rs. 1,50,000/- and in default 3 years rigorous imprisonment. Custom Officers who have seized the Charas from the possession of accused are not a police officer and statement recorded before them are reliable and reliance can be placed on the confessional statement of accused recorded before them. All the mandatory provisions of Section 42, 50 and 52 of the N.D.P.S. Act were followed. The recovered Charas was not found on the personal search of any of the accused. The Charas was being transported by a Car. Accused persons were transporting the Charas. 98.76 Kg of Charas was recovered from them and considering the quantity of Charas the sentence awarded to appellant is appropriate. It is neither harsh nor severe. Appeal has got no force and is liable to be dismissed. Considering the submission of both side and going through the record, it is quite clear that learned trial Judge passed the impugned judgment after taking much pains in deciding each and every arguments of the accused appellant. The learned trial court has analyzed the evidence in right prospective and has reached to the correct conclusion. The judgment is well discussed and he rightly relied on the prosecution witnesses and confessional statement of accused persons. I do not find any force in the submission of learned counsel for the appellant that prosecution failed to prove his case. The witnesses of fact before whom Charas was recovered were Custom Officers and there is no reason to disbelieve their evidence. Their evidence was supported by the confessional statement of accused which was recorded before Custom Officers and as they are not police personnel, hence on the statement recorded before them reliance can be placed. From the above discussion, it is clear that the prosecution fully proved that Charas was recovered from the possession of appellant. The recovered Charas is of commercial quantity and the conviction recorded by trial court of appellant under Section 20(b)(ii) of N.D.P.S. Act is justified and I confirm it. As far as, submission of learned counsel of the appellant regarding sentence of the accused Afzal, 14 years rigorous imprisonment and a fine of Rs. The recovered Charas is of commercial quantity and the conviction recorded by trial court of appellant under Section 20(b)(ii) of N.D.P.S. Act is justified and I confirm it. As far as, submission of learned counsel of the appellant regarding sentence of the accused Afzal, 14 years rigorous imprisonment and a fine of Rs. 1,50,000/- and in default of payment of fine 3 years rigorous imprisonment is very harsh and excessive. The incident is of the year 2001 and more than 11 and ½ years has already passed away. The accused Afzal is in jail since then and there is nothing on record during trial or thereafter that appellant Afzal has any criminal history. In these circumstances, considering the fact that the appellant is the owner of the Car and other circumstances of the case, I think that conviction of 14 years can be reduced to 11 years and six months rigorous imprisonment and it will serve the purpose. As regards sentence of imprisonment in default of fine, Section 30 of Cr.P.C. provides for sentence of imprisonment in default of fine. Section 30 reads as under: - "30. Sentence of imprisonment in default of fine-(1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provide that the term- (a) is not in excess of the powers of the Magistrate under Section 29; (b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of fine. (2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 29." The Hon'ble Apex Court in (2008) 1 SCC (Cri) Shanti Lal Versus State of M.P. said that the term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non- payment of fine. It is a penalty which a person incurs on account of non- payment of fine. Relying on AIR 1941 All 608, Mendi Ali case, in which it was held as under: - "So far as the fine is concerned, I cannot think it is proper, in the case of a poor peasant, to add to a very long term of substantive imprisonment a fine which there is no reasonable prospect of the accused man paying and for default in paying which he will have to undergo a yet further term of imprisonment. And, in my judgment, without venturing to say whether it is a course which is strictly in accordance with the law or not, I cannot help thinking that it becomes all the more undesirable to impose such a fine where the term of imprisonment to be undergo in default will bring the aggregate sentence of imprisonment to more than the maximum term of imprisonment sanctioned by the particular section under which he is convicted. I venture to think that Judges should exercise a careful discretion in the matter of superimposing fines upon long substantive terms of imprisonment." The Hon'ble Apex Court in Shanti Lal (supra) in para 31 and 32 said that "The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or any other appropriate judicial proceedings or 'otherwise'. A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only power, but duty of the court to keep in view the nature of offence, circumstances under which it was committed, the position of offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine." A general principle of law reflected in Sections 63 to 70 I.P.C. is that an amount of fine should not be harsh or excessive. In that case, in default of payment of fine, the rigorous imprisonment of three years is reduced to rigorous imprisonment of six months by Hon'ble Apex Court. In the present case also, seeing the circumstances and other aspect of the case, the order of payment of fine of Rs. 1,50,000/- is appropriate, but an order that in default of payment of fine, the appellant shall undergo rigorous imprisonment of three years is reduced to rigorous imprisonment for six months. For the reasons aforesaid, the appeal is partly allowed. The conviction recorded against the appellant Afzal is confirmed, but the sentence imposed on the appellant to undergo rigorous imprisonment of 14 years is reduced to 11 years and six months and order of payment of fine of Rs. 1,50,000/- is also upheld, but an order that in default of payment of fine, the appellant shall undergo rigorous imprisonment for three years is reduced to rigorous imprisonment for six months to that extent the appeal filed by the appellant is allowed.