Statements recorded under Section 108 of the Customs Act cannot be equated with statements under Section 67 of the NDPS Act, and strict compliance with the NDPS Act is necessary in conducting investigations.

A.S. Gadkari, J.

1. The appellant, Assistant Collector of Customs, the original complainant has preferred the present appeal against the impugned judgment and order dated 28th September 1993 passed in N.D.P.S. Special Case No.1233 of 1988, thereby acquitting the respondent nos.1 and 2 from the offences punishable under Sections 29, 21 read with Section 8(c) and under Sections 30 read with 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) and under Section 135(A) of the Customs Act, 1962 (for short Customs Act).

2. The facts which give rise and are necessary to decide the present appeal can briefly be stated thus:

(i) That on 27.2.1988, the officers of the Customs Department were informed by their Additional Collector Shri L.D. Arora and the Superintendent Mr. T.S. Jayaram (PW No.4) to remain present in the office, as some secrete information was to be worked out. In pursuance of the said information, the raid was to be conducted at a godown situated at Kharodi Village No.1, Malad Marvey Road, Mumbai-400095. After receipt of the said information, a warrant to search under Section 105 of the Customs Act was issued by Shri S.R. Datta, the Assistant Collector of Customs, Preventive Department, Mumbai for raiding the said premises i.e. godown at Mumbai-400095. The said warrant which was issued under Section 105 of the Customs Act was for the specific reason to search the premises, as there were reasons to believe that prohibited and dutiable goods liable for confiscation and the documents and things lying therein were to be searched. In pursuance of the said search warrant, the raiding party went near the godown premises between 11.05 p.m. to 11.15 p.m. on the same date i.e. on 27.2.1988. The raiding party called two persons from the locality to act as panchas. They noticed that the said place was open godown and with tin walls without any gate or lock. There were three persons inside the said godown and they gave their names as Khalil Ahmed, Nasiruddin Ahmed and Majid. After enquiry it was revealed that the said three persons were employees of the owner of the godown namely Mr. Mustafa.

(ii) The search warrant was shown to the said persons who were present in the said godown and thereafter the process of search of the premises of the said godown was undertaken. There was no electric light in the said godown. With the help of torches the raiding party conducted search of the said premises. The members of the raiding party found that there was wall created from stacks of gunny bags containing empty bottles of about five feet in height and beyond the said wall a space was created of about 15 feet by 10 feet in dimension. In the said space the raiding party found gunny bundles and polythene packages. There were in all sixty four packages i.e. gunny bundles and polythene packages. On cursory examination the raiding party found slabs of dark brown colour which were having pungent smell. The raiding party suspected that it may be a Canabis Resin (Hashish). At the said place the detail examination of the packages was not carried out as the space was found to be insufficient for the same. The raiding party arranged a private motor lorry from Manori village and the said sixty four packages were loaded in that lorry in presence of panchas and three occupants/employees of the godown and were brought to the New Customs House at Ballard Estate, Mumbai.

(iii) After reaching the New Customs House at Ballard Estate, Mumbai all the sixty four packages were taken to the 12th floor of the Customs House Annexe Building, Ballard Pier. On examination of the said sixty four packages were found to be containing 1754 slabs of dark brown substance. That each of the slabs was found wrapped in cellaphane paper. The Customs Officers also recovered 4250 pieces of lamb skins. The samples of the said dark brown substance slabs were subjected to preliminary test with the field testing kit and the said test showed positive resul