M.S. PARIKH, J.

(1) THE appellant herein has brought under challenge his conviction under Secs. 23, 24 and 29 of the Narcotic Drugs and Psychotropic substances Act, 1985 (for short the N. D. P. S. Act), and his sentence to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000. 00 (Rupees one lakh only), in default to undergo imprisonment for a period of 3 months on each of the charges as per the judgment and order dated 22-1-1991 rendered by the learned Addl. Sessions Judge, Kheda at Nadiad in Sessions Case No. 155 of 1989.

(2) THE committal case to the Sessions Court originated from the complaint Exh. 46 filed by Mr. C. R. Desai, Superintendent of Customs (Preventive), Ahmedabad bearing Criminal Case No. 1582 of 1989 in the Court of the Chief Judicial magistrate at Nadiad. According to the complaint when Mr. R. N. Kakkar, Deputy director, Narcotic Control Bureau, Bombay, received letter from Mr. C. R. Woodward, Drug Liaision Officer, Bombay, on 8-2-1989 informing him about the two album type books containing photographs of padded plastic covers left by one mr. Rajnikant Patel with Mr. Dilip and Kamlesh and the said books suspected to contain narcotic drug, Mr. Kakkar passed on the said information to Mr. P. N. Vithaldas, Additional Collector of Customs (Prev.) Ahmedabad, on telephone in the evening on 8-2-1989. The Custom Officers at Ahmedabad started investigation into the matter upon receipt of such information and it transpired that one Mr. Rajnikant patel alongwith his wife and daughter had been to India from London in the 1st week of January, 1989. They were the holders of British Passports and they are citizens of England. They originally belong to village Bodal, Taluka Borsad, District Kheda. They had come to India for paying visit to their native place and were to go back home in the 1st week of Feburary 1989. They had tickets for London. For confirmation of the tickets they contacted the accused, Mr. Bipinbhai Ashabhai Patel (the appellant herein) carrying on the business of travel agency in the name of Bipco tours and Travels at Borsad, on or around 25-1-1989. The accused Bipin Ashabhai patel sent the said tickets through Angadia to Shri Mahesh P. Bhatt, carrying on business in the name and style of Royal Travel Agency, Bombay on 31-1-1989 for confirmation. The tickets were then returned to the accused duly confirmed, on 2-2-1989. On 3-2-1989 Rajnikant Patel alongwith his brother-in-law Kamlesh went to the office of the accused Bipinbhai Ashabhai Patel at Borsad to make inquiry and he was informed that the tickets were confirmed. When Mr. Rajnikant went to the office of the accused, Mr. Bipinbhai requested him to carry his two books for his friends relative at London. Kamleshbhai paid Rs. 150. 00 by way of service charges to the accused and signed the register. Mr. Rajnikant Patel agreed to take the books for the accuseds firends relative at London and the accused packed the two books with a brown cover and the name of the recipient was written on that cover. That name was deepak Amin, 9671246, london, U. K. The accused further told Mr. Rajnikant Patel that the recepient of the books would come personally and take delivery from him (Mr. Rajnikant Patel). When Mr. Rajnikant Patel agreed to take the books, the accused returned the amount of Rs. 150. 00 received by way of service charges, to Mr. Kamlesh. On 3-2-1989 at night Mr. Rajnikant Patel alongwith his family left for Bombay. Mr. Ranjikant Patel felt suspicious about the books and on he having given a cut to one of the books, he found that some brown powder was coming out. He immediately closed it with a bandage strip and gave the books to his brother-in-law mr. Dilip and Mr. Kamlesh telling them to keep the books with them till he/they would hear from Mr. Rajnikant Patel. Mr. Rajnikant Patel further informed to give the books to Customs Officer or Police Officer when they happened to go to him/ them. Mr. Rajnikant Patel accordingly left with his family to London. At London Air Port Mr. Rajnikant Patel informed the Customs Officers about what he found in the books and with whom he kept the books. That information was passed on by the London Custom Officers to their Drug Liaisoning Officer at bombay, who in turn passed on the information to Mr. Kakkar, Deputy Director, narcotic Control Bureau, Bombay, who as aforesaid contacted Mr. Vithaldas, Deputy collector of Customs (Preventive), Ahmedabad. Mr. C. R. Desai, Superintendent of Customs (Preventive), Ahmedabad alongwith his two Inspectors Mr. M. P. Shah and Mr. A. S. Saiyed went to Borsad and Bodal and contacted Mr. Kamlesh, who produced the aforesaid two books before them. The said books were seized in the presence of Panchas Mr. Piyushbhai Natvarlal patel of Borsad and Vinubhai Dhulabhai Patel of Borsad. The books were put in oscar brand suit case which was sealed, with a paper slip signed by Panchas, Dilip, kamlesh, Seizing Officer Shri M. P. Shah, having been affixed on it and with a government seal having been applied on it. The suit case was then brought to ahmedabad. The accused was then brought from Bombay to Ahmedabad on 10-2-1989 during morning hours. After he was brought to the Customs Office where Kamlesh and Dilip were also called, the said suit case was opened in the presence of the accused, Dilip, Kamlesh and two Panchas Mr. Ahmed Husain Shaikh and Abdul sattar Abdul Gani Shaikh, both of Ahmedabad. From each cover of each book one plastic bag was secured, in all four plastic bags were secured and all the four plastic bags contained brown sugar weighing 860 grams worth Rs. 1 lakh. Three samples were drawn from each bag and each sample weighed 5 grms. In all 12 samples, each of 5 grms. , were drawn. Each sample was placed in an envelope and that was sealed with Government seal with a paper slip duly signed by Panchas, accused, Kamlesh and Dilip and the Seizing Officer having been affixed thereon. The remaining brown sugar was kept in the respective plastic bags, which were kept in the suit case alongwith two books and two brown envelopes and sealing material which were opened in office at Ahmedabad. The suit case was again sealed and the slip containing signatures of the Panchas, accused. Kamlesh, Dilip and seizing Officer was affixed on it and it was sealed. The four samples were sent to the Forensic Science Laboratory at Ahmedabad and four samples were sent to C. R. C. L. , New Delhi. The report of the Chemical analyser revealed that the samples contained Diacetyl Morphine (Heroin). The statement of the accused Bipinbhai Ashabhai Patel was also recorded under s. 67 of the N. D. P. S. Act and it transpired that he had received the two books from one Dhirubhai Gohil working with Royal Travel Agency, Bombay run and operated by Mr. Mahesh P. Bhatt and Shailesh N. Bhatt. It further transpired during the investigation that M/s. Mahesh Bhatt, Kishor R. Bhatt and Ashok R. Bhatt and aforesaid Mr. Dhirubhai Gohil were in collusion with the accused Bipinbhai Ashabhai Patel carrying on nefarious activities and on previous occasions also such books were being sent to London through some passengers; some of them were Suryakant Patel, Ritaben Patel, Naliniben Patel. The accused was promised Rs. 1,500. 00 to Rs. 2,000. 00 per book. The fact that Mr. Suryakant Patel was given a book got support from the letter written by accused-Bipinbhai to Mahesh bhatt of Royal Travels, Bombay. It accordingly appeared that Mr. Mahesh P. Bhatt, Mr. Shailesh N. Bhatt, Mr. Kishor R. Bhatt and Mr. Ashok R. Bhatt and Dhirubhai had conspired to export brown sugar from India to London and in pursuance of the said conspiracy, the books containing brown sugar were being sent through various passengers. All the aforesaid conspirators were not traceable and were absconding, with the result that the complaint was required to be filed only against the accused (appellant herein), since the complaint could not be delayed for long. Under the aforesaid circumstances the accused was required to be prosecuted under the aforesaid provisions of the N. D. P. S. Act.

(3) AFTER the receipt of complaint as aforesaid, the leanred Chief Judicial magistrate committed the case to the Sessions Court. Charge was framed against the accused under the aforesaid provisions of the N. D. P. S. Act. The accused having pleaded not guilty, trial was held before the learned Additional Sessions Judge. The prosecution adduced evidence in the form of -P. W. 1 Mr. Dilipbhai Shivabhai Patel Exh. 14, p. W. 2 Panch witness Mr. Piyushbhai N. Patel Exh. 15, p. W. 3 Mr. Vinubhai Dhulabhai Patel Exh. 17, p. W. 4 Panch witness Mr. Ratilal Bapulal Soni Exh. 18, p. W. 5 Mr. Mahendra Parshotamdas Shah Exh. 20, p. W. 6 Mr. Dayaram Mayaram Thapliyal Exh. 22, p. W. 7 Mr. Mukundbhai Ramanbhai Patel Exh. 24, p. W. 8 Panch witness Mr. Ahmed Husain Kalubhai Exh. 26, p. W. 9 Panch witness Mr. Abdul Sattar Abdul Gani Shaikh Exh. 28, p. W. 10 Mr. Rameshbhai Ramnathan Exh. 29, p. W. 11 Mr. Chandrakant Ratilal Desai Exh. 31, p. W. 12 Mr. Ravindranath R. Kakkar (Kakkad) Exh. 51 and p. W. 13 Mr. Abdul Habibkhan Abdul Mazidkhan Maulavi Exh. 53. Prosecution also placed on record documentary evidence in the form of statements of the accused Exh. 30 and Exh. 36, statement of Mr. Dilipbhai Exh. 33, statement of Mr. Dilipbhai recorded on 10-2-1989 identifying the photograph of the accused Exh. 34, statement of Mr. Kamleshbhai recorded on 10-2-1989 identifying the photograph of the accused Exh. 35, instructions of the Additional Collector of customs appearing at Exh. 37, communication dated 9-2-1989 addressed by Mr. R. M. Kakkar Exh. 39, communication dated 10-5-1989 from the complainant addressed to the Assistant Collector of Customs, Ahmedabad Exh. 40, the letter with Annexures a and B sent by the complainant by filling in the details with regard to the offence in the relevant form on 12-2-1989 Exh. 41, telex dated 11-2-1989 sent by the collector of Customs, Ahmedabad to N. C. B. , letter dated 14-2-1989 addressed to forensic Science Laboratory for examination of the samples with Annexures Exh. 43, letter dated 14-2-1989 acknowledging the receipt of the samples by the Forensic science Laboratory, Ahmedabad Exh. 44, the report of the Forensic Science laboratory, dated 23-2-1989 Exh. 45, letter authorising Mr. M. P. Shah to carry out search warrant issued by the Assistant Collector of Customs, Ahmedabad Exh. 21, authorisation letter dated 9-2-1989 Exh. 23, the Panchnama made by Mr. M. P. Shah on 9-2-1989 at the house of Mr. Kamlesh Shivabhai and Dilipbhai Shivabhai Exh. 16, the Panchnama dated 9-2-1989 with regard to production of one register and duplicate book by accuseds brother Mr. Dineshbhai Ashabhai Patel Exh. 19, and panchnama dated 10-2-1989 showing taking of samples in presence of the Panchas by Mr. A. M. Maulavi Exh. 27. Exh. 52 is the communication dated 6-11-1989 from Mr. C. R. Woodward, Drug liaison Officer, H. M. Customs and Excise, Investigation Division, British Deputy high Commission, Bombay to Mr. R. N. Kakkar of Bombay inter alia intimating that three persons Abdul Hameed Khan, Mazhar Hussein and Basharat Ali who were arrested in U. K. for attempted importation of 850 Grms. , of heroin seized by ahmedabad Customs in Borsad, Gujarat were tried and sentenced to imprisonment for 7 years, 7 years and 5 years respectively and fine of 10,217 and 200/-respectively for the first two accused. Certified copy of the statement of Mr. Rajnikant Patel recorded in London has been produced with Exh. 50.

(4) UPON conclusion of the trial before the learned Additional Sessions Judge and after recording the statement of the accused under S. 313 of the Code of criminal Procedure, 1973 and after hearing the submissions made on behalf of both the sides, the learned Additional Sessions Judge rendered his judgment of conviction and sentence as aforesaid. The accused being aggrieved with and dissatisfied by the said judgment has preferred this appeal.

(5) WE have heard Mr. Vivek Barot, learned Counsel appearing for the accused appellant herein, Mr. S. A. Pandya, learned A. P. P. , for the State and Mr. Sunil C. Patel, learned Additional Standing Counsel appearing for the Customs Department. It has been submitted by Mr. Barot that conscious possession of the offending substance in question in so far as the appellant is concerned could not be said to have been established beyond reasonable doubt, if the accuseds statement Exh. 36 is not taken into consideration. According to his submission the said statement cannot be received and read in evidence in as much as the same cannot be said to have been obtained voluntarily or given voluntarily by the accused. For the purpose of making good his submission he placed reliance upon Exh. 30 which is the first statement of the accused. That was recorded pursuant to the summons issued under S. 108 of the Customs Act, 1962 read with S. 67 of the n. D. P. S. Act in the office of the Narcotic Central Bureau, Central Building, Bombay on 9-2-1989. A warning to the effect that giving false evidence or concealing material facts is an offence punishable under S. 193 of the Indian Penal Code has been set out in the statement and it has also been stated that realising the responsibility which the accused owed he was to give his true and voluntary statement. Referring to the correctness of his name and address stated in the statement, he has asserted that three out of his five brothers were doing business and two were in service, himself being a travel agent having his office at 113, Janta Bazar, Borsad, in the name and style of Bipco Travels. He was undertaking booking only for international flights and for confirmation of tickets he was getting the work done through Royal travels situated at 1, Share Building, 2nd Nanabhai Lane, Near Fountain, Bombay-1. He was visiting Bombay once in a month in connection with this work. The Royal travels was owned by M/s. Shailesh and Mahesh Bhatt. On being specifically asked about having sent anything to U. K. through one Rajnikant Patel, he asserted that mr. Rajnikant Patel approached him for confirmation of his ticket from Bombay to london. He sent this ticket through courier to aforesaid Royal Travels of Bombay for confirmation. This ticket was confirmed for 5-2-1989 (sic.) and he received it on 3-2-1989 (sic.). On 2-2-1989 one person giving his name as Dhirubhai came to him with two books with plastic covers and showing visiting card of Royal Travels told him that the books were given by Mr. Bhatt of Royal Travels and the same should be given to Rajnikant Patel for taking to London. On the cover of the book "amin" was written and a telephone number, which he did not remember was also written. When Mr. Dhirubhai told him that Mr. Bhatt had sent him (books), he took him to Maheshbhai Bhatt as he used to contact Maheshbhai Bhatt for confirmation of the tickets. He has seen Dhirubhai once in the office of the Royal Travels. He stated that on 6-2-1989 Mr. Mahesh Bhatt contacted him at his office telephone No. 261 and asked whether he got the tickets of Mr. Rajnikant Patel to which he replied that he had received them. He then asked whether books had been taken by Mr. Rajnikant Patel and if not taken, they should be returned to him. He replied that Mr. Patel had taken the books. He then gave the telephone numbers of Royal Travels. According to his say he used to contact Mr. Mahesh Bhatt on the said telephone no. (233185) in connection with his business. He has signed the statement after having read the same as having been given by him and having been correct as deposed to by him.

(6) REFERRING to the aforesaid statement Exh. 30 it has been submitted that by no stretch of imagination the aforesaid statement could be said to be an incriminating statement. However, it has been fairly conceded that the stand of the accused before the learned Addl. Sessions Judge was that even this statement was recorded/obtained under threat/coercion.

(7) IT is not in dispute that the case was investigated by the Custom authorities in Gujarat at Ahmedabad and the accused had been brought to such authorities on 10-2-1989 pursuant to a summons issued to him. However, it has been submitted that the accused was under apprehension right from 9-2-1989 till upto his second statement was recorded on 11-2-1989 and he could not be said to be a free agent so as to say that he had given his statement voluntarily. In the background of the aforesaid submissions, statement Exh. 36 has been referred to. It is not in dispute that the said statement had been recorded prior to the accuseds arrest on 11-2-1989. It is no doubt true that the submission of Mr. Barot has been that the accused had been under apprehension and in custody for all practical purposes even before he was formally arrested. Flowing from this submission is his argument that the statement Exh. 36 cannot be said to be voluntary. Exh. 36 then would reveal these facts :-The statement was recorded pursuant to the provisions contained in S. 108 of the customs Act, 1962 and S. 67 of the N. D. P. S. Act and contains a caution to the effect that if true facts were not stated and if the accused misled the authorities, he would be prosecuted under S. 193 of the I. P. C. Accused has given the particulars of his family as aforesaid, stating also the names of his brothers and sisters, one of the brothers being mr. Dineshbhai. He has asserted that he was residing at the address stated in the statement with the family. He has stated that he was educated up to Pre-Science and after Pre-Science he had undergone the course of Diploma in Petrochemicals, but he failed in the last examination thereof. He was running a travel agency in the name of bipco Travels and Tours at Borsad, District Kheda and was attending to the work of passports and Visas as also work of air travel tickets and confirmation thereof by taking service charges. He has been carrying on such business since June 1979. He had gone to London to attend one marriage occasion on 27-9-1986. He had stayed there for about 15 days on that occasion. He held the Passport, although he did not remember his passport number. He was attending to the passengers travelling abroad from district kheda. He knew Mr. Dilipbhai Shivabhai Patel and his younger brother Mr. Kamlesh shivabhai Patel of village Bodal, situated at a distance of 7 to 8 Kms. , from borsad. He also knew their sister Kalavatiben, who settled in London and married with Mr. Rajnikant Patel of London. He has stated that he knew Mr. Rajnikant patel very well. During the period between 25-1-1989 to 30-1-1989 Mr. Rajnikant Patel in the company of his brother-in-law Mr. Kamleshbhai Shivabhai Patel had seen him at his office and asked him to get confirmation of his three tickets for London by Air canada. The tickets were in the name of Rajnikant Patel, his wife Kalavatiben and his daughter Linal. He accepted the three air tickets for confirmation and sent them through Angadia on 31-3-1989 (31-1-1989) to Mr. Mahesh Bhatt running Royal travel Agency at Bombay for the purpose of reconfirmation of the said three tickets. He had business transactions with said Royal Travel Agency from January 1988. He was getting the work with regard to Visas of such passengers and reconfirmation of tickets of such passengers through said Royal Travel Agency. He received back the three air tickets duly reconfirmed through Angadia from Bombay on 2-2-1989. On 3-2-1989 Mr. Rajnikant Patel and his younger brother-in-law Mr. Kamleshbhai Patel had been to his office and he had returned the aforesaid three air tickets duly confirmed to them and Mr. Kamleshbhai Patel paid Rs. 150. 00 by way of service charges and signed in the register in token of having received tickets. After some talks he requested Mr. Rajnikant Patel to take two English books of big size on Birds and Tigers for the same being handed over to a relative of his friend in London. He expressed that he would be obliged if that work was done. Mr. Rajnikant Patel thereupon consented for the books being taken to London. The accused, therefore, stated to have wrapped the books in a brown colour cover. On both the brown colour covers name of one deepak Amin and his address "967146 london U. K. " was written. He informed Mr. Rajnikant that the person who was to be given the books would himself collect the books from him after contacting him (Mr. Rajnikant). Upon Mr. Rajnikant Patel having taken the books accordingly, he returned the amount of Rs. 150. 00 recovered by way of service charges to Mr. Kamleshbhai Patel saying that he did not want to take the same. Mr. Rajnikant Patel, his wife and his daughter were to leave for London by Air Canada Flight No. 889 at 2-00 Oclock in early morning on 5-2-1989. One of the books was on the subject of Birds and the other book was in respect of Tigers of Indian forest. In the front and rear portion of the books bags containing brown sugar had been hidden with a dark brown ragzine having been affixed thereon and that fact he was knowing but he did not inform Mr. Rajnikant or Kamlesh about the same. The said books containing brown sugar were given by Mr. Dhirubhai Gohil, who came from Bombay on 2-2-1989 informing him that the books should be sent to London through Mr. Rajnikant Patel, who was travelling on 5-2-1989. Mr. Dhirubhai Gohil belonged to nadiad and he was aged around 40 years. The accused knew him well as he was attending to the work in the office of Royal Travels with whom the accused had business relations. He has given the names of all who were concerned with Royal travels as also the addresses and telephone numbers of the said concerned persons. He has also given the particulars about another concern in the name of M/s. Bharat trading Company carrying on business of import and export run by Mr. Ashok R. Bhatt and Mr. Kishor R. Bhatt. He has also given the particulars with regard to third concern in the name of Express Employment Exchange being run by the persons belonging to the said Bhatt family. He has then stated that M/s. Mahesh, Shailash alias Shirish, Kishor, Ashok Bhatt and Dhirubhai Gohil were dealing in brown sugar being transported to London and America through passengers by hiding the substance in big size books. For the last about 4 to 5 months before his statement they were sending such books through the passengers who were the accuseds customers. The accused was taken in confidence for that purpose on their promise to pay Rs. 1,500/- to Rs. 2,000/- per book. Accordingly, previously also such books were sent to london through his passengers one of whom was Mr. Suryakantbhai Patel, who travelled by Air India on 27-1-1989 by 2 Oclock Flight for U. S. A. Port Land, via london and one book with a bag of brown sugar hidden therein sent to London through him as Mr. Suryakant Patel was to stay for three days at London. He has stated having gone to see off Mr. Suryakant Patel at Bombay Air Port where Mr. Dhirubhai Gohil had given the book with brown sugar hidden therein. He told Mr. Dhirubhai that the book might be handed over to Mr. Suryankant Patel, who was his distant relative and that he (Mr. Suryakant Patel) would hand over the book to the person seeking to collect the book at London. Mr. Suryakant had accordingly taken the book with him to London. Another passenger Smt. Naliniben R. Patel left india for New Jersy, U. S. A. from Bombay by Pan Am Flight No. 67 on 7-2-1989. He had gone to see her at the Air Port and on that occasion also Mr. Dhirubhai Gohil had handed over two such books containing brown sugar, which the accused passed on to Smt. Naliniben, who was his distant relative. The books contained address of U. S. A. and they were taken by Naliniben at the say of the accused. The books were handed over by Mr. Kishor Bhatt to Mr. Dhirubhai Gohil in presence of the accused. Mr. Dhirubhai Gohil as aforesaid, had gone with the books to the air Port and handed over to the accused, who in turn handed them over to Smt. Naliniben Patel, who did not know that brown sugar was hidden therein. In the same fashion another passenger Smt. Ritaben Mayurbhai of village Bodal was to go to London by Kuwait Airlines Flight No. 302 on 18-12-1988. She was to take her air ticket duly confirmed from aforesaid Royal Travel Agency at Bombay. When she left for Bombay the accused instructed her that when she would go to collect her air tickets at the office of the Royal Travels, Bombay, she would accept the book which would be entrusted to her for being taken to London and said Ritaben consented for the book to be taken. She accordingly accepted the book as per the facts set out by the accused. In this fashion number of passengers were persuaded to take such books containing brown sugar. Such acts were indulged into by aforesaid Mr. Dhirubhai Gohil and he in the conspiracy of aforesaid Mr. Mahesh bhatt, Shailesh alias Shirish Bhatt, Kishor R. Bhatt and Ashok R. Bhatt indulged in such acts. The accused disclosed the particulars of telephone numbers and addresses of all these persons and stated that he was being promised payment of rs. 1,500/- to Rs. 2,000. 00 per book, but he was not paid such remuneration till the date of his statement. However, all his works with regard to his passengers were being attended to speedily and without difficulty and without charging anything in that respect. He has further stated that on 4-2-1989 he started at night from Borsad for going to Bombay and he was in Bombay from 5-2-1989 to 9-2-1989, during which period aforesaid passenger Naliniben R. Patel proceeded for going to U. S. A. on 7-2-1989 and two such books were also given to her in his presence. He had stayed at the residence of aforesaid Nalinibens uncle in Shantacruz. He has given the address where he stayed during that period. Thereafter on 9-2-1989 Custom officers of Bombay called him in the office of Narcotic Control Bureau located on the 3rd floor of Exchange Building, Ballard Estate, Bombay and his statement was recorded. He was also given summons for remaining present before the Custom officer in Custom Office situated in Navrangpura, Ahmedabad on 10-2-1989. Accordingly, he appeared before such officer at 10 Oclock in the morning and on 10-2-1989 at around 3-00 Oclock in the afternoon M/s. Dilipbhai S. Patel and kamleshbhai S. Patel, as also two panchas were present and in their presence and in presence of the accused one sealed suit case of Oscar make was presented for further investigation and from that suit case two big size English books concerning birds and tigers were found with two brown paper covers and from the said books four bags containing 860 grams of brown sugar were also found and were seized. He has stated that he had himself given said two books to aforesaid passenger Mr. Rajnikant Patel for the same being taken to London. He has given such books at borsad on 3-2-1989. Panchnama with regard to the seizure of aforesaid brown sugar from the books in question was prepared. He has finally asserted that the statement was given by him at his own sweet will and without there being any pressure or threatening of any sort.

(8) THE aforesaid second statement of the accused Bipinbhai Ashabhai Patel, as stated above, has been questioned by Mr. Barot, learned Counsel appearing for the appellant. He has submitted that the said statement cannot be said to be voluntary as contemplated under S. 24 of the Evidence Act. As stated above, his submission is that the accused was already apprehended at Bombay and he remained all throughout in the custody of the concerned officers till upto the time his second statement was recorded and since custody could not be said to be legal, as it was for a period of more than 24 hours, that would deprive voluntary nature of the statement in question. We may, therefore, first reproduce S. 24 of the Evidence act :-

"24. Confession caused by inducement, threat or promise when irrelevant in criminal proceeding :- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him. "

(9) IN support of his submission Mr. Barot placed reliance upon a decision of the Apex Court in the case of Percy Rustomji Basta v. State of Maharashtra, reported in AIR 1971 SC 1087 [LQ/SC/1971/184] . He read before us what has been said by the Honble Supreme court in paras 20 and 21 of the citation. Reference has been made to a summons issued by the Customs Authorities by virtue of provision contained in S. 108 of the Custom Act. We may not take ourselves to the discussion of this decision, for mr. Patel, learned Additional Standing Counsel has made a reference to a decision of the Apex Court in the case of K. I. Pavunny v. Assistant Collector (HQ), Central excise Collectorate, reported in 1997 (3) SCC 721 [LQ/SC/1997/170] . Dealing with the submission flowing from S. 24 of the Indian Evidence Act and making a reference to the case of P. Rustomji Basta (supra) following observations have been made in para 14 of the citation :-

". . . . . . . . . In Percy Rustomji Basta v. State of Maharastra (AIR 1971 SC 1087 [LQ/SC/1971/184] ) a bench of two Judges considered the question whether by reason of recording of the evidence during the course of the inquiry under the Act the statement would be construed to be compulsive statements emanating from persons in authority so as to become inadmissible under S. 24 of the Evidence Act. In para 20 (SCC para 18) of the judgment it was held that it was not disputed that P. W. 5 who recorded the confession, was a person in authority within the Act. But the question was whether, when P. W. 5 drew the attention of the appellant to the fact that the inquiry was a judicial proceeding to which S. 193 I. P. C. applied and that the appellant was bound to speak the truth, it could be considered to be threat, inducement or promise emanating from a person in authority under the section. In para 24 (SCC para 22, P. 854) it was considered and held that -"a person summoned under S. 108 of the Act is told by the statute itself that under threat of criminal prosecution he is bound to speak what he knows and state it truthfully. But it must be noted that a compulsion to speak the truth, even though it may amount to a threat, emanated not from the officer who recorded the statement, but from the provisions of the statute itself. What is necessary to constitute a threat under S. 24 of the Evidence Act is that it must emanate from the person in authority. In the case before us there was no such threat emanating from P. W. 5, who recorded the statement of P. W. 19, who was guiding the proceedings. On the contrary, the officers recording the statement were only doing their duty in bringing to the notice of the appellant the provisions of the statute. Even if P. W. 5 had not drawn the attention of the appellant to the fact that the inquiry conducted by him is deemed to be a judicial proceeding, to which S. 193 I. P. C. applies, the appellant was bound to speak the truth when summoned under S. 108 of the Act with the added risk of being prosecuted, if he gave false evidence. "it was further held that (SCC 854-55 Para 23) -"it is not every threat, inducement or promise even emanating from the person in authority that is hit by S. 24 of the Evidence Act. In order to attract the bar, it has to be such an inducement, threat or promise, which should lead the accused to suppose that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him. In the case before us, what is it that the appellant has been told He has been told that the law requires him to tell the truth and if he does not tell the truth, he may be prosecuted under S. 193 I. P. C. for giving false evidence. "the plea of the appellant therein was that he was compelled to make the statement under the threat that otherwise his mother and another brother would be prosecuted. He had further stated that he was induced to make statement on the belief that it will be used only against the second accused and not against him. These pleas of the appellant therein had been disbelieved by both the trial Court and the High Court. Therefore, it was held that even assuming that there was an inducement or threat, the appellant therein had no basis for supposing that by making the statement he would gain any advantage or avoid any evil with reference to the proceedings in respect of which an inquiry was being conducted by the Customs Officers. Therefore, even on this ground also S. 24 of the evidence Act had no application. The above ratio squarely applies to the facts in this case. The appellant was under a legal duty to state the facts truthfully lest he would be liable to prosecution. The threat emanates from and is that of the statute and the officers merely enforced the law. The allegations as to the threat of implication of his wife was an afterthought and he did not mention the same when he appeared before the Magistrate and obtained bail. "

It is no doubt true that in the present case reference has been made to Sec. 67 of the N. D. P. S. Act in the respective summons given to the accused. The concerned Custom Authorities have also made inquiry by virtue of provisions contained in S. 108 of the Customs Act and reference of that provision has also been made. In the present case, the accused has challenged not only the second statement, which has been called in question by the learned Counsel for him before us, but he challenged before the learned Additional Sessions Judge even his first statement, which is rightly submitted by Mr. Barot to be exculpatory statement. Mr. Barot had taken us to the accuseds retraction as contained in Exh. 47 which was sent on 16-2-1989 by the accused from the central Jail, Sabarmati, Ahmedabad to the learned Chief Metropolitan magistrate, Ahmedabad. There he has alleged that he was illegally apprehended on 9-2-1989 by the Inspector, Preventive Branch, Customs, Bombay and was brought by Baroda Express train during night time from Bombay to baroda and from Baroda to Ahmedabad by a State transport bus and was entrusted to the Superintendent, Customs Department, Custom House, Head quarter, Navrangpura, Ahmedabad at about 11 Oclock in the morning. He has alleged that the Custom Authorities at Bombay and Ahmedabad had beaten him, induced him and pressurised him and by giving him mental torture had obtained signatures on some papers and accordingly he has been falsely implicated in the offences under the N. D. P. S. Act. The learned Additional Sessions Judge dealing with the submission flowing from this document, has concluded that the accused did give his statement voluntarily in as much as he had the opportunity to express himself before the learned Magistrate before whom he was first produced. Reference in this connection had been first made to the arrest memo Exh. 54 dated 11-2-1989 and production memo Exh. 55 of the same date. The order which has been passed by the learned Magistrate of the 6th Court, Ahmedabad would indicate that the accused was produced before him at his residence at 10-15 p. m. by A. M. Maulavi, Custom inspector and that the learned Magistrate heard the accused. Thus, on 11-2-1989 itself the accused had an opportunity to make grievance about any sort of pressure or threatening or inducement before the learned Magistrate before whom he was produced. The submission in this respect is that the accused was given to understand that he was being taken to the superior officer and the accused did not know that he was being produced before the Magistrate. We need not enter into the correctness of this allegation on the part of the accused, since the accused, even if he knew that he was being produced before the superior officer, could have made complaint before such superior officer about any ill-treatment of the kind alleged by him before such superior officer. We have no reason to disagree with the learned Additional sessions Judge in holding that the grievance made by the accused as aforesaid was an afterthought. In the present case, as stated above, the prosecution has adduced evidence which lend support to all the parts of prosecution story. It is only the modus operandi for transporting the offending substance that has come out from the accused. Even the accused has not disputed his possession of the books in question at the relevant point of time. The fact that he had been operating as an agent for number of years and the fact that he had been in association with the aforesaid other conspirators for a considerably a long period would indicate the course of conduct on the part of the accused. He was free to come out with a defence that he had at no point of time any occasion to know about the contents of the books, but in fact he has come out with a case that main conspirators were the aforesaid other persons and he was merely communicating the books, of course with the knowledge that they contained the offending substance in question, for some remuneration or for some service which he was getting from the aforesaid conspirators. It is thus clear that the prosecution evidence as enumerated hereinabove would lead to how the accused was seeing to the transfer of the offending books containing the offending substance. Whether a confessional statement was voluntarily made or not is essentially a question of fact and this is a settled proposition of law. If necessary reference may be made to a decision of the Honble Supreme Court in the case of k. T. M. S. Mohd. v. Union of India, reported in 1992 Cri. LJ 2781. Reading of para 33 of the citation would make it clear. We would like to refer to the observations made therein :-"33. We think it is not necessary to recapitulate and recite all the decisions on this legal aspect. But suffice to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Custom Authorities or the officers of Enforcement under the relevant provisions of the respective Acts is a sine qua non to act on it for any purpose and if the statement appears to have obtained by any inducement, threat, coercion or by any improper means that statement must be rejected brevi manu. At the same time, it is to be noted that merely because a statement is retracted, it cannot be recorded as involuntary or unlawfully obtained, it is only for the maker of the statement who alleges inducement, threat, promise, etc. , to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, threat, etc. , against the officer who recorded the statement, the authority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in atleast subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any Court intending to act upon the inculpatory statement as a voluntary one should apply its mind to the retraction and reject the same in writing. (Emphasis supplied)

(10) THE voluntary nature of the evidence contained in the confessional statement can be judged from the internal evidence of the document itself as also from other prosecution evidence disclosing such facts and circumstances as would reveal or lead to the truth of the facts stated in the confessional statement. As stated above, in the present case also the prosecution has not merely rested on the first and/or the second confessional statement as aforesaid, but has relied upon the other pieces of evidence which have been dealt with by the learned Additional Sessions Judge in his impugned judgment. The second statement which has been called in question by the learned counsel for the accused speak for itself and discloses such facts as would proceed only from the accused, who was in knowledge of such facts. This is over and above the fact that other facts leading to the transactions in question stand supported by the aforesaid pieces of evidence. We need not take ourselves to the evidence of the witnesses which have been referred to hereinabove. The fact remains that the learned additional Sessions Judge can hardly be said to have committed any error in placing reliance upon Exh. 36 and in coming to the conclusion that the said statement was voluntarily made.

(11) LEARNED Addl. Standing Counsel for the Central Government has placed reliance upon a decision in the case of Poolpandi v. Superintendent, Central Excise, reported in AIR 1992 SC 1795 [LQ/SC/1992/411] , answering the submissions made by Mr. Barot, learned Counsel for the appellant, in respect of how the accused was in the company of Custom Authorities right from 9-2-1989 to 11-2-1989. We need reproduce what has been said by the Apex Court in para 6 of the citation :-

"cl. (3) of Art. 20 declares that no person accused of any offence shall be compelled to be a witness against himself. It does not refer to the hypothetical person who may in the future be discovered to have been guilty of some offence. In Romesh chandra Mehtas case (AIR 1970 SC 940 [LQ/SC/1968/323 ;] ">AIR 1970 SC 940 [LQ/SC/1968/323 ;] [LQ/SC/1968/323 ;] ) the appellant was searched at the Calcutta airport and diamonds and jewelleries of substantial value were found on his person as also currency notes in a suit-case with him, and in pursuance to a statement made by him more pearls and jewellery were recovered from different places. He was charged with offences under the Sea Customs Act. During the trial, reliance was placed on his confessional statements made before the Customs Authorities, which was objected to on the ground that the same were inadmissible in evidence inter alia in view of the provisions of Art. 20 (3). While rejecting the objection, the Supreme Court held that in order that the guarantee against testimonial compulsion incorporated in Art. 20 (3) may be claimed by a person, it has to be established that when he made the statement in question, he was a person accused of an offence. Pointing out to the similar provisions of the Sea Customs Act as in the present Act and referring to the power of a Custom officer, in an inquiry in connection with the smuggling of goods, to summon any person whose attendance he considers necessary to given evidence or to produce a particular document the Supreme Court observed thus (at p. 945 of AIR) :"the expression "any person" includes a person who is suspected or believed to be concerned in the smuggling of goods. But a person arrested by a Custom officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Art. 20 (3) of the Constitution. The steps taken by the Customs officer are for the purpose of holding an enquiry under the Sea Customs Act and for adjudging confiscation of goods dutiable or prohibited and imposing penalties. The Customs Officer does not at that stage accused the person suspected or infringing the provisions of the Sea Customs Act with commission of any offence. His primary duty is to prevent smuggling and to recover duties of customs when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea Customs Act, he is not accusing the person of any offence punishable at a trial before a Magistrate. "the above conclusion was reached after consideration of several relevant decisions and deep deliberation on the issue, and cannot be ignored on the strength of certain observations in the judgment by three learned Judges in Nandini Satpathys case (AIR 1978 SC 1025 [LQ/SC/1978/131] ) which is, as will be pointed out hereinafter, clearly distinguishable. "

(12) EVEN under the provisions of the N. D. P. S. Act the Custom Authorities are not the Police Authorities. Reference in this connection may be made to the decision of the Apex Court in the case of Raj Kumar Karwal v. Union of India, reported in air 1991 SC 45 [LQ/SC/1990/171] .

(13) IT is no doubt true that the accused was in the company of the Custom officers right from 9-2-1989 upto 11-2-1989, but the accused was under a summons for giving the statement with regard to what he knew about the transactions in question. The summons which was issued for requiring him to remain present before the concenred Custom Officers was under S. 108 of the Customs Act as also under s. 67 of the N. D. P. S. Act. It is only after his statement was recorded the Custom authorities had material with them for arresting him, i. e. , the accused. That is how he came to be arrested later on, on 11-2-1989 and produced before the Magistrate as stated above. Besides, the retraction from confession as contained in Exh. 36, vide Exh. 47, contains general and vague allegations using the words beating, threatening and inducing. It does not contain any particulars. No complaint has been made by the accused at the earliest as stated above. For these reasons as well as reasons stated above, on facts we are not in a position to accept the submissions of Mr. Barot, learned Counsel for the appellant in respect of the second statement Exh. 36.

(14) THUS, in the facts of the present case, we are not inclined to accept the submission of Mr. Barot, learned Counsel for the appellant that the statement Exh. 36 which was retracted by the accused as aforesaid could not be said to be voluntary.

(15) MR. Barot has frankly submitted that he has no other submissions to make or press in this matter. While dealing with the submissions made by Mr. Barot we have borne in mind the provisions of the N. D. P. S. Act, one of which would indicate that it is for the accused to explain his possession of the offending substance. We have also borne in mind the salient object behind the provisions of the N. D. P. S. Act, which can be described in the words of Cicero from the Times Quote "the good of the people is the chief law. "

(16) IN the above view of the matter, we express our inability to accept the submissions canvassed on behalf of the appellant against the impugned judgment and order of conviction and sentence as aforesaid.

(17) BEFORE we conclude we may state and express our hope that this case will provide an eye-opener for the overseas passengers. We accordingly dismiss this appeal. At the request of Mr. Barot, learned Counsel for the appellant, the appellant has been granted time up to 16-2-1989 on which date the accused will surrender for serving balance of his sentence.