JUDGMENT : G. JAYACHANDRAN, J. 1. The appellants are the first and second accused in C.C. No. 9/2011 on the file of the learned II Additional Special Court under NDPS Act, Chennai-104. The appellants were found guilty of offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) 2. The appellants were found in possession of 976 grams of heroin filled in 95 capsules and kept concealed in the fingers of silicon hand gloves. Based on the information received by K.R. Srikanth, Intelligence Officer, Narcotic Control Bureau (NCB), Chennai, S. Gunabalan, the Superintendent of NCB, Chennai ordered Thayumanavan and Saravanaraj, Intelligence Officers, NCB, Chennai, to take necessary action, and also accompanied them to Koyambedu Omni Bus Terminus, Chennai. They kept surveillance at Koyambedu Bus Stop on 02.11.2010 from 5.am. At about 6.00 am, Bus from Sathur operated by TVLS reached Koyambedu Bus stand. After confirming with the Drivers of the Bus, that the persons mentioned in the information are travelling in the bus, the team interrogated Selvam and Packiyanathan who were travelling in seat Nos. 19 & 20. After introducing themselves and conveying the information received about them, the officers conveyed to them about their intention to conduct search. A-1 Pakiyanathan took out a plastic bag containing about 1 kilogram of heroin packed in 95 capsules and handed over to Selvam, who in turn, handed over the same to Thayumanavan, Intelligence Officer. 3. The accused persons and the contraband handed over by them were taken to the office of TVLS Travels. The content of 95 capsules packed in fingers of hand gloves were cut open. Brown colour powder stuff in it were taken out mixed thoroughly and thereafter, tested in the field test kit. The test answered positive for heroin. The contraband therefore, on a reasonable belief, that it is heroin was seized under mahazar. Two five grams samples were drawn and marked as S.1 and S.2. The remaining powder weighing 966 grams were packed separately and marked as Ex.P.1. 4. During the personal search, the accused persons were intimated about their right under Section 50 of the NDPS Act, to be searched before the learned Judicial Magistrate or the Gazetted Officer. The accused persons declined to accept the said option. The said intimation was reduced into writing. The accused persons were searched in the presence of S. Gunabalan, the Superintendent, NCB, Chennai. The accused persons declined to accept the said option. The said intimation was reduced into writing. The accused persons were searched in the presence of S. Gunabalan, the Superintendent, NCB, Chennai. From Packiyanathan (A.1), Indian currency Rs. 20,500/- was recovered and the same was inventorised. From the personal search of Selvam (A.2), Rs. 550/- and two cell phones were recovered and same was inventorised. 5. The accused persons were summoned under Section 67 of the NDPS Act, to appear before the NCB Office at Besant Nagar, Chennai. Accordingly, they both accompanied the Intelligence Officers and gave their respective statements. Through the statements, the respondent came to know that pursuant to the conspiracy, hatched in the Puzhal Prison by Bhavan @ Micheal Augastin Dixon (A.3) Selvam (A.2) had gone to Rajasthan procured 1 k.g. heroin from Prathapkar through Ravi @ Kamalsingh. Selvam (A.2) clandestinely transported from Rajasthan to Sathur on 31.10.2010. As per the instruction of Bhavan @ Micheal Augastin Dixon (A.3), Packiyanathan (A.1) had gone to Sathur packed the heroin in 95 capsules, concealed it and brought it to Chennai with intention to further transport it to Srilanka through Packiyanathan (A.1) 6. Pursuant to the information given by Selvam (A.2), his residence at Sathur was searched but, nothing incriminating could be recovered. Wife of Selvam (A.2) informed the Intelligence Officers who conducted the search that a bag given by Packiyanathan (A.1) to Selvam (A.2) was collected by someone, two days after her husband (A.2) left home. 7. Based on the information given by the accused, the call details of the phone number used by Packiyanathan (A.1) and Selvam (A.2) were collected. After obtaining permission from the trial Court, the accused were interrogated in the prison. However, they refused to cooperate. Therefore, the same was recorded and reported back to the Court. The contraband seized from the accused persons was sent for chemical analysis. The Central Revenue Laboratory, Custom house reported that the contraband contains diacetylmorphine. 8. Before the trial Court, a complaint was filed under Section 36A of NDPS Act by the Intelligence Officer, a public servant against Packiyanathan - A.1, Selvam - A2 and Bhavan @ Micheal Augastin Dixon (A.3) and Ravi @ Kamalsingh A.4 (absconding accused) The case against A.4 was split up. A.3 who was in prison was formally arrested and was produced before the Court under PT Warrant. A.3 who was in prison was formally arrested and was produced before the Court under PT Warrant. A.1 and A.2 were arrested on the date of seizure and faced trial as remand prisoners. 9. To prove the case, the prosecution has examined 7 witnesses (PWs. 1 to 7); marked 54 exhibits (Exs.P.1 to P.54) and 7 material objects (M.Os.1 to 7) were marked. 10. The trial Court, after considering the materials available on record, found A.1 guilty for offence of possession of commercial quantity of heroin; for offence to procure the Narcotic drugs; Attempt to export it out of India and for abetting the said crime, A.2 - Selvam was found guilty for possession of heroin; concealed the contraband; attempted to transport it out of India and abetment to commit the offence. 11. Bhavan @ Micheal Augastin Dixon (A.3) tried for offence of abetment was acquitted since, the prosecution not able to place the details about the alleged date of A.2 visiting A.3 in the Central Puzhal Prison. 12. The learned counsel appearing for the appellants would submit that the prosecution case right from receipt of the information to arrest and seizure is loaded with infirmities and improbabilities. The prosecution case that, on 01.11.2010 at about 21.00 hours K.R. Srikanth (PW-1) when he was in office received the information about illegal transport of heroin from Sattur to Chennai by the appellants and the same was reduced into writing by PW-1 and placed before Gunabalan, the Superintendent, NCB, Chennai (PW-5) at 21.30 hours are all doubtful. The late hour information received at NCB office is very unusual and not explained. The evidence of PWs. 2 and 5 that the Drivers of TVLS Travels were able to identify the passengers by name viz. Packiyanathan (A.1) and Selvam (A.2) is unbelievable. A.1 and A.2 were not informed about their right under Section 50 of the NDPS Act, properly. The violation of Section 50 of the NDPS Act, not considered by the trial Court. The statements of the appellants are not voluntary and true. They were forced to sign in the statements prepared as per the dictate of the Narcotic Control Bureau officers. The contraband was not kept in proper custody and not explained, 'where the contraband was kept from the date of seizure 02.11.2010 till it was received by the Special Court for NDPS Act on 09.11.2010. They were forced to sign in the statements prepared as per the dictate of the Narcotic Control Bureau officers. The contraband was not kept in proper custody and not explained, 'where the contraband was kept from the date of seizure 02.11.2010 till it was received by the Special Court for NDPS Act on 09.11.2010. The Analyst Report does not contain the purity of the contraband. Admittedly, the purity test not conducted in the laboratory. Under the NDPS Act, punishment is based on the quantity. The weight of the diacetylmorphine alone ought to be taken. The weight of entire bulk should not be considered. 13. The total weight of the contraband should not be taken to decide the weight of the heroin as per the judgment of the Hon'ble Supreme Court in E. Micheal Raj vs. Intelligence Officer, Narcotic....... (on 11.03.2008 in Appeal (Crl.) No. 1250 of 2005) Hence, the accused must have been charged only for in between quantity and not for the commercial quantity. Except the statements of the appellants recorded under Section 67 of the NDPS Act, no material evidence placed by the appellants to substantiate the charges. The prosecution has not proved that A.1 and A.2 met A.3 in the Central Prison, Puzhal, Chennai to conspire. They have not proved A.1 financed to purchase the contraband and A.2 allowed his house to conceal contraband and A.1 came to India from Srilanka to export heroin from out of India. 14. At the time of occurrence, A.3 was a remand prisoner. The case of the prosecution is that, A.1 met A.3 in Puzhal prison and conspired to illegally transport heroin to Srilanka. No document produced by the prosecution to prove that there was meeting between A.1 and A.3 in the Central Puzhal, Chennai prison. The trial Court has rightly acquitted A.3 for want of evidence. But, same analogy not drawn in favour of these two appellants. 15. Per contra, the learned Special Public Prosecutor appearing for NCB cases would submit that the Intelligence officers, NCB Chennai, work round the clock keeping surveillance and gathering intelligence. They work in odd hours in the office and gather information - Ex.P.1, given by informant, is natural and reliable. The information received by PW-1 has been seen and endorsed by PW-2 Thayumanavan and PW-3 Saravanaraj, Intelligence Officers. Therefore, no reason to disbelieve the receipt of information and subsequent seizure. 16. They work in odd hours in the office and gather information - Ex.P.1, given by informant, is natural and reliable. The information received by PW-1 has been seen and endorsed by PW-2 Thayumanavan and PW-3 Saravanaraj, Intelligence Officers. Therefore, no reason to disbelieve the receipt of information and subsequent seizure. 16. Regarding compliance of Section 50 of the NDPS Act, the learned Special Public Prosecutor would submit that at Koyambedu Omni Bus stand, on 02.11.2010 at about 6.00 am, after confirming the identity of the passengers Packiyanathan (A.1) and Selvam (A.2) from Ramesh (not examined) and Ramachanthiran (PW-6) the Drivers of TVLS Travels, PW-2 and other members of the NCB team identified themselves to the accused and told them about the information received and their intention to search. The accused persons after knowing about their right to be searched before a Gazetted Officer or a Judicial magistrate, they declined to exercise the said option. Packiyanathan A.1, voluntarily took out a polythene bag Containing 95 capsules of heroin powder from his black colour travel bag and gave it to Selvam (A.2) who in turn handed over the same to PW-2. The seizure of the contraband was done after informing the right and not during the personal search. Therefore, Section 50 of the NDPS Act does not apply. 17. Out of the seized contraband, after drawing two samples each 5 grams packed as S.1 and A.2, they were produced before the Magistrate along with the accused and remand application. The list of properties were shown in the annexure to remand application. The learned Judicial Magistrate has endorsed in the remand application with date and time. Thereafter, the contraband were kept in the NCB godown. The godown receipt Ex.P.21 issued by the Superintendent, NCB would show the property was in proper custody till it was produced before the Special Court for NDPS act cases. Therefore, the learned Special Public Prosecutor would submit that the contention of the learned counsel for the appellants that the custody of contraband not explained is not correct. 18. The conspiracy which was hatched between the accused in secrecy proved through circumstantial evidence and by the information given by the accused. The role of A.3 could not be convincingly established for want of jail visitors record. 18. The conspiracy which was hatched between the accused in secrecy proved through circumstantial evidence and by the information given by the accused. The role of A.3 could not be convincingly established for want of jail visitors record. Since, the other accused have met A.3 in disguise under pseudonym, the information not available therefore, the trial Court has acquitted A.3 from all charges. Whereas, the meeting of mind between A.1 and A.2 is well established through the call details report collected from the service providers. Both A.1 and A.2 traveled together under common ticket and the information disclosed by A.1 and A.2 in their statements Ex.P.11 and Ex.P.13 proves the meeting of mind to do an illegal act by illegal means. 19. The residence of A.2 was searched on 23.11.2010 but nothing incriminating could be recovered. Since, the bag containing the passport of A.1 in the custody of A.2 was removed through some third person immediately after the arrest of A.1 and A.2 on 02.11.2010. The respondent through Court, got permission to record further statement of Selvam (A.2) who was in jail. The accused refused to give statements and was not willing to cooperate with the enquiry. The Superintendent of prison vide Ex.127 informed about the same. Thus, the statements given by the accused under Sections 67 of NDPS Act which are marked as Exs.P.11 and P.13 disclose the source of the contraband, source of finance, place at which it was concealed and packed in capsules. The intention of A.1 and A.2 to export it clandestinely through A.1, who was supposed to swallow the capsules of heroin concealed in rexine hand gloves and later, after reaching Srilanka to excrete it. The conspiracy and abetment between A.1 and A.2 being well established, the trial Court judgment of conviction is sustainable. 20. Heard the learned counsel for the appellants and the learned Special Public Prosecutor appearing for the respondent. 21. The secret information received by PW-1 on 01.11.2010 at about 9.00 pm has led to the recovery of 976 grams of heroin in 95 capsules. The contraband was tested in the lab and reported to contain diacetylmorphine, narcotic drug prohibited under the NDPS Act. 22. The recovery mahazar - Ex.P.2 proves that the contraband was seized from A.1 and A.2 who traveled together under bus ticket - Ex.P.3 in TVLS Travels Omni Bus plying from Sattur to Chennai. The contraband was tested in the lab and reported to contain diacetylmorphine, narcotic drug prohibited under the NDPS Act. 22. The recovery mahazar - Ex.P.2 proves that the contraband was seized from A.1 and A.2 who traveled together under bus ticket - Ex.P.3 in TVLS Travels Omni Bus plying from Sattur to Chennai. PW-6 Ramachanthiran, the Driver of the Bus was examined by the prosecution to corroborate the fact of seizure of M.Os.1 to 7, from A.1 and A.2, which are incriminating material objects including the 976 grams of heroin. 23. Section 54 of the NDPS Act gives a statutory presumption against the accused person who are found in possession of narcotic drugs or psychotropic substance or controlled substance. The appellants herein having found in possession of 976 grams of heroin concealed in 95 capsules well insulated by cello tape on rexine gloves, had failed to satisfactorily account for the possession. 24. Regarding compliance of Section 50 of the NDPS Act, the learned counsel for the appellants relying the judgment of the Hon'ble Supreme Court in Arif Khan @ Agha Khan vs. State of Uttarakand (Criminal Appeal No. 273 of 2007 dated 27.04.2018) wound submit that there is violation of Section 50 of NDPS Act. In the said case, charas weighing around 2.5 kg was recovered from the body of the accused. In the given facts, the Hon'ble Supreme Court held that, Section 50 of the NDPS Act not complied. In this context, it is appropriate to refer para 23 of the above judgment which will throw enough light when section 50 of NDPS Act will attract. “23. Their Lordships have held in Vijaysinh Chandubha Jadeja, 2011 (1) SCC 609 that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC 67 and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC 392 . 24. Keeping in view the aforementioned principle of law laid down by this Court, we have to examine the question arising in this case as to whether the prosecution followed the mandatory procedure prescribed under Section 50 of the NDPS Act while making search and recovery of the contraband “Charas” from the appellant and, if so, whether it was done in the presence of a Magistrate or a Gazetted Officer so as to make the search and recovery of contraband “Charas” from the appellant in conformity with the requirements of Section 50. 25. In our considered view, the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence of either a Magistrate or a Gazetted Officer.” (Emphasis applied) 25. As far as the facts of this case is concerned, first of all, the contraband was recovered not from the body or from the personal search. Further, the right under Section 50 of the NDPS Act, is explained to the A.1 and A.2 before proceeding with the search process and the same is recorded in mahazar - Ex.P.3. Above all, the seizure was effected in the presence of PW-5 Thiru Gunabalan, The Superintendent of NCB a Gazetted Officer and it was in a public place. Further, the right under Section 50 of the NDPS Act, is explained to the A.1 and A.2 before proceeding with the search process and the same is recorded in mahazar - Ex.P.3. Above all, the seizure was effected in the presence of PW-5 Thiru Gunabalan, The Superintendent of NCB a Gazetted Officer and it was in a public place. Three Judges Bench of the Hon'ble Supreme Court in State of Himachal Pradesh vs. Pawan Kumar, 2005 (4) SCC 350 has held that the search of an article which was being carried by a person in his hand or on his shoulder or head etc., would not attract Section 50 of the NDPS Act. 26. The learned counsel for the appellants relying upon the judgment of the Hon'ble Supreme Court in Noor Aga vs. State of Punjab, 2008 (16) SCC 417 would submit that, the prosecution has alleged that the heroin was filled in capsules, inculated and then kept in finger shape portion of the rexine gloves. The concealing and packing was done at the residence of Selvam (A.2) at Sattur. However, nothing incriminating such as remanent packing materials recovered. Hence, non production of physical evidence is fatal to the case of the prosecution. In Noor Aga case (cited supra), the Hon'ble Supreme Court has observed as below:- “85. NON-PRODUCTION OF PHYSICAL EVIDENCE The prosecution alleged that 1.4 kgs heroin was concealed in a cardboard container for carrying grapes and were recovered from the appellant at Raja Sansi Airport. Essential key items necessary to prove the same were: "(i) The cardboard carton allegedly used for carrying the heroin to test the veracity. (ii) The bulk, which establishes the quantity recovered. (iii) The three homogenous samples of five grams each taken from the bulk amount of heroin, which would be essential in ascertaining whether the substance that the accused was allegedly in possession of was, in fact, heroin. ........... 100. Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. ........... 100. Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect of the prosecution's endeavour to prove the fact of possession of contraband from the appellant........" 27. As far as the facts of the present case is concerned, the contraband bulk and samples were produced before the Court and marked as M.Os.1, 6 and 7 respectively. The packing materials is marked as M.O.2. The remanents of rexine gloves not produced. As per the information given by A.2, the packing was done in his house at Sattur. The investigation team has conducted search of A.2 house on 23.11.2010 after 21 days of A.2's arrest. Though the investigating team has taken all endevours to collect evidence, due to lapse of time, they were not able to recover anything incriminating from the house of A.2. The mahazar drawn at his house - Ex.P.33 reveals that a bag left by A.2 was collected by a stranger from A.2's wife, two days after A.2 left the house. When the material objects viz. M.Os.1, 2 6 and 7 are the physical evidence produced by the prosecution adequately proves the guilt of the accused non recovery of the remanent gloves places no way dent the case of the prosecution. Hence, the Principle laid in Noor Aga case (cited supra) is not factually applicable to this case. 28. In respect of the omission to conduct purity test of the contraband seized, it is to be clarified after the amendment to the NDPS act, in the year 2001, which prescribes graded punishment based on the quantity possessed, the Hon'ble Supreme Court in E. Micheal Raj case (cited supra) has held as follows:- “10. The possession of offending substance would be considered an offence punishable under the NDPS Act, as heroin is an opium derivative as per Section 2(xvi)(e) which says that all preparations containing more than 0.2 percent of morphine or containing any diacetylmorphine is an opium derivative. Further, according to Section 2(xi), all opium derivatives fall under the category of manufactured drug. The possession of offending substance would be considered an offence punishable under the NDPS Act, as heroin is an opium derivative as per Section 2(xvi)(e) which says that all preparations containing more than 0.2 percent of morphine or containing any diacetylmorphine is an opium derivative. Further, according to Section 2(xi), all opium derivatives fall under the category of manufactured drug. Thus, we conclude that the offending substance is an opium derivative and hence a manufactured drug, the possession of which is in contravention of the provisions of Section 8 of the NDPS Act which prohibits certain operations to the effect that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance. 11. In the present case, the opium derivative which has been found in possession of the accused-appellant is prohibited under Section 8 of the NDPS Act and thus punishable under Section 21 thereof. The question is only with regard to the quantum of punishment. 12. As a consequence of the Amending Act, the sentence structure underwent a drastic change. The Amending Act for the first time introduced the concept of commercial quantity in relation to narcotic drugs or psychotropic substances by adding clause (viia) in Section 2, which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further, the term small quantity is defined in Section 2, clause (xxiiia), as any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. Under the rationalised sentence structure, the punishment would vary depending upon whether the quantity of offending material is small quantity, `commercial quantity or something in-between. 13. It appears from the Statement of Objects and Reasons of the Amending Act of 2001 that the intention of the legislature was to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gms. and contains 0.2% of heroin or more would be punishable under Section 21(c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such.” 29. The above judgment rendered by two Judges Bench is contrary to the earlier judgment of the Hon'ble Supreme Court in Amar Singh Ramjibhai Barot vs. State of Gujarat, 2005 (7) SCC 550 and note (2) and (4) of the Central Government notification dated 19.10.2001 as well as sections 76 and 77 of the NDPS Act confirming power to the Central Government to issue notification. When this issue came for consideration in Hira Singh vs. Union of India (Criminal Appeal No. 722 of 2017 dated 03.07.2017), the Hon'ble Supreme Court has referred the matter to larger bench and the issue is pending. 30. In this context, the submission of the state extracted by the Hon'ble Supreme Court in Hira Singh case (cited supra) is appropriate to record, so, to understand that any preparation containing diacetylmorphine irrespective of its purity should be taken as commercial quantity as per entry 239 of the schedule to NDPS act. “9. The respondents have rightly pointed out that the expression “neutral” substance has not been defined in the Act. That obviously has been coined by the Court to describe the other component of the mixture or preparation (other than the specified narcotic drug or psychotropic substance) We are also in agreement with the respondents that, the said decision nowhere makes reference to Note 2 (two) of the notification dated 19.10.2001 and that the same may have some bearing on the issue under consideration. This decision also does not refer to entry no. 239 and the interplay between the various provisions alluded to earlier while noting the argument of the respondents. That may have some bearing on the issue that has been finally answered. This decision also does not refer to entry no. 239 and the interplay between the various provisions alluded to earlier while noting the argument of the respondents. That may have some bearing on the issue that has been finally answered. The judgment, however, after quoting the notification dated 19.10.2001 took note of the purpose for which Amendment Act of 2001 was brought into force and then proceeded to hold that to achieve the said purpose of rationalisation of the sentence structure, the purity of the narcotic drug from the recovery or seizure made from the offender would be a decisive factor. In other words, the actual content or weight of the narcotic drug or psychotropic substance alone should be reckoned. For taking that view support was drawn from the observations made in another two Judges Bench decision in the case of Ouseph @ Thankachan vs. State of Kerala, 2005 (7) SCC 550 which, however, has also not elaborately dealt with the issue finally answered in E. Micheal Raj (supra) 10. It was possible to examine the wider issues raised by the respondents upon accepting their argument that the decision in E. Micheal Raj (Supra) is per incuriam. However, in our view, that decision has interpreted Section 21 of the Act. That interpretation would bind us. Moreover, that decision has been subsequently noted in other decisions of this Court............” 31. The Hon'ble Supreme Court has held in Amar Singh Ramjibhai Barot vs. State of Gujarat, 2005 (7) SCC 550 , the Hon'ble Apex Court has held that the quantity of entire mixture has to be reckoned and not limited to the pure drug content therein. 32. As far as the evidentiary value of the statement recorded under Section 67 of the NDPS Act and the reliability of those statements leading to discovery of fact, the Courts in India has explained the legal position in various pronouncements like Raj Kumar Karwal vs. Union of India, 1991 AIR 45 and in Kanniyalal vs. Union of India, 2008 (4) SCC 668 . 33. As far as this case is concerned, the statements under Section 67 of the NDPS act is given to NCB officers. They are not police officers in strict sense. Cognizance of the case is not taken on report but as complaint by public servant under Section 36A of NDPS act. 33. As far as this case is concerned, the statements under Section 67 of the NDPS act is given to NCB officers. They are not police officers in strict sense. Cognizance of the case is not taken on report but as complaint by public servant under Section 36A of NDPS act. The information given by the accused, has led to discovery of certain facts and the said statements alone is not the basis for conviction. The incriminating materials seized from them is the foundation for their conviction. Therefore, this Court finds no merit in the Criminal Appeal. 34. At this juncture, the learned counsel for the appellants submitted that both the appellants are serving the sentence pending appeal and due to poverty they are not in the position to pay the fine amount. Considering the plea, while confirming the substantive sentence, the default sentence for fine is modified. 35. In the result, the Criminal Appeal is partly allowed while confirming the substantive sentence and the fine imposed by the trial Court. The default sentence imposed by the trial Court on the appellants alone is modified. A.1 and A.2 are found guilty of four offences. For each offence, the trial Court has imposed fine of Rs. 1,00,000/- (the total fine amount imposed is Rs. 4,00,000/-) default sentence 6 months rigorous imprisonment each. The same is modified to one month rigorous imprisonment in respect of each offence. The substantive sentences for each offence shall run concurrently and the default sentence in respect of each offence shall run consecutively. In all other aspects, the judgment passed by the trial Court is confirmed.