JUDGMENT : Kanwaljit Singh Ahluwalia, J. The accused-appellants, five in number, namely (i) Radhulal @ Radheyshyam s/o late Gaurishankar, (ii) Kamlesh Sahu s/o Gokul Prasad Sahu, (iii) Revati Prasad s/o Late Puroshottam Das, (iv) Kalu Singh s/o Late Anar Singh and (v) Surendrapal s/o late Teja Singh were tried by the Court of Special Judge, Narcotic Drugs and Psychotropic Substances Act Cases (Additional Sessions Judge, No.1) Kota, in Special Sessions Case No.16/2006. 2. The trial Court, vide its impugned judgment dated 27.05.2008, convicted the accused-appellant, namely Rahdulal @ Radheyshyam for commission of offence punishable under Section 8/18 (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after to be referred as the Act of 1985), and the accused-appellants, namely Kamlesh Sahu, Revati Prasad and Kalu Singh for commission of offence punishable under Sections 8/18 (B) r/w 8/29 of the Act, and sentenced each of them to undergo twelve-years rigorous imprisonment and pay a fine of Rs.One Lakh each, in default thereof to further undergo three years rigorous imprisonment to each. 3. The trial Court, however, acquitted accused appellant, Surendrapal s/o Teja singh by giving benefit of doubt. 4. Aggrieved against the conviction and sentence, appellant, Kamlesh Sahu has filed S.B. Criminal Jail Appeal No.59/2009, Kalu Singh has preferred S.B. Criminal Appeal No.637/2008, Revati Prasad has instituted S.B. Criminal Appeal No.1099/2008 and Radhulal @ Radheyshyam has filed S.B. Criminal Appeal No.137/2009 praying inter alia that their conviction and sentence, be set aside, and they be acquitted of the charges levelled against them. 5. The Union of India has also challenged the acquittal of appellant - Surendrapal and has preferred S.B. Criminal Appeal No.58/2009 against the acquittal. 6. Since in all these appeals common impugned judgment has been assailed, therefore, all appeals shall be decided together. 7. Succinctly stated the facts of the case are that one Vijay Singh Meena (PW-3) deposed in the Court that on 10.12.2005 while he was posted as Superintendent, Central Narcotics Bureau, Kota, he received a secret written information from the Railway Protection Force, Kota stating therein that in the 'Swaran Mandir Male" (2903 Down) Train, three suspected persons were carrying narcotics substances and in case the search is carried out, such persons can be apprehended. Upon this, Vijay Singh Meena (PW-3) constituted a team, which included Anil Kumar, Inspector (PW-1), Ramchandra Shah, Inspector (PW-7), in all, nine officials of the Narcotics Bureau and the Railways officials were deployed. Anil Kumar (PW-1) also joined Bharat Singh and Prabhu Singh as independent witnesses. It is further stated that when the train arrived at 12:15 P.M. at Platform No.1 of Kota Railway Station from general coach bearing No.952550, three suspected persons, namely (i) Radhulal @ Radheyshyam, (ii) Kamlesh Sahu and (iii) Revati Prasad were apprehended. Radhulal @ Radheyshyam was carrying one bag of army colour. The sum and substance of the prosecution case is that after necessary procedure, an offer was made to get them searched either from a Magistrate or from a Gazetted Officer by availing right vested in them under Section 50 of the Act. The accused gave written consent to get them searched from the Investigating Officer and offered themselves for the searched to be carried. 8. As per prosecution case, from the search carried out from Radhulal @ Radheyshyam total 5.300 kilograms of opium was recovered each containing in two packets, one weighing 2.500 kilo grams and another weighing 2.800 kilo grams. Necessary samples were drawn. The State Forensic Science Laboratory had opined after examination of the samples of contraband they were found to be of opium. 9. Mr. Rajesh Choudhary, the learned counsel appearing for the accused-appellants, Radhulal @ Radheyshyam and Revati Prasad, as well as, Mr. A.S. Narang, the learned counsel appearing for the accused-appellant, Kamlesh Sahu, at the outset, has submitted that since all these appellants have undergone nine years and seven-months sentence, they shall only pray to this Court that considering the agony and pain suffered by the appellants of a protracted trial the sentence awarded to the accused-appellants may be reduced to the minimum sentence of ten-years prescribed under the Act. 10. Mr. B.S. Chhaba, the learned counsel appearing for the Union of India, has submitted that so long the conviction of the appellants is maintained, he will not join serious issue regarding reduction of the sentence. 11. I find merit in the submissions advanced by the learned counsel appearing for the accused-appellants, namely Radhulal @ Radheyshyam, Revati Prasad and Kamlesh Sahu. 12. In the present case, the appellants are not previous convict and they are not involved in any other case. 11. I find merit in the submissions advanced by the learned counsel appearing for the accused-appellants, namely Radhulal @ Radheyshyam, Revati Prasad and Kamlesh Sahu. 12. In the present case, the appellants are not previous convict and they are not involved in any other case. Furthermore, considering the fact that they are in custody from last more than nine-years and seven-months and have suffered agony and pain of a protracted trial, this Court is of the view that the ends of justice will be fully met, in case the sentence of twelve-years, qua these appellants is reduced to ten-years rigorous imprisonment. However, the sentence of fine and default clause, qua alleged offence is maintained. 13. The learned counsel appearing for the accused appellants has relied upon the case of Shantilal v. State of M.P. reported as (2007) 11 S.C.C. 243 , wherein it was held as under :- "39. We are mindful and conscious that the present case is under the NDPS Act. Section 18 quoted above provides penalty for certain offences in relation to opium poppy and opium. Minimum fine contemplated by the said provision is rupees one lakh [fine which shall not be less than one lakh rupees]. It is also true that the appellant has been ordered to undergo substantive sentence of rigorous imprisonment for ten years which is minimum. It is equally true that maximum sentence imposable on the appellant is twenty years. The learned counsel for the State again is right in submitting that clause (b) of subsection (1) of Section 30, CrPC authorizes the Court to award imprisonment in default of payment of fine up to one-fourth term of imprisonment which the Court is competent to inflict as punishment for the offence. But considering the circumstances placed before us on behalf of the appellant-accused that he is very poor; he is merely a carrier; he has to maintain his family; it was his first offence; because of his poverty, he could not pay the heavy amount of fine (rupees one lakh) and if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him, but also to his family members who are innocent. We are, therefore, of the view that though an amount of payment of fine of rupees one lakh which is minimum as specified in Section 18 of the Act cannot be reduced in view of the legislative mandate, ends of justice would be met if we retain that part of the direction, but order that in default of payment of fine of rupees one lakh, the appellant shall undergo rigorous imprisonment for six months instead of three years as ordered by the trial court and confirmed by the High Court." 14. It was held by Hon'ble the Apex Court in Shanti Lal's case (supra) that where the amount of fine is very heavy, the Court has to consider various factors; financial status i.e. capacity of the accused to pay fine, period of substantive sentence awarded and antecedents of the accused. None of these facts has been considered by the trial Court in the order of sentence. 15. Thus, we reduce the sentence of twelve-years awarded by the trial Court to ten-years. Furthermore, this Court is of view that sentence of three-years awarded in default of payment of fine of Rs.One Lakh is excessive. Hence, sentence of three-years in default of payment of fine is reduced to six months. With above modification in sentence, the appeals preferred by appellants, namely Kamlesh Sahu, Revati Prasad and Radhulal @ Radheyshyam are dismissed. 16. So far as appellant, Kalu Singh is concerned, it is an admitted fact that the prosecution to secure his conviction under Section 8/18 read with Section 8/29 of the Act has relied upon a confession made by three accused under Section 67 of the Act before the official of the Narcotics Bureau. 17. Mr. A.S. Narang, the learned counsel appearing for the accused-appellants, has raised two submissions :- (1) THAT the confession made before official of Narcotics Bureau is inadmissible in evidence, in view of the judgment rendered by the Hon'ble Apex Court in the case of Noor Aga v. State of Punjab and Another, reported in A.I.R. 2009 S.C. (Supp) 852. (b) THAT the confession made by co-accused is not admissible, qua appellant Kalu Singh. 18. Mr. B.S. Chhaba, the learned counsel appearing for the Union of India, has contended that it has also come in the evidence that on 09th and 10th of December, 2005, Kalu Singh from his mobile cell bearing No.07425204782 had talked with Kamlesh Sahu. (b) THAT the confession made by co-accused is not admissible, qua appellant Kalu Singh. 18. Mr. B.S. Chhaba, the learned counsel appearing for the Union of India, has contended that it has also come in the evidence that on 09th and 10th of December, 2005, Kalu Singh from his mobile cell bearing No.07425204782 had talked with Kamlesh Sahu. Mere exchange of telephonic call in itself is not sufficient to infer conspiracy. Learned counsel for appellant - Kalu Singh further contended that it has also not been proved that even though the telephone bill was in the name of the wife of the accused as to who was talking on the said phone. 19. In Noor Aga's case (supra) the Hon'ble Apex Court while appreciating evidentiary value of confession made before the Custom Official had observed as under :- "Only when these things are established, a statement made by an accused would become relevant in a prosecution under the Act. Only then, it can be used for the purpose of proving the truth of the facts contained therein. It deals with another category of case which provides for a further clarification. Clause (a) of sub-section (1) of Section 138B deals with one type of persons and clause (b) deals with another. The Legislature might have in mind its experience that sometimes witnesses do not support the prosecution case as for example panch witnesses and only in such an event an additional opportunity is afforded to the prosecution to criticize the said witness and to invite a finding from the court not to rely on the assurance of the court on the basis of the statement recorded by the Customs Department and for that purpose it is envisaged that a person may be such whose statement was recorded but while he was examined before the court, it arrived at an opinion that is statement should be admitted in evidence in the interest of justice which was evidently to make that situation and to confirm the witness who is the author of such statement but does not support the prosecution although he made a statement in terms of Section 108 of the Customs Act. We are not concerned with such category of witnesses. Confessional statement of an accused, therefore, cannot be made use of in any manner under Section 138B of the Customs Act. We are not concerned with such category of witnesses. Confessional statement of an accused, therefore, cannot be made use of in any manner under Section 138B of the Customs Act. Even otherwise such an evidence is considered to be of weak nature. {See Gopal Govind Chogale v. Assistant Collector of Central Excise and another, [1985 (2) Bom CR 499 Paras 12-14]}" 20. In support of the above arguments, Mr. Ali Mohd. Khan, the learned counsel appearing for the accused-appellant - Kalu Singh, has further relied upon the case of Abdul Rashid v. State of Bihar, reported in AIR 2001 SC 2422 , to contend that the statement made before the Excise Official where recovery of narcotic was effected is held to be inadmissible in evidence. 21. Thus, it is a settled legal position that confessional statement made to the Custom Officer is inadmissible, qua case pertaining to the Narcotic Drugs and Psychotropic Substances Act, 1985 and, therefore, is not to be taken into consideration. Furthermore, even if it is assumed that the confessional statement is admissible in evidence, then also confession of co-accused cannot form sole basis to sustain conviction of the appellant Kalu Singh. 22. Mr. B.S. Chhaba, the learned counsel appearing for the Union of India, could not point out any other evidence, except the confessional statement made by co-accused before the official of the Narcotic Bureau to incarcerate appellant, Kalu Singh. 23. Since the confessional statement made is inadmissible in evidence and is also hit by Section 25 of the Indian Evidence Act in view of judgment rendered in the case of Noor Aga (supra), this Court is of the view that conviction of Kalu Singh cannot be sustained. 24. Consequently, the appeal preferred by Kalu Singh (S.B. Criminal Appeal No.637/2008) is, accepted. His conviction and sentence is set aside and he is acquitted of the charges. 25. However, we find no merit, so far as appeals of the appellants, Radhulal @ Radheyshyam, Kamlesh Sahu and Revati Prasad are concerned, and the same are, hereby, dismissed, while affirming their conviction pronounced, as stated earlier sentence awarded to them for the alleged offence by the trial Court is reduced from twelve-years to ten-years. Sentence of fine of Rs.One Lakh is maintained. However, default clause is modified instead of undergoing sentence of three-years, for non-payment of fine, the appellants shall undergo sentence of six-months. 26. Sentence of fine of Rs.One Lakh is maintained. However, default clause is modified instead of undergoing sentence of three-years, for non-payment of fine, the appellants shall undergo sentence of six-months. 26. The appeal preferred by the Union of India against acquittal of Surendrapal for reasons stated for acquittal of Kalu Singh is dismissed. Appeal No. 637 of 2008 Allowed/All other Appeals Dismissed.