S. Marimuthu, J. 1. Both the appeals have arisen challenging the conviction and sentence delivered by the IInd Addl. Sessions Judge, Thiruvananthapuram in S.C. No. 336 of 1993, in which there were three accused, out of whom the 3rd accused was acquitted and the 1st and 2nd accused were found guilty under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and thereby they were sentenced to undergo Rigorous Imprisonment for 15 years each and also to pay a fine of Rs. 2 lakhs and in default in the payment of fine, to undergo Rigorous Imprisonment for 21/2 years more. First accused has filed Crl. Appeal No. 491 of 1996 and the 2nd accused has filed Crl. Appeal No. 383 of 1996.
2. The crux of the prosecution case and the evidence let in by it for basing the conviction would be briefly stated hereunder: On 8-1-1993 at about 8.00 a.m., P.W. 3, the Superintendent of Central Excise Customs Preventive and Intelligent Unit, Thiruvananthapuram obtained confidential information from a person that there would be a likelihood of taking place a business of Hashish oil at about 12.30 noon in Padmanabha Tourist Home, Kovalam Junction, Kovalam. The above information was reduced into writing and kept under lock and key by P.W. 3 and in addition to it, he conveyed the information to the Assistant Collector, Customs, over phone and also by a person. Then as per the direction of the Superior Officer, P.W. 3 with P.Ws. 1 and 5 and some other Officers proceeded to the Padmanabha Tourist Home, Kovalam. On reaching the Tourist Home, there they found P.W. 7, the room boy, to whom they disclosed their identity and also wanted to verify the register. On verifying the register, marked as Ext. P1, they found that in room No. 2 one Asokan (first accused) was found to be staying and therefore, they proceeded to room No. 2 taking with them P.Ws. 2 and 6, independent witnesses, as they voluntarily agreed to be the witnesses for the search of room No. 2. In the said room P.W. 3 and his party disclosed their identity and also informed the 1st accused their intention of searching the room for which the 1st accused did not express any objection. In the course of the search, P.W. 3 found packets wrapped in a polythene cover kept under the mattress laid on the cot. When the polythene cover was opened, there were two packets inside the cover containing black coloured oil. On examination, it was found that each packet contained 500 grams of hashish oil. Two samples of 24 grams from each packet were taken and the said samples packets were sealed and the remnants was separately packed and sealed. On each packet, the signatures of the 1st accused, witnesses and P.W. 3 were obtained and thereafter Ext. P2 mahazar was prepared and it was also signed by the 1st accused, witnesses and P.W. 3. P.W. 3 then made enquiry with the 1st accused as to how he obtained the contraband for which the reply of the 1st accused was that it was entrusted to him by one Jose Thomas, the 2nd accused, who was staying in room No. 5 of Hotel Kaivalya, Thampanoor, in order to sell the Hashish oil. Therefore, for the purpose of follow-up action in hotel Kaivalya, P.W. 3 issued a search warrant to P.W. 5, Inspector and P.W. 3, thereafter, with the 1st accused and the contraband seized from the Padmanabha Tourist Home went to the Customs Office.
3. P.W. 5 with P.Ws. 2 and 6 proceeded to hotel Kaivalya and searched room No. 5 in pursuance of Ext. P 4 search warrant issued to him by P.W. 3. In room No. 5, there were accused 2 and 3. During search, P.W. 5 could not find out any contraband in the said room. However, he prepared Ext. P 3 mahazar in which the 2nd and 3rd accused, P.Ws. 2 and 6 have signed. Then P.W. 5 took 2nd and 3rd accused to P.W. 3 for further interrogation. Accused 1 to 3 gave written statements in their own handwriting with their signatures and date to P.W. 3. Exts. P5, P 6 and P 7 are the statements given by the accused 1 to 3 respectively to P.W. 3.
4. Out of the samples, two packets were sent to the Chemical Laboratory, Customs House, Kochi and from there Ext. P 17 certificate was obtained after qualitative test. On the recommendation of P.W. 4, Chemical Examiner, attached to the Laboratory, Kochi, it was sent for quantitative test. Accordingly it was sent to the Central Revenue Laboratory, New Delhi from where Ext. P 21 test report was obtained. The learned Sessions Judge on examining the entire evidence found the 1st and 2nd accused guilty and acquitted the 3rd accused as pointed out above.
5. Learned counsel appearing for the appellants would submit that the conviction and sentence reached by the learned trial Judge cannot be sustained in view of the incurable flaw and infirmity found on the facts set forth by the prosecution and the conclusion of the trial Judge is also not based on statutory and settled proposition of law. In support of this contention, learned counsel would point out that the recovery was not proper, there was delay unexplained in producing the articles before the Court, chemical examination reports marked as Exts. P 17 and P 21 are strained with suspicion, there is violation of Section 42 of the Act, etc.
6. Learned Public Prosecutor, per contra, would submit that the conviction and sentence reached by the learned Sessions Judge are proper and correct and they are in accordance with the evidence, legal and reliable, and the discussion of the learned Sessions Judge are within the ambit of law, both settled and statutory.
7. In view of the above submissions of Shri Alexander Skaria and Anil K. Narendran, learned counsel for the appellants and Addl. Central Government Standing Counsel, Shri Thomas Mathew Nellimoottil and Shri P.K. Kuttan, I will examine the evidence and also the conclusion recorded by the learned Sessions Judge, whether it is sustainable or not?
8. Before discussing the evidence on record, some of the provisions of law settled can be extracted hereunder for appreciating the contentions of both sides. The Bombay High Court in Bali Ram Moti Ramji Narnaware v. State of Maharashtra, (1996) 4 Crimes 128 and in Lamin Bojang v. State of Maharashtra (1996) 4 Crimes 212 : 1997 Cri LJ 513 has held that the non-compliance of the mandatory provisions of Section 42 of the Act will vitiate the trial. The Supreme Court in State of Punjab v. Balbir Singh (1994) 3 SCC 299 : 1994 Cri LJ 3702 has held that non-compliance of Section 42 and also Section 50 of the Act will also vitiate trial as they are prejudicial to the interest of the accused. In the same judgment, the Supreme Court has held that the provisions in Sections 52 and 57 of the Act are directory in nature and therefore any violation of these sections by themselves will not invalidate the trial or conclusion. In Naresh J. Sukhawani v. Union of India AIR 1996 SC 522 the view taken by the Supreme Court is that the statement of the accused before the officials recorded under Section 108 of the Customs Act (52 of 1962) is not a statement recorded under Section 161 of the Criminal Procedure Code and therefore, it can be used as a substantive evidence connecting the accused with the contravention of provisions of the Act and the co-accused. In Pon Adithan v. Deputy Director (1999) 6 SCC 1 : 1999 Cri LJ 3663 the principle laid down is that the statement of the accused can be taken as a piece of evidence for the purpose of corroboration of the evidence let in by the Arresting Officer or the Officer who searched the accused. In State of Punjab v. Baldev Singh (1999) 4 JT(SC) 595 : 1999 Cri LJ 3672 one of the principles laid down by the Supreme Court is that as per the provisions laid down in Section 50 of the Act before the search the accused person must be made aware of his right of being searched in the presence of a Gazetted Officer of a Magistrate following the principle laid down by the Supreme Court in Balbir Singh's case 1994 Cri LJ 3702 (stated supra). The High Court of Orissa in Suresh Kumar v. State of Orissa 1997 Cri LJ 462 has laid down that the violation of Section 42 of the Act in not reducing the information into writing and sending the copy of the same to the Superior Officer will vitiate the trial. In the same judgment, it has also been held that the violation of Section 50 of the Act will also lead to vitiate the trial.
8A. Now, as I have pointed out above, on the basis of the case law, I will examine the evidence let in by the prosecution, whether the conviction and sentence can be sustained or not? P.Ws. 1 and 5 are the Customs Inspectors working under P.W. 3, Customs Superintendent. According to the prosecution, they searched room No. 2 of Padmanabha Tourist Home at Kovalam in the presence of P.Ws. 2, 6 and 7. P.Ws. 2 and 6 are the independent witnesses and P.W. 7 is the room boy of the Tourist Home. Since the Manager of the Tourist Home was absent, in the presence of P.W. 7, P.W. 3 verified the register marked as Ext. P 1. From the entries of the register, P.W. 3 found that the 1st accused was staying in room No. 2. Then they all went to room No. 2 and after disclosing their identity, they searched the room and under the mattress on the cot, they recovered 2 packets each containing 500 grams of Hashish oil. Out of the above contrabands they took 2 samples each from the packets, each containing 24 grams and prepared Ext. P 2 mahazar. These aspects have been unambiguously spoken to by P.Ws. 1, 3 and 5. No doubt, P.Ws. 2, 6 and 7 have turned hostile and therefore they have been cross-examined by the prosecution. Though they have turned hostile, some portions of their evidence, as a matter of fact, reveal the truth supporting the case of the prosecution. Those portions of the evidence of P.Ws. 2, 6 and 7 in fact have been elaborately discussed by the learned sessions Judge. The evidence of P.Ws. 2, 6 and 7, though they have turned hostile, whether can be acted upon or not on the proposition of law. It is well settled proposition of law that when a witness is treated as hostile, his entire evidence need not be discarded. On the other hand, the portion of his evidence which is reliable and acceptable can be acted upon. These three witnesses would admit that on 8-1-1993 at about 12.30 noon, P.W. 3 and his party had come over to Kovalam Junction. P.W. 7 had particularly testified that P.W. 3 and his party came to the Tourist Home and as requested by them he produced the occupants register and after perusal of Ext. P 1, the Customs Officials went to room No. 2. It is the version of P.Ws. 2 and 6 that on the relevant day while they were standing at Kovalam Junction, the Customs Officers came there in a vehicle and they wanted their presence for the purpose of search in the tourist home and they agreed to accompany them for the search. They also put their signatures in Ext. P 2 and in the sealed packets. But they would say . that they put the signatures not in the tourist home but in the customs office. P.W. 7 would also depose that when the customs officers went to room No. 2 of the Padmanabha Tourist Home,, he did not enter the room. He also admits that he put his signature in Ext. P 2 and sealed packets, but in the customs office. The relevant portions of the versions of P.Ws. 2, 6 and 7 have been extracted by the learned sessions Judge in his judgment. A careful reading of the particular portions found in the evidence of P.Ws. 2, 6 and 7 along with the evidence of P.Ws. 1, 3 and 5 would evidence that the recovery of the Hashish liquid from room No. 2 in which the 1st accused was staying has been legally and reliably established by the prosecution. I do not find any reason also to reject the evidence of P.Ws. 1, 3 and 5. Even in the matter of taking samples in 4 parts, packing them, sealing them and getting the signatures of P.Ws. 2, 6 and 7 and P.W. 3, absolutely there is no error or irregularity. Afterall the accused were brought to the Customs Office, their statements under Section 67 of the Act have been recorded by P.W. 3 and as I have pointed out above they have been marked as Exts. P5 to P 7. Those statements as per the proposition of law can be taken as a relevant piece of evidence for the purpose of corroborating the oral testimony projected by P.Ws. 1, 3 and 5. There is nothing on record to show that those statements were obtained by compulsion or threat. On the other hand, the evidence on record would disclose that they have been voluntarily given by the accused. Hence, in short, the arrest of the 1st accused and the recovery of the contraband from the possession of the 1st accused in room No. 2 of Padmanabha Tourist Home at Kovalam have been established by the prosecution.
9. It is the evidence of P.W. 3 that two samples were sent for chemical analysis to the Customs House, Kochi and the remaining samples were kept in the safe custody as per the instructions issued by the Narcotic Bureau, New Delhi. P.W. 4 is a retired chemical examiner of the Customs House, Kochi and it is he who has issued Ext. P17 test memo after chemical examination of the samples. According to P.W. 4, the samples were marked with the letters PISI and P2SI and the samples were received in the laboratory in sealed packet and the seals were intact and the seals tallied with the fascimile of the seals affixed on the test memo and the description given in the test memo tallied with the description given in the samples of packets and it is the further evidence of P.W. 4 that he conducted the qualitative test in the laboratory on the basis of which he issued Ext. P17 and the qualitative test is a reliable test, for narcotic drugs for ascertaining the parity. According to his test, it was only Hashish oil. PW 3 would state that originally it was sent for quantitative test to Madras and it was returned for want of facility and therefore it was sent to the Central Revenue Control Laboratory, New Delhi. The certificate issued from the Central Revenue Control Laboratory is Ext. P21. A comparative study of Ext. P17 and Ext. P21 with the evidence of PW 3 and PW 4, would make it obviously clear that there was no 'delay in the matter of producing the contraband articles in Court, sending them for chemical analysis and also obtaining reports from the experts. I also do not find any infirmity in both Exts. B17 and B21. Both Exts. B17 and B21 would show that the samples contained hashish oil.
10. P.W. 5 on the direction of PW 3 receiving Ext. P4 search memo proceeded to room No. 5 of Hotel Kaivalya. As pointed out above, P.W. 5 had taken with him P.W. 2 and P.W. 6, the independent witnesses. In the presence of both, P.W. 5 searched the room of A2 and A3. However, nothing was recovered from them. P.W. 5 has, however, prepared Exzt. P3 mahazar, which is signed by P.W. 2 and P.W. 6. Thereafter, A2 and A3 were brought to P.W. 3. Before P.W. 3, A2 and A3 also gave statements like A1. As pointed out above, they were in fact written by their own hand. Exts. B6 and B7, are the statements of A2 and A3 respectively. As pointed out above, those statements have been recorded under Section 67 of the Act. So far as the statement of A2 is concerned, it is actually corroborated by the statement given by A1, which has been marked as Ext. P5. In Ext. P5, A1 as unambiguously stated that he was supplied hashish oil by A2 for sale. He has not whispered anything about A3. In this context, it is also relevant to note the principle stated by the Supreme Court that the statements recorded under Section 67 of the Act can be taken for the purpose of corroborating the evidence of the customs officers. In yet another decision of the Supreme Court under the Customs Act, in Naresh J. Sukhawani's case AIR 1996 SC 522 (stated supra) it is held that the statement made before the customs officials by one co-accused can be used as a material piece of evidence against the other accused. Though nothing was recovered from A2 or nothing was recovered from the room which was occupied by A2, he can also be rightly held liable on the basis of the statements voluntarily given by him and by A1. The trial Court in this matter of connecting A2 with the offence has elaborately and properly discussed and finally the trial Court has reached a correct finding. Though P.Ws. 2 and 6 have turned hostile, as I have pointed out above, their evidence also contain reliable portions in order to connect A2 with the offence. So far as A3 is concerned, examining the statement of A3 marked as Ext. P7, the statement of A1 marked as Ext. P5, and also the surrounding circumstances, the trial Court has correctly concluded that he is an innocent person. In short, the prosecution has established the offence as against A1 and A2. In so far as Section 42 of the Act is concerned, the finding of the trial Court, in my view, is perfectly correct. However, now I will look into the mandatory provisions under Section 42 of the Act and also the evidence thereon in this regard. It is the evidence of P.W. 3 that on obtaining the confidential information he reduced it into writing and he kept it under the lock and key and also conveyed the message to the Assistant Collector over phone and through a person and the information which he received was that the business in narcotic drugs was likely to be taken place at Padmanabha Tourist Home which is admittedly a public place. It is not the information received by him that the business was likely to be taken place in room No. 2 which was in the occupation of A1. Therefore, strictly speaking, Section 42 of the Act is not attracted. Under Section 42, the information has to be reduced into writing and the copy of the same has to be sent to the superior officer provided the information is in relation to the commission of an offence in a private place and Section 43 of the Act is related to the offence committed in the public place. Section 43 does not say such a requirement of reducing the information into writing and sending the copy of the same to the superior officer. The trial Court in all these matters has elaborately analysed and recorded a correct finding.
11. In so far as Section 57 is concerned, as held by the Supreme Court stated supra, any violation of Section 57 will not vitiate the trial. However, in this case after the operation was over, as is seen in the evidence of P.W. 3, everything was reduced into writing under Ext. P15 report and the same was sent immediately to his superior officer. Therefore, in fact, there is no violation of Section 57 of the Act.
12. On account of the above premises discussed in detail, I am of the view that the conviction rendered by the trial Judge can be sustained. In so far as the sentence of imprisonment and fine are concerned, both the appellants have been sentenced to undergo rigorous imprisonment for 15 years and also to pay a fine of Rs. Two Lakhs each and in default in the payment of fine to undergo rigorous imprisonment for a period of two years and six months. For imposing such imprisonment and fine, the learned trial Judge has given some reasons, viz. that of the acts of the appellants in selling the narcotic substance, a sizable section of the public are becoming addicted to drugs, particularly, students have been completely ruined and in order to have an effective control and check and to eradicate the said damage to the society, such punishment is necessary. The learned trial Judge has also considered the family background of both the appellants and they would go to show that they are the bread-winners of their families and they are the first offenders of such offence and their families consist of their wives, children and parents. When I examined the above statements of A1 and A2 and also the reasons recorded by the trial Judge in imposing the above said punishment, I feel that the sentence of imprisonment can be reduced to 10 years and the fine also can be reduced to Rs. One Lakh and in default of payment of fine to undergo rigorous imprisonment for one year.
In the result, the conviction under Section 21 of the Act is confirmed. In so far as the sentence of imprisonment of 15 years is concerned, it is reduced to 10 years rigorous imprisonment and in so far as the fine of Rs. Two Lakhs is concerned, it is reduced to an amount of Rs. One Lakh each and in default in the payment of fine to undergo rigorous imprisonment for one year. With the above modification in the sentence, the appeal stands dismissed.