Bhavasingh Rathod @ Bhavasinghbhai, the 4th accused in C.C.46/1992 on the file of the II Addl. Sessions Court, Ernakulam, has been found guilty under Section 20(b)(ii)(c), Section 25. Section 28, Section 29 and Section 30 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short the NDPS Act’ and also under Section 135A of the Customs Act, 1982. In short ‘the Customs Act’ and therefore was convicted and sentenced to undergo rigorous imprisonment for 20 years and to pay a fine of rupees two lakhs, in default to undergo simple imprisonment for two years for the offences under the NDPS Act, except Section 30 thereof. For which no separate sentence has been imposed; and to undergo simple imprisonment for three years, together with a fine of Rs.50,000/-, in default of payment of which to undergo further imprisonment for six months, for the offence under the Customs Act. The substantive sentences were directed to run concurrently.

2. The main contention of the learned counsel Mr. C.C. Thomas is that the conviction of the appellant is not legally sustainable as the conditions contained in Section 30 of the Indian Evidence Act has not been properly appreciated by the trial court.

3. The learned counsel Mr. P.S. Abdul Samad appearing for the prosecution submitted that though accused Nos.1, 2 and 7 were not jointly tried with the accused, the statements recorded by the investigating officer(s) under Section 108 of the Customs Act and under Section 67 of the NDPS Act can be used as a piece of evidence against the accused under Section 138B of the Customs Act and under Section 53A(a) of the NDPS Act respectively. Counsel also submitted, relying on the conduct of the accused, that he is a very influential person and, therefore, had prevented accused Nos.1, 2 and 7 from being apprehended and CWs.6 and 11, the drivers, from being apprehended and CWs.6 and 11, the drivers, from being brought before the court to tender evidence during the trial.

4. The brief facts required for disposal of this appeal, before entering into the question of law posed by both sides, are as follows:

The 3rd accused Kishore Singh met the 2nd accused Rameshadevji Shah, in connection with the export of cargo to U.S.A. Both went to the residence of the 4th accused. All the three confided. Thereafter, accused Nos.4, 5, and 6, along with another person called Kaka, hatched a criminal conspiracy for exporting Hashish to U.S.A. In furtherance of the conspiracy, accused 2 and 3 went to Bombay and met the first accused, seeking assistance for shipping the consignment to U.S.A. The latter agreed for the proposal. Accused Nos.2 and 3 returned to the house of the 4th accused. The latter expressed his willingness to help the other accused and Kaka, in their efforts to transship the consignment of Hashish to U.S.A. In furtherance of this conspiracy, accused Nos.1 to 3 visited Kochi and met PW.14 of M/s. Pillmen Agencies, for exporting Hashish to U.S.A. from Kochi. The first accused prepared the necessary documents to transship Hashish from Thane to Kochi and from Kochi to the United State of America. Accordingly, at the instruction of the first accused, Ext.P2 shipping bill was filed on behalf of M/s. Tharaporewala Engineers, Bombay, through M/s. Akhil Shipping Agencies, one of the customs house agents at Kochi, for export of the consignment to United States of America. Hundred bundles of galvanized steel fencing wire and 86 pallets of M.S. Grils, were declared. The name of consignee was declared as M/s. Custom Metal Designers, Ohio, U.S.A. CWs.6 and 11, drivers of Rajkot, Gujarat, had loaded the consignment in truck form the godown of the accused, and brought the same to Kochi and unloaded in the godown arranged by the 7th accused at Kochi. From there it was transported to Q7 shed at Ernakulam, Wharf, on 1-11-1989. As the shipping bill was filed before the customs officials on 15-11-1989 at about 4.30 P.M. on 16-11-1989 the shipping bill was presented by the