JUDGMENT 1. The Criminal Appeal has been filed by the appellant to set aside the acquittal of the respondents in the judgment dated 09.06.2004 made in C.C. No. 311 of 2004 passed by the Special Court for NDPS and EC Act Cases, Pudukottai and convict and sentence the respondents in accordance with law. 2. The case of the prosecution is that on 07.11.2001, at about 7:00 p.m. PW-4, Gunabalan, who was working as Superintendent of Narcotics Control Bureau, Chennai, received a call from the Assistant Director, M.J. Punnen and after due discussion about the information available, at about 9.00 p.m. PW-4 along with a team of officials proceeded towards Hosur by office vehicle bearing Reg. No. TN-09-C-3113. 3. On 08.11.2001 at 08.00 a.m. PW-4 along with officials reached Hosur and made surveillance on Bangalore-Hosur Highway, near Hotel Rich Saravana Bhavan and on the same day at about 3:15 p.m. a White Tata Sumo vehicle bearing Reg. No. TN-45-M-9898 came from Bangalore and proceeded towards Hosur. PW-4 and their officials intercepted the vehicle and enquired driver of the vehicle. Apart from driver, three other persons namely N. Jeeva @ Indiran, K.Gurubalan, who are respondents herein and Saravanan, were found sitting in the car. 4. In the meantime, one Jeyaprakash and Kumar, (PW-7 and PW-8) who were in the two wheeler workshop, were asked to stand as independent witnesses and they had also agreed for the same. PW-1 informed all the four persons that they have the right to demand for choosing the mode of search either before the Judicial Magistrate or a Gazetted Officer, nearby. But all the four persons told that it was not necessary to take them to a Magistrate or a Gazetted Officer and instead, PW-4 along with the team could make personal search. After giving notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter, referred to as "the NDPS ACT") explaining about their right to search the vehicle. 5. The team of officials made a search in the vehicle and found that the respondents were in possession of 16 packets of contraband weighing 15.500 kgs and the police team seized the materials from the respondents in the presence of two independent witnesses-PW-7 & PW-8. PW-1 cut opened the packets and tested the contraband with Field Test Kid and it answered positive for Heroin. On further search, a sum of Rs. PW-1 cut opened the packets and tested the contraband with Field Test Kid and it answered positive for Heroin. On further search, a sum of Rs. 50,000/- was recovered from the first Accursed viz. Jeeva @ Indiran and a sum of Rs. 7,500/- from the second respondent viz. Gurubalan. Spot Mahazars were drawn in the presence of the independent witnesses. 6. The seized contrabands were marked as P1 to P16, packet material as P17 and the currency were marked as P.18 and P19. The vehicle was also seized under the NDPS Act and exhibited as M.O.52. The seized packets and samples were sealed with NCB Seal No. 12 and the signatures of the Seizure Officer, accused 1 and 2 and the two other persons in the vehicle, were affixed in the samples and in the mahazars. 7. After investigation, charge sheet was filed against the respondents/ A1 and A2 before the Special Court and the case was taken on file in C.C. No. 311 of 2004. During trial, in order to prove the case, prosecution had examined 10 witnesses viz. PW-1 to PW-10 and marked 62 documents Ex.P1 to P62 and 52 material objects M.O.1 to M.O.52. Having considered all the above materials, the Special Court for NDPS Act, had acquitted the respondents by judgment dated 09.06.2004. As against the said Judgment of acquittal, the Intelligence Officer, Narcotics Control Bureau, has preferred the present criminal appeal before this Court. 8. None appeared on behalf of the first respondent/A1. Learned Counsel appearing for the second respondent/A2 would submit that in this case, statutory provisions had not been duly complied with and mere issuance of notice under Section 50 of the NDPS Act is not sufficient. The officials of the appellant should have informed the right of the accused clearly, whereas in this case it has not been done and they have simply instructed the witnesses, who had also turned hostile. As far as the second respondent/A2 is concerned, the prosecution had relied on only the confession statements recorded from the first respondent/A1 and no conviction should be recorded only based on the confession statements made by the accused. 9. The confession statement is not admissible evidence in law. The prosecution had not recorded the confession statement in the manner known to law. Further, the confession made before the police officials, is not admissible under Evidence Act. 9. The confession statement is not admissible evidence in law. The prosecution had not recorded the confession statement in the manner known to law. Further, the confession made before the police officials, is not admissible under Evidence Act. Therefore, based on confession statement, the second respondent/A2 should not be convicted. In this regard, the Hon'ble Supreme Court has also referred the matter to the Larger Bench and now it is under consideration of the Larger Bench of Hon'ble Supreme Court and therefore conviction should not be given based on the sole ground of confession statement. The question, whether the statement recorded under Section 67 of NDPS Act, is admissible evidence for conviction, has been referred to the Larger Bench of the Hon'ble Supreme Court. Therefore, this case, as against the second respondent/A2, shall be deferred, till the issue is decided by the Larger Bench of the Hon'ble Supreme Court as the Court cannot convict the accused only based on the confession statement. 10. The learned Special Public Prosecutor appearing for the appellant would submit that the prosecution has not solely relied upon the confession statement and they have also relied on other materials to prove their case. Therefore, the contention raised by the learned counsel for the second respondent/A2 that no one should be punished only based on the confession statement, is not made applicable to the present case. PW-10 had received information from reliable source, which has been recorded under Section 42 of the NDPS Act and marked as Ex.P32. Therefore, PW-3, after discussing with his superior officers, had proceeded towards Hosur-Bangalore Highway. Near Hotel Rich Saravana Bhavan, the police officials conducted vehicle search and intercepted the car bearing registration No. TN-45-M-9898. They had interrogated the accused and they had duly complied with the provisions of Section 50 of the NDPS Act and intimated the right of the accused as contemplated under Section 50 of the Act, which states that right provided to the respondents for choosing the mode of search, either in the presence of Judicial Magistrate or a Gazetted Officer, nearby, for which, the respondents 1 and 2 replied that there is no necessity for conducting search, either in the presence of the Judicial Magistrate or a Gazetted Officer and PW-3 along with the team itself could conduct the search. 11. 11. After conducting search on the respondents/accused and on the vehicle, in the presence of the two independent witnesses, namely, PW-7 & PW-8, the police team found 16 packets of contraband totally weighing 15.500 kgs. They had taken sample packets for chemical analysis and recovered the contraband through Mahazar and arrested the accused. Thereafter, the respondents/accused were brought to the police station and subsequently, a case was registered against them for the offence under Section 8(c) r/w 21, 8(c) r/w 25, 8(c) r/w 28 and 8(c) r/w 29 of the NDPS Act against the first respondent/A1 and Section 8(c) r/w 21 and 8(c) r/w 29 of the NDPS Act against the second respondent/A2. 12. In this case, PW-1 is the Intelligence Officer and he was authorised to conduct search, recovery and also arrest. PW-1 along with his team proceeded to Hosur from Chennai. On the next day morning, they had reached Bangalore-Hosur Highway and at about 8.00 a.m. they reached Hosur. They intercepted the vehicle bearing Registration No. TN-43-M-9898, the respondents 1 and 2/A1 & A2 along with two other persons, were siting in the car and they were not aware of the contraband in the vehicle. The first respondent is the person, from Sri Lanka, had smuggled contraband from Bangalore and the second respondent, knowing fully well that the first respondent was smuggling contraband and in order to aid him, he also conspired with him and therefore the second respondent/A2 had the knowledge and he was conscious about the contraband in the vehicle. After completion of statutory provisions of the NDPS Act, they made search, recovery and since the first and second respondents were in possession of 15.500 Kgs of Heron, without any valid license or any permission from the competent authority, they were arrested by the appellant. 13. PW-2, Inspector of Police, had also accompanied with the team and he had spoken about the involvement of the accused 1 and 2 and the role played by the team of the intelligence officers. Even though, the independent witnesses have admitted their signatures found in the mahazar, subsequently turned hostile for the reasons best known to them and not supported the case of the prosecution. PW-1 himself is a competent person, as per the NDPS Act, since he is not a police official. Even though, the independent witnesses have admitted their signatures found in the mahazar, subsequently turned hostile for the reasons best known to them and not supported the case of the prosecution. PW-1 himself is a competent person, as per the NDPS Act, since he is not a police official. Therefore, Section 25 of the Indian Evidence Act is not made applicable to the case filed under NDPS Act. Therefore, recovery also proved by the prosecution beyond reasonable doubt against the accused 1 and 2, as they were aware and in conscious possession and also they had smuggled the contraband in the vehicle, whereas, the Special Court failed to consider these aspects and erroneously acquitted the respondents/accused, which warrants serious interference of this Court. 14. Heard Mr. C. Arul Vadivel alias Sekar, learned Special Public Prosecutor appearing for the appellant and Mr. G. Bhagavath Singh, learned counsel appearing for the second respondent and also perused the original records carefully. 15. The case of the prosecution is that on 07.11.2001, at about 7:00 p.m. PW-4 Gunabalan, who was working as Superintendent of Narcotics Control Bureau, Chennai, had received a call from the Assistant Director M.J. Punnen and after due discussion about the information available, at about 9.00 p.m. PW-4 along with a team of officials PW-1 to PW-3 and PW-9 & PW-10, proceeded towards Hosur, by office vehicle bearing Reg. No. TN-09-C-3113. On 08.11.2001 at 08.00 a.m. PW-4 along with the team, reached Hosur and made surveillance on the Bangalore - Hosur Highway, near Hotel Rich Saravana Bhavan and on the same day at about 3:15 p.m. a White Tata Sumo vehicle bearing Reg. No. TN-45-M-9898 came from Bangalore and proceeded towards Hosur. PW-4 and their officials intercepted the vehicle and enquired the driver. Apart from driver viz. Kannan, three other persons, namely, N. Jeeva @ Indiran, K. Gurubalan/respondents herein and one Saravanan, were found sitting in the car. PW-1 brought one Jeyaprakash and Kumar (PW-7 and PW-8), who were in the two wheeler workshop, which was situated near by the place of occurrence and they were asked to stand as independent witnesses and they had also agreed for the same. The team of officials had informed all the four persons that they had the right to demand for choosing the mode of search either before the Judicial Magistrate or a Gazetted Officer, nearby. The team of officials had informed all the four persons that they had the right to demand for choosing the mode of search either before the Judicial Magistrate or a Gazetted Officer, nearby. But all the four persons told that it is not necessary to take them to a Magistrate or a Gazetted Officer and instead, PW-4 along with his team could make personal search. After giving due notice under Section 50 of the NDPS Act, explaining about their right, PW-4 and the team made a search in the vehicle and found that the respondents were in possession of 16 packets of contraband weighing 15.500 kgs and the team seized the materials from the respondents, in the presence of two independent witnesses-PW-7 & PW-8. PW-1 cut opened the packets and tested the contraband with Field Test Kid and it answered positive for Heroin and further a sum of Rs. 50,000/- was recovered from the first Accursed viz. Jeeva @ Indiran and a sum of Rs. 7,500/- from the second respondent viz., Gurubalan. Spot Mahazars were drawn in the presence of the independent witnesses. The seized contraband were marked as P1 to P16, packet material as P17 and the currency were marked as P.18 and P19. The vehicle was also seized under the NDPS Act. The seized packets and samples were sealed with NCB Seal No. 12 and the signatures of the Seizur Officer, accused 1 and 2, the two other persons in the vehicle and the independent witnesses, were obtained in the samples and in the mahazar. After investigating the matter, charge sheet was laid before the Special Court. After taking cognizance of the case in C.C. No. 311 of 2004, charges had been framed against the respondents/A1 and A2. Before the Special Court, prosecution had examined 10 witnesses viz. PW-1 to PW-10 and marked 62 documents Ex.P1 to P62 and 52 material objects M.O.1 to M.O.52. 16. PW-5 Chemical Analyst, has spoken about the examination of the contraband and also filed his report, which has been marked as Ex.P.18. The said report reveals that the alleged contraband is diacetyl morphine (Heroin). Evidences of PW-1 to PW-4 and PW-9 & PW-10, show that there is no violation of the statutory provisions. 17. According to the learned counsel for the second respondent, confession statement recorded under Section 67 of the NDPS Act, is not admissible in evidence. The said report reveals that the alleged contraband is diacetyl morphine (Heroin). Evidences of PW-1 to PW-4 and PW-9 & PW-10, show that there is no violation of the statutory provisions. 17. According to the learned counsel for the second respondent, confession statement recorded under Section 67 of the NDPS Act, is not admissible in evidence. Any confession, made before the police officer, is not an admissible evidence. In this case, prosecution had charged the second respondent/A2, solely based on the confession statement and it is failed to prove charges against the second respondent/A2 with cogent evidence, besides confession statement. Therefore, prosecution has failed to prove recovery made from the second respondent and also failed to prove the fact that the second respondent was in full knowledge and conscious about the possession of the contraband in the car, bearing Reg. No. TN-45-M-9898. Further Ex.P10, the alleged statement, said to have recorded from the second respondent/A2 is highly doubtful. The learned Special Judge has elaborately gone into these aspects and given a finding that the prosecution had not proved the case beyond reasonable doubt and extended the benefits of doubt in favour of the respondent/accused and therefore it does not warrant any interference. 18. Per contra, the learned Special Public Prosecutor appearing for the appellant contended that PW-1 is not a police officer under NDPS Act and the statement recorded by PW-3 under Section 67 of the NDPS Act, is not par with the confession statement recorded under Sections 25 to 27 of the Evidence Act, which is not admissible in evidence. 19. It is settled law that the Intelligence Officers, who are functioning under the NDPS Act, are not Police Officers. But, now the issue pending before the Hon'ble Supreme Court is that whether the statement recorded under Section 67 of the NDPS Act, is admissible in evidence or not and whether conviction can be recorded, solely on the basis of statement recorded under Section 67 of the NDPS Act. According to the learned counsel for the second respondent, since the matter has been referred to the Larger Bench of the Hon'ble Supreme Court and in the present case on hand, prosecution has relied only on the confession statement recorded under Section 67 of the NDPS Act, the Court cannot give a finding, based on the statement recorded under Section 67 of the NDPS Act. Hence, the Court has to wait till the disposal of the matter by the Hon'ble Supreme Court, whereas, the learned Special Public Prosecutor contended that in this case, a perusal of the records and the evidences of PW-1 to PW-4, PW-9, PW-10, the Chemical Analyst PW-5 and independent witnesses PW-7 and PW-8, would clearly reveal that prosecution has proved its case, beyond reasonable doubt and prosecution had not relied only on the confession statement recorded under Section 67 of the NDPS Act. 20. Even though PW-7 and PW-8 had not fully supported the case of the prosecution, regarding the recovery and preparation of mahazars, but they had admitted their signatures found in the observation mahazar and recovery mahazar, which shows that they were present at the time of recovery of contraband. Further, if PW-4 and the police team had not gone to Hosur, they could not have obtained signatures of PW-7 and PW-8 in the Mahazars. PW-7 and PW-8, had admitted that they are the native of Hosur and they had deposed that near the place of occurrence i.e. the said hotel, they are running a two wheeler work shop and on 08.11.2001 they were present in the shop. PW-7 & PW-8 had not stated that they came to Chennai and put their signatures in the Mahazar at the Office of PW3, they had only stated that the Police Officer came to their Workshop and called them to the place of occurrence, to stand as witness for recovery. 21. PW-7 and PW-8 have admitted that the police asked them to stand as witness and admitted their signatures found in Ex.P4 and also in the samples of contraband. Therefore, even though they had agreed to stand as witness and signed on the Mahazar and statements, they had not supported the rest of the case of the prosecution. They are native of Hosur and also running a two wheeler shop owned by them, which is situated near by the place of occurrence and stated that the police came to their place and told that they seized contrabands and asked them to put their signatures in the Mahazar, as witness. PW-7 has also admitted that the police read over the contents of the Mahazar, before singing on the same. PW-7 has also admitted that the police read over the contents of the Mahazar, before singing on the same. If the police had not gone to Hosur and prepared the mahazar at the place of occurrence itself, it is not possible for them to obtain signatures of the independent witnesses PW-7 & PW-8, who are native of Hosur, since it is not the evidence of PW-7 and PW-8. that the police had taken them to Chennai or elsewhere to obtain their signatures. Therefore, though they stood as witness, subsequently not supported the case of the prosecution for one reason or other. PW-7 and PW-8 had admitted their signatures found in the Mahazar, statements and sample packets and hence the fact that PW-3 went with his team to Hosur and caught the accused, has been very clearly proved. PW-10, has spoken about the occurrence and also produced the contraband before the Superior Officer, who has recorded the information received and also written as dictated by the informant. Therefore, from the evidence of PW-1 to PW-5, and PW-7 to PW-10, prosecution has proved the case beyond reasonable doubt, not only relying on the statement recorded under Section 67 of the NDPS Act, but to prove their case, they have also produced other documents, which are sufficient to convict the respondents/accused. 22. It is the contention of the learned counsel for the second respondent/A2 that compliance of Mandatory provisions of Section 42 and Section 50 of the NDPS Act have not been proved and statements recorded by the police officials is not admissible in evidence. On a perusal of evidence of PW-10, it is clearly reveals that Section 42 has been proved through Ex.P32 and compliance of Section 50 of the NDPS Act has been clearly proved from the evidence of witnesses of prosecution PW-1 to PW-4 and PW-9 & PW-10. On a perusal of evidence of prosecution witnesses PW-1 to PW-4 and PW-9 & PW-10, it is clearly reveal that PW-1/Karthikeyan had explained the right of search under Section 50 of the NDPS Act, which has been corroborated by other team of officials PW-2 to P.W4 and PW-9 & PW-10. Therefore, none of the mandatory provisions of the NDPS Act had been violated by the appellant, as stated by the learned counsel for the second respondent/A2. 23. Therefore, none of the mandatory provisions of the NDPS Act had been violated by the appellant, as stated by the learned counsel for the second respondent/A2. 23. Further PW-1, in his evidence has stated that the vehicle, owned by the first respondent/A1, has been specially designed to hide the contraband for the purpose of smuggling and he had taken 16 packets from there and handed over to PW-1. Even though, independent witnesses, PW-7 and PW-8, had stood as witness, subsequently not supported the case of the prosecution, they had admitted the signatures in Mahazar, statements, samples of contraband. PW-7, in his evidence had clearly stated that he and PW-8 had signed the Mahazar at Hosur only and not anywhere else. The first respondent/A1, before the trial Court, during questioning under Section 313 of Cr.P.C. had not specifically stated anything about that he had not involved in the offence and the second respondent/A2, when he was produced before the Magistrate, has not made any complaint against the team of the intelligence officers, before the Magistrate that the officials obtained his signatures in the blank papers and seized his driving license forcibly and therefore, it clearly shows the defence taken by the second respondent/A2 is wholly after thought, which is not legally tenable. Further, PW-9 & 10 are only a Central Exercise Officers and not a police officials, and therefore their evidence cannot be thrown out. PW-4, who was head of the team, had proved the manner in which seizure, recovery of contraband and arrest, have been done and PW-10 had spoken about the compliance of Mandatory provisions under Section 42 of the NDPS Act and PW-1 & PW-2 had spoken about the recovery. Further more, there was no contradictions found in the evidences of witnesses of prosecution. On a perusal of entire evidences, besides confession statement recorded under Section 67 of the NDPS Act, the prosecution had proved its case beyond reasonable doubt. Further in this Case, Ex.P7 confession statement of the first respondent/A1 recorded under Section 67 of the NDPS Act, had been written by the first respondent/A1 himself. He has not stated anywhere, either before the Magistrate/Special Judge, while producing him before them, at the time of remand or during 313 proceedings, that PW-2 forcibly obtained his signature in Ex.P7. 24. Further in this Case, Ex.P7 confession statement of the first respondent/A1 recorded under Section 67 of the NDPS Act, had been written by the first respondent/A1 himself. He has not stated anywhere, either before the Magistrate/Special Judge, while producing him before them, at the time of remand or during 313 proceedings, that PW-2 forcibly obtained his signature in Ex.P7. 24. This Court found the first respondent/A1 guilty of offence punishable under Section 8(c) r/w 25 and 8 (c) r/w 29 of the NDPS Act and the second respondent/A2 found guilty of offence under Section 8 (c) r/w 29 of the NDPS Act, since they were in possession of 15.500 Kgs of Heroin, which is commercial quantity, without any valid license or permission from the competent authority. Therefore the respondents/accused are liable to be convicted. 25. The learned counsel for the second respondent only present and the first respondent is not present, even though communication for hearing on 28.09.2018 has been sent, either the first respondent/A1 or the learned counsel for the first respondent/A1 appeared before the Court. The learned counsel for the second respondent only appeared and argued the matter extensively. Since this Court has found the first respondent/A1 guilty of offences punishable under Sections 8(C) r/w 25 and 8(c) r/w 29 of the NDPS Act, and second respondent/A2 found guilty of offence punishable under Section 8(c) r/w 29 of the NDPS Act, and only the second respondent is present, the appellant is directed to secure the first respondent/A1 and produce before this Court on 11.10.2018 through video conference for question of sentence. 26. When the matter came up for hearing on 11.10.2018 through video conference, the learned Government Advocate (Criminal Side) submitted that they were not able to secure the first respondent/first accused-A.1 and could not execute the Non-Bailable Warrant. Hence, they returned the Non-Bailable Warrant. Therefore, this Court directed the appellant to initiate proclamation proceedings against the first respondent/first accused- A.1 and directed the appellant to take substituted service on or before 25.10.2018 and directed this matter to be posted in the next special sitting. Accordingly, the matter was posted today i.e. 27.10.2018. 27. Today, i.e. on 27.10.2018, when the matter is taken up for hearing, the learned counsel appearing for the appellant produced the proof of paper publication effected in the "Dhina Thandi" Tamil daily Trichy Edition, dated 25.10.2018. 28. Accordingly, the matter was posted today i.e. 27.10.2018. 27. Today, i.e. on 27.10.2018, when the matter is taken up for hearing, the learned counsel appearing for the appellant produced the proof of paper publication effected in the "Dhina Thandi" Tamil daily Trichy Edition, dated 25.10.2018. 28. Despite paper publication, the first respondent/first accused-A.1 is not present today. Therefore, he is declared as proclaimed offender. 29. The second respondent/second accused-A.2 is present before this Court. Regarding the question of sentence, as such the second respondent/second accused-A.2 stated that he has not involved in the offence in this case and he is innocent and has got wife and children. 30. The learned counsel appearing for the second respondent/second accused-A.2 would submit that under Articles 132 and 134(A) of the Constitution of India, an appeal shall lie to the Supreme Court in this regard. 31. This Court had already held that the questions involved before the Honourable Supreme Court is that whether the accused can be convicted on the sole ground that the statement recorded under Section 67 of the NDPS Act is admissible evidence for conviction has been referred to the Larger Bench of the Supreme Court. 32. This Court had already held that this Court not only relied on the statement recorded under Section 67 of the NDPS Act, but there are also other enough materials available to convict the respondents/accused. 33. Accordingly, the first respondent/first accused-A.1 is convicted for the offences under Sections 8(c) r/w 25 and 8(c) r/w 29 of the NDPS Act and sentenced to undergo imprisonment for a minimum period of 10 years Rigorous Imprisonment for the offence under Section 8(c) r/w 25 of the NDPS Act with a fine of Rs. 1,00,000/- and in default to undergo six months Rigorous Imprisonment and also sentenced to undergo imprisonment for another period of 10 years Rigorous Imprisonment for the offence under Section 8(c) r/w 29 of the NDPS Act with a fine of Rs. 1,00,000/- and in default to undergo six months Rigorous Imprisonment. 34. The second respondent/second accused-A.2 is convicted for the offence under Section 8(c) r/w 29 of the NDPS Act and sentenced to undergo 10 years Rigorous imprisonment with a fine of Rs. 1,00,000/- and in default to undergo six months Rigorous Imprisonment. 35. The sentences are ordered to run concurrently. 1,00,000/- and in default to undergo six months Rigorous Imprisonment. 34. The second respondent/second accused-A.2 is convicted for the offence under Section 8(c) r/w 29 of the NDPS Act and sentenced to undergo 10 years Rigorous imprisonment with a fine of Rs. 1,00,000/- and in default to undergo six months Rigorous Imprisonment. 35. The sentences are ordered to run concurrently. The trial Court is directed to take appropriate steps so as to immure the first respondent/first accused to serve out the period of sentence imposed by this Court. The appellant is directed to secure the second respondent/second accused-A.2 to serve out the period of sentence imposed by this Court. The period of imprisonment undergone by the respondents/accused, if any, is set off under Section 482 Cr.P.C. 36. With the above directions and observations, this Criminal Appeal is partly allowed.