JUDGMENT
P.K. Patra, J.
1. The appellant has challenged the judgment dated 12.7.1996 passed by Shri P. C. Patro, Sessions Judge, Puri in S.T. No. 18 of 1994 convicting him under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “the Act’) and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000.00 in default to undergo rigorous imprisonment for further period of six months.
2. Prosecution case runs as follows :
On 15.1.1994 at about 9 p.m. while the S.I. of Town Police Station. Puri (P.W.2) accompanied by another S.I. of the said Police Station (P.W.5) and Havildar (P.W.4) proceeded to Para Nolia Sahi for investigation of Town P.S. Case No. 3/94, on the way found the appellant coming from the opposite direction. P.W.2 detained the appellant on suspicion and interrogated him. After observing the formalities of search, he searched the person of the appellant and recovered a paper packet containing heroin, one twenty-five paise coin, one jerry bag and napkin and seized the said articles under the seizure-list Ext. 1 On weighment the paper packet containing brown sugar weighed 300 Mgs. He drew two samples of the seized brown sugar, each weighing 50 mgs and sealed the said two sample packets and the balance quantity of 200 Mgs. of heroin kept in another packet. Since the appellant could not show any authority to possess heroin, he was arrested and taken to the police station. P.W. 2 prepared a plain paper FIR (Ext. 2) and after returning to the police station he registered the case under Section 27 of the Act and directed P.W.5 to take up investigation. On the next day, i.e., 16.1.1994, P.W.5 forwarded the appellant to Court and on 18.1.1994 prayed before the Court for sending the sample of the seized contraband article to S.F.S.L., Bhubaneswar for chemical examination and the S.D.J.M., Puri sent the sample packet for chemical examination, vide his forwarding letter Ext. 4. On 28.9.1994 P.W.5 handed over charge of the case to the Officer-in-charge of the Police Station, who in his turn directed P.W.3 to complete the investigation and submit charge-sheet. P.W.3 after receipt of the chemical examination report (Ext.5) confirming that the sample was heroin, completed the investigation and submitted charge-sheet against the appellant under Section 21 of the Act. The learned Sessions Judge framed charge against the appellant under Section 27 of the Act and the appellant stood his trial. The appellant has been convicted under Section 21 of the Act though he had been charged under Section 27 of the Act.
3. The plea of defence is one of denial.
4. In order to bring home the charge against the appellant prosecution has examined five witnesses of whom P.W.2 is the S.I. of the Police who detected the case, P.W.5 is the investigating officer, P.W.I is a goldsmith who weighed the contraband article and has stated about drawing two samples of the said article each weighing 50 Mgs. P.W.3 has stated to have taken up charge of investigation from P.W.5 and to have submitted the charge-sheet in the case. P.W.4 is the Havildar of the police station who had accompanied P.W.2 when the case was detected. The defence has examined none. Relying on the statements of P.Ws. 2, 4 and 5. the learned Sessions Judge found the appellant guilty and convicted him.
5. Mr. P. K. Rath, learned counsel appearing for the appellant and Mr. R. K. Patnaik, learned Addl. Standing Counsel for the State, were heard at length. Mr. Rath assailed the impugned judgment contending that the learned Sessions Judge has failed to appreciate the evidence on record properly and has erred in law in holding that there was no breach of the mandatory provisions of the Act and that the conviction of the appellant under Section 21 of the Act is illegal and unsustainable in law as he stood his trial for the offence under Section 27 of the Act. Mr. Patnaik supported the impugned judgment contending that the finding of the learned Sessions Judge is not erroneous and he has not committed any error of law rejecting the contention of the defence counsel and in convicting the appellant under Section 21 of the Act. The rival contentions require careful consideration.
6. In this case though the case has been registered under Section 27 of the Act. the investigating officer after completion of investigation has submitted charge-sheet under Section 21 of the Act for illegal possession of 300 Mgs of heroin, and the learned Sessions Judge framed charge under Section 27 of the Act instead of framing charge under Section 21 of the Act. In para 10 of his judgment the learned Sessions Judge has discussed as to why the appellant has been convicted under Section 21 of the Act instead of Section 27 observing as follows :
“When the witnesses have been examined at length and the accused is aware of the charge that he was proceeded upon for being in illegal possession of heroin, 1 am of the view that non-framing of charge under Section 21 of the Act does not prejudice the accused in any way.”
He has referred to the Notification bearing No. SO-827 (E) dated 14th November, 1985 and the table mentioned at page 133 of the Act written by S. Sudhakar Rao, which provides that 250 Mgs will be treated as small quantity in respect of heroin or drug commonly known as brown sugar or smack. In the present case, the quantity of heroin seized from the appellant being 300 Mgs, it could not be considered to be small quantity. After finding that, the learned Sessions Judge ought to have altered the charge as provided under Section 216 of the Code of Criminal Procedure and ought to have ordered a de novo trial and given opportunity to the appellant for further cross-examination of the witnesses. Instead of doing that, he convicted the appellant under Section 21 of the Act which provides for higher punishment than the punishment provided for Section 27 of the Act. While Section 21 of the Act provides for punishment with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may be extended to two lakh rupees, Section 27 provides for punishment (a) for imprisonment for a term which may extend to one year or with fine or with both, and (b) imprisonment for a. term which may extend to six months or for fine or with both. So the charge framed against the appellant under Section 27 of the Act is evidently defective and his conviction under Section 21 of the Act which provides for higher punishment is contrary to law and cannot be sustained and the impugned judgment can be reversed or set aside keeping in view the provisions of Section 465 of the Code of Criminal Procedure. The above view finds support from the decision in Susil Lugun v. State of Orissa, reported in (1990) 3 OCR 405, wherein a Division Bench of this Court referring to an earlier decision of the Calcutta High Court in Madhusingb v. Emperor, reported in AIR 1933 Calcutta 294, held as follows :
“It is no doubt true that where an accused has been charged for a graver offence, but on evidence the offence is not made out and a lesser offence is found to have been established, the Court would be within its jurisdiction to convict the accused for such lesser offence, the principle being that no prejudice is caused thereby to the accused. But where the evidence disclosed some other unconnected offence than for what the accused has been charged to have been committed, he cannot be convicted therefor without there being a specific charge for the same. Also if an offence graver than the one charged appears to have been committed, a conviction therefor cannot ensue, he having not been charged therefor. Such view is based upon the principle that accused having not been called upon to answer charge, the prejudice to him would be presumed.”
7. However, instead of remitting the case back to the trial Court for altering the charge and holding de novo trial, it is to be considered whether the appellant can be convicted under Section 27 of the Act or he will be entitled to acquittal. P.W.2 has stated that the appellant was found in front of Barabati Jaga main gate at Sitalkunda Lane and was detained on suspicion and after observing the formalities of search, he (P.W.2) searched the person of the appellant and seized 300 Mgs of heroin from him kept in a polythene packet along with a twenty-five paise coin and other articles, under the seizure-list Ext. 1. The seized heroin was weighed by P.W. 1. Two samples were drawn from the seized heroin, each weighing 50 Mgs. The two sample packets and the third packet containing the balance quantity of 200 Mgs of heroin were sealed by using the brass seal of the Town Inspector, Puri, who had been called to the spot as per option of the appellant to be searched in presence of a gazetted officer. The brass seal was handed over to witness Jayakrushna Patra who has not been examined in the case. The appellant was arrested and taken to the police station. P.W.5 has stated that he kept the seized articles in the P.S. Malkhana and forwarded the appellant to Court on 16.1.1994, but he has not stated about production of the seized articles in Court and has stated that on 18.1.1994 he prayed before the Court for sending the sample of seized heroin for chemical examination and the sample was sent for chemical examination with the forwarding letter of the S.D.J.M., Puri dated 30.3.1994 (Ext.4). Hence there was a gap of two and half months in sending the sample for chemical examination. Ext. 5 is the chemical examination report dated 15.7.1994 which revealed that the sample was heroin.
8. Thus it is found from the statements of P. Ws. 2 and 5 that the option of the appellant to be searched in presence of a gazetted officer waiving his right to be searched in presence of a Magistrate has not been reduced to writing and that the facts regarding search, seizure and arrest have not been reported to the immediate superior official and that there was delay of two and half months in sending the sample for chemical examination and that the sample packets and the other seized articles had been kept in the P.S. Malkhana during the period and that the brass seal used for the purpose of sealing the sample packets and other packet was not produced in Court and the seizure witness to whom the seal was handed over has not been examined and the above circumstances do not exclude the possibility of tampering with the seals put on the sample packets. Besides, no independent seizure witness has been examined in support of the prosecution case and also the Inspector of Police in whose presence the contraband article was allegedly seized from the possession of the appellant has not been examined in support of the prosecution case. P.W.I, the goldsmith, has stated that he was called to the Puri Town Police Station where he weighed the packets and that the seizure-list was prepared at the police station and he signed on the said seizure-list. This statement of P.W. 1 contradicts the statements of P.Ws. 2 and 5 that search, seizure and weighment were effected at the spot.
9. For the reasons stated above, it will be quite unsafe to place reliance on the statements of P.Ws. 2 and 5 to hold that the contraband article was seized from the conscious possession of the appellant and it will be hazardous to convict the appellant.
10. In the case of Krushna Dora v. State, reported in (1994) 7 OCR 590, it was held that it was obligatory on the part of the prosecution to establish by cogent and reliable evidence that the accused was in exclusive and conscious possession of the contraband article and the prosecution evidence in that case being found to be miserably lacking in that respect the accused was entitled to acquittal.
In Jadumani Sahu v. State, reported in 1997 (3) Crimes 486, it has been held that when search of a house was effected after information was received and opium was recovered, it was obligatory for the official to take down such information before proceeding to search the house and breach of the mandatory provisions of Section 42 (1) and (2) of the Act in that case vitiated the trial and conviction was held to be unsustainable.
In Thandi Ram v. State of Haryana, reported in JT 1999 (3) SC 231, the apex Court, referring to two earlier decisions in Mohinder Kumar v. State of Panaji, Goa, reported in AIR 1995 SC 1157 and State of Punjab v. Balbir Singh, reported in JT 1994 (2) 108, have held that for non-compliance of the mandatory provisions of Sections 50, 52, 55 and 57 of the Act conviction of an accused cannot be sustained and the accused would be entitled to acquittal.
11. Keeping in view the decisions referred to above and on an analysis of the evidence on record, the appellant cannot be convicted and will be entitled to acquittal. The impugned judgment convicting the appellant and sentencing him as stated earlier is therefore liable to be set aside.
12. In the result, the Criminal Appeal is allowed. The judgment dated 12.7.1996 in S.T. No. 18 of 1994 is set aside. The appellant is found not guilty and is acquitted of the charge. The appellant be set at liberty forthwith if his detention is otherwise not required in any other case.