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2.2. On the next day, i.e., 21.7.1994, P.W.1 and other BSF officers reached Koteshwar Jetty around 9 A.M. and alighted there from the boat alongwith them. During the inquiry made by P.W.1 with them, he informed them that if they give information regarding smuggling or some illegal activities which may be known to them, they would be released. Thereupon they told that if they were to be released they would show something to the BSF personnel. Thereupon, Husen Malad, A-1 was taken in the BSF Boat with PW 1 and they went in creek area. As per information given by A-1 the boat was taken to Vaniya Vadi creek area where he showed Charas secreted in mud which was recovered. Thereafter around 5 P.M. PW -1 and other BSF officers came back to BSF Camp at Koteshwar with charas. In the BSF camp P.W.1 instructed his subordinate Inspector Tulshasing to inform the fact of recovery of Charas to the Inspector of Customs. Accordingly, this fact was informed to the Customs Department and pursuant thereto Sanjay Baviskar, Customs Inspector and N.C. Bildani, Customs Superintendent came alongwith panch witnesses.Muddamal Charas was thereafter seized after following due procedure and after making panchnama in presence of Panchas. During the aforesaid procedure, police from Narayan Sarovar Police Station reached there and they were handed over to Narayan Sarovar police on 21.7.1994 itself.

14. Now adverting to the evidence of P.W.4, Superintendent of Customs, N.C. Bildani recorded at Ex. 28 it is seen that on 21.7.1994 at about 5.30 P.M. a person from BSF Camp came to give a message regarding recovery of Charas by BSF. He was informed by Tulshasing that BSF personnel took A-1 to the spot where Charas was secreted and came back with Charas. On sample covers he put his signature. He also identified his signature on Muddamal cover. Panchnama and seizure procedure was carried out in his presence and he submitted seizure report on 22.7.1994 to Assistant Commissioner of Customs, Bhuj. On 24.7.1994 he wrote a letter to FSL, Ahmedabad and the said letter as well as sample were taken to Ahmedabad by himself. On 6.8.1994 he received letter from D.S.P., Kachchh at Bhuj in which it was stated that Customs Department should take the custody of the accused from Nakhatrana Jail. On 7.8.1994 custody of the accused was obtained and thereafter statements of accused were recorded under section 67 of the NDPS Act and 108 of the Customs Act. He put his signature beneath the same. On 8.8.1994 he prepared arrest memo and thereafter the accused were produced before the learned Chief Judicial Magistrate and remand was sought. Thereafter further statement of A-1 and A-2 was recorded on 8.8.1994 and 9.8.1994 respectively. On 12.9.1994 he informed the Executive Magistrate, Bhuj about the Charas.The Executive Magistrate came and inventory of the recovered Muddamal was made. The inventory contained hand writing of the Executive Magistrate and himself. Thereafter he was transferred and in his place one Joshi who took charge filed complaint on the basis of the inquiry papers. In cross-examination he unequivocally stated that he had explained the accused about the provisions of Section 108 of the Customs Act and Section 67 of the NDPS Act before recording their statements. It may be appreciated that nothing substantial has been brought out by the defence during cross-examination of P.W.1 and P.W.4 which is capable of raising a doubt on their oral testimony, their presence and the procedure which they have undertaken. According to us, both P.W.1 and P.W.4 withstood the test of cross-examination.

19.1. This contention, according to us, appears to be absolutely feeble as it is without any basis. From the evidence of P.W.3 (Panch witness) and P.W.4 (Officer of Customs Department) presence of P.W.1 is established. It may be noted that so far as the oral testimony of the witnesses are concerned, they are consistent in saying that at the relevant time they all were together. Therefore, this contention is required to be rejected and accordingly it is rejected.

20. The third contention canvassed by learned advocate for the accused is that information regarding recovery of Charas should have been given to the nearest police station and complaint ought to have been given to the police or Magistrate immediately. It is also canvassed by him that BSF has no power to entrust the muddamal to Customs Department and, therefore, adverse inference should be drawn against the prosecution. It is contended that Muddamal should have been handed over to the concerned police officer for safe custody under Section 55 of the NDPS Act as the Customs Department is not entitled to keep the muddamal with them.

20.1. According to us, the aforesaid contention raised by Mr. G. Ramakrishnan, learned advocate for the accused, is contrary to the provisions of NDPS Act. Under the provisions of Sections 36A and 42 read with sections 67 and 53 of the NDPS Act, the Central Government has issued Standing Order Nos. 822 (E), Standing Order No. 823 (E) and Standing Order No. 763 (E) empowering the officers of Customs, Central Excise, D.R.I. etc., to carry out search, seizure, to file complaint and to exercise same powers of "officer in-charge of police station" as available under the Code. In view of this, BSF is entitled to give information regarding recovery of Charas to any of the empowered agencies and the requirement of law is not that the said information should be given to the State Police only. It is relevant to note that from the facts disclosed by the accused in their statements recorded under Section 67 of the NDPS Act and under Section 108 of the Customs Act, it is very clear that the muddamal Charas was imported into Indian Territory from Pakistan without any valid licence or permit. It is also disclosed in their statements that on one occasion a part of Charas brought into Indian Territory from Pakistan was exported (transported) by the accused to Pakistan illegally. Thus, essentially the case was pertaining to illegal export and import. In such a circumstance, the Customs Department is the only appropriate Department to whom the information should be given and BSF has rightly done so in informing the Customs Department and handing over the muddamal to Customs Department. The Customs Officers are entitled to keep the seized goods in safe custody at their own godown or head quarters and there is no illegality in handing over and retaining the said goods by the Customs Department. Thus the contention that the muddamal article should have been kept by the police in safe custody under Section 55 of the NDPS Act is without any merit and hence the said contention is also rejected.