JUDGMENT : - Hon'ble SHARMA, J.—This appeal has been filed against the judgment dated 25.8.2007 passed by Special Judge, NDPS Cases, Chhabara, District Baran in Sessions Case No. 192/2005, whereby the learned trial court convicted the appellants for the offence under Section 8/18 of Narcotic Drug and Psychotropic Substance Act, 1985 (for short, "NDPS Act") and sentenced them to undergo 12 years' RI with fine of Rs. 1,50,000/-; in default of payment of fine, to further undergo six months' RI. 2. Brief facts of the case are that FIR bearing No. 105/2005 came to be lodged by one Shri Ganpat Singh, Sub-Inspector, Police Station, Bapcha, Baran stating therein that on 9.7.2005 at around 12.30 PM, when he along-with his team was on patrolling duty of his area, checking illegal work, reached at 'Dharnavada-Road' and started 'Nakabandi', during Nakabandi, it was found that two people driving a motor cycle came from Motipura, out of which one person, who was driving the motor cycle, had a bag, hanging from his neck and they crossed the railway line. When they saw the police party, they stopped the motor cycle and tried to run away. On suspicion, they were surrounded by the police and the police asked their whereabouts. They disclosed their names as Mukut S/o Hari Prasad, Resident of Motipura; and Khemraj S/o Madan Lal, R/o Bambuliya-Kalan, P.S. Anta. The police did not get satisfactory reply from them regarding their running on seeing the police party. Radha Kishan, Head Constable and Ram Das, F.C. were made independent witnesses and a notice under Section 50 was issued to them and their consent was taken for search. On being checked and searched by the police party, from the bag of Mukut, hanging in his neck, a black coloured semi wet liquor substance was found, which was identified as 'opium' and on weighing, it was found to be 8 kgs. in weight. Similarly, a white plastic bag was hanging on the left hand of Khemraj, which also contained black coloured semi liquor substance, which was also tested and found 'opium', weighing 8 kgs. They were not having any license for possessing the said quantity of opium. During investigation, it was found that the said opium was purchased from one Ghanshyam, as such they were guilty of offence under Sec. 8/18 of NDPS Act. 3. They were not having any license for possessing the said quantity of opium. During investigation, it was found that the said opium was purchased from one Ghanshyam, as such they were guilty of offence under Sec. 8/18 of NDPS Act. 3. After investigation, a charge sheet was submitted in the case against the appellants and case was committed for trial to the Court of Special Judge, NDPS Act Cases, Chhabra, Baran. The learned trial court framed charge against the appellants for the offence under Section 8/18 of NDPS Act. The appellants denied the charges and claimed for trial. The prosecution examined as many as nine witnesses and also produced documentary evidence, Ex. P-1 to P-17. Thereafter the statement of accused appellants were recorded under Section 313 Cr.P.C. The learned trial court, after hearing the arguments of both the sides, convicted the accused appellants and sentenced them for the offence under Sec. 8/18 of NDPS Act, as indicated here-in-above. 4. Against the said judgment dated 25.8.2007, the appeal has been preferred by the appellants. 5. Mr. P.K. Sharma, learned counsel for the appellants has contended that the trial court has not considered the mandatory provisions of NDPS Act, 1985 and passed the impugned judgment surreptitiously. He has further contended that the prosecution has not produced cash property (mall) before the trial court at any point of time nor it was exhibited or identified by the accused and the chemical report could be corroborated with the seized articles. He has further contended that the complainant (Ganpat Singh), who also carried out the search & seizure, was only an SI, as per his own statement as PW-1 and was not the SHO and as such he was not authorized person to make search and seizure, as per Notification dated 16.10.1986 and thus, there has been a violation of the mandatory provision of Section 42 of the Act of 1985. He has further contended that it is clear from the FIR Ex.-17 that the complainant, who carried out the search and seizure, directed one Ajeet Singh to bring independent witnesses, but since the independent witnesses were not available, two police personnel namely Radha Kishan, Head Constable and Ram Das, FC were appointed as independent witnesses. They cannot be said to be independent witnesses. They cannot be said to be independent witnesses. He has further drawn the attention of this Court on 'fard' checking and 'japti' Ex.-9 and contended that looking to the 'fard' checking and 'jabti' Ex.-9, it cannot be said that compliance of mandatory requirement under Section 50 of NDPS Act has been made because Sub Inspector neither falls in the category of Magistrate nor Gazetted Officer and is also not a person authorized under Section 42 of the Act, 1985. He has further drawn the attention of this Court upon the statement of prosecution witnesses, which are contradictory to each other and also drawn the attention of this Court on exhibits i.e. Ex.-1 to 17. He has also drawn the attention of this Court on the statement of defence witnesses i.e. DW-1 Bhagwati. In the last, he has requested to this Court that if this Court is not acquitting the accused appellants, in such circumstances either the appellants should be released for the period already undergone by them in confinement, and if not, then their sentence should be reduced from 12 years to 10 years, which is the minimum sentence prescribed under NDPS Act, on the ground that occurrence took place in the year 2005; accused appellants are not the habitual offenders; they belong to respectable family; at the time of occurrence the age of the appellants was approximately 30 years; they are married persons, having children and old parents; and they are in confinement since the last about 7 years, 11 months and 20 days. 6. On the other hand, learned PP appearing for the State opposed the same and contended that the trial court, after due discussion of the evidence of prosecution, in detail passed the judgment for conviction. He has further contended that appellants Mukut and Khem Raj are the brothers-in-law; one is looser and another is gainer; they were having 16 kgs. Opinion in toto, to sell the same to other persons. He has further contended that appellants Mukut and Khem Raj are the brothers-in-law; one is looser and another is gainer; they were having 16 kgs. Opinion in toto, to sell the same to other persons. He has drawn the attention of this Court upon the relevant part of the judgment of the court below, which is reproduced as under: ^^bl izdkj mijksä foospu ds vk/kkj ij vfHk;qä eqdqV o [ksejkt tks fd cguksbZ o lkys gS ,d gh eksVjlkbZfdy ij cSB dj dqy 8-8 fdyks vQhe ysdj fdlh nwljs O;fä;ksa dks nsus ds fy;s tk jgs Fks] chp esa gh mUgsa iqfyl us idM fy;k rFkk muds dCts ls dqy 16 fdyks vQhe cjken dh xbZA nksuksa ls i`Fkd i`Fkd nks nks lSEiy fy;s x;s rFkk tks lSEiy fof/k foKku iz;ksx'kkyk Hksts x;s muesa Hkh eksjfQu dh ek=k fcYdqy leku ikbZ xbZ ftlls ;g ckr izdV gks tkrh gS fd nksuksa ds dCts ls cjken dh xbZ vQhe fdlh ,d gh O;fä ls yh xbZ vQhe FkhA fof/k foKku iz;ksx'kkyk dh fjiksVZ izn'kZ ih16 ds vuqlkj 8-46 izfr'kr eksjfQu gksuk ikbZ xbZ gS tks fd vQhe dh vR;f/kd 'kq)rk dks izdV djrh gSA ekSds ls tks lSEiy fy;s x;s Fks] ,oa fof/k foKku iz;ksx'kkyk esa tkap ds le; tks lSEiyksa dk out ik;k x;k gS] muesa dksbZ vR;f/kd varj ugha gS rFkk bl izdkj dk varj lSEiyksa esa vkn`rk dh deh ds dkj.k vk tkus dk uksV Hkh bl fjiksVZ esa vafdr gSA QyLo:i vfHk;qä eqdqV 'kekZ iq= gfjizlkn 'kekZ tkfr czkã.k fuoklh cewfy;k Fkkuk vark ftyk ckjka ¼jkt-½ ds fo:) Lokid vkS"kf/k ,oa eu% izHkkoh inkFkZ vf/kfu;e dh /kkjk 8@18 ds vkjksi lUnsg ls ijs lkfcr djus esa vfHk;kstu i{k lQy jgk gSA vr% vfHk;qä eqdqV 'kekZ ,oa [ksejkt 'kekZ vf/kfu;e dh /kkjk 8@18 ds vkjksi ls nks"kfl) fd;s tkus ;ksX; gSA** 7. I have heard learned counsel for the parties and carefully considered the submissions made before me. 8. In the case of T. Thomsan vs. State of Kerala and Another reported in (2002) 9 Supreme Court Cases 618 this Lordships of Supreme Court observed as under:- "For the aforesaid reasons we are not inclined to disturb the finding on facts nor the conviction imposed on the appellants. However, learned counsel appearing for the appellants made a plea for reducing the sentence to the minimum period prescribed for the offence. However, learned counsel appearing for the appellants made a plea for reducing the sentence to the minimum period prescribed for the offence. The reason advanced by the counsel in support of the aforesaid plea is mainly that the narcotic drug (brown sugar) was only 506 grams and such a quantity does not warrant a sentence of such a harsh dimension. In the peculiar circumstances of these cases we are also of the view that the sentence can be limited to the minimum period prescribed under the provisions. We, therefore, reduce the sentence to RI for 10 years and a fine of Rs. 1 lakh under Section 21 of the Act for all the appellants. Regarding the offence under Section 25 in respect of the first accused Thomson also we reduce it to rigorous imprisonment for 10 years and a fine of rupees 1 lakh. We direct the sentences for the aforesaid two counts to run concurrently as for the first accused. In default of payment of fine, the appellants shall undergo imprisonment for a further period of one year." 9. Looking to the facts and circumstances of the case and the detailed discussion, which has been mentioned by the court below and that each accused appellant was having 8 Kg. Opium and both were sitting on the motor cycle and hanging bags in their neck and the learned trial court passed the judgment of conviction of the appellants after due appreciation of evidence. The learned trial court also considered the fact that Section 50 of the NDPS Act as well as Section 42 of the Act have been complied with. The detailed discussion has been given by the learned trial court at page no. The learned trial court also considered the fact that Section 50 of the NDPS Act as well as Section 42 of the Act have been complied with. The detailed discussion has been given by the learned trial court at page no. 10 of its judgment, the relevant part of which is as under:- ^^vfHk;qä ds 'kjhj ij yVds gq;s FkSyksa dh ryk'kh yh xbZ gS rFkk muds 'kjhj ij igus diM+ks esa fNikbZ gqbZ dksbZ lkexzh cjken ugha dh xbZ gSA vr% ,slh fLFkfr esa LVsV vkWQ iatkc cuke cynsoflag 1999¼6½ ,l-lh-lh- ist 172 ds vuqlkj vf/kfu;e dh /kkjk 50 dh ikyuk vko';d ugha gksrh gS & fdarq fQj Hkh Fkkukf/kdkjh us vf/kfu;e dh /kkjk 50 dh ikyuk dh gS rFkk QnZ tIrh izn'kZ ih9 esa Hkh bl ckr dk mYys[k fd;k x;k gS fd QnZ tIrh ls ysdj iqfyl Fkkus ij vkus ds i'pkr~ blds vuqlkj gh izkFkfedh izn'kZ ih17 ntZ dh xbZ gS ftldh udy esa Hkh vf/kfu;e dh /kkjk 50 dh ikyuk djus dk mYys[k gS rFkk bl izdkj izn'kZ ih9 o izn'kZ ih17 esa Fkkus ij eky dks ykdj iqu% lhYM djus dk Hkh mYys[k fd;k x;k gS rkfd izkFkfedh izn'kZ ih17 fnukad 10-7-2005 dks 5-30 ih-,e- ij eq[; U;kf;d eftLVªsV] ckjka ds le{k igqapk nh xbZ gSA vr% ;g ugha dgk tk ldrk gS fd vf/kfu;e dh /kkjk 50 dh ikyuk djus ds lEcU/k esa rFkk eky dks iqu% lhYM djus ds lEcU/k esa lk{khx.k dksbZ xyr c;ku dj jgs gks vFkok bl lEcU/k esa >qBh QnsZ ckn esa rS;kj dh xbZ gksA** 10. In this view of the matter, this Court cannot reduce the sentence of the appellants to the period already undergone by them in confinement because there is a minimum sentence of 10 years, but ends of justice would be met if the sentene awarded to the accused appellants under Sec. 8/18 of N.D.P.S. Act is reduced from 12 years to 10 years and the fine of Rs. 1,50,000/-, as awarded by the learned trial court is also reduced to Rs. 1,00,000/- 11. In view of the foregoing discussion, the appeal is partly allowed with the following directions:- i) The conviction of the appellants is maintained; ii) Their sentence is reduced from 12 years to 10 years under Section 8/18 of NDPS Act; iii) The fine of Rs.1,50,000/-, as imposed by the trial court upon the appellants is reduced to Rs.1,00,000/-. 1,00,000/- 11. In view of the foregoing discussion, the appeal is partly allowed with the following directions:- i) The conviction of the appellants is maintained; ii) Their sentence is reduced from 12 years to 10 years under Section 8/18 of NDPS Act; iii) The fine of Rs.1,50,000/-, as imposed by the trial court upon the appellants is reduced to Rs.1,00,000/-. In default of payment of fine, the appellants shall further undergo six months Rigorous Imprisonment. Impugned judgment stands modified, as indicated hereinabove.