JUDGMENT
V.K. Tahilramani, J.
1. Through this appeal, the appellant-orig.accused has challenged the judgment and order dated 30.12.2002 passed by the learned Special Judge (NDPS Act), Thane in Special Sessions Case No. 93 of 2002. By the said judgment and order, the learned Special Judge convicted the appellant-orig.accused for the offence punishable under Sections 20 & 22 of the Narcotic Drugs & Psychotropic Substances Act (for the sake of brevity, hereinafter called as NDPS Act) and sentenced him to suffer RI for 14 years and to pay fine of Rs. 2 lakhs, in default, RI for three years.
2. The prosecution case briefly stated is as under:
PI Ghule (PW-4) attached with Crime Branch, Thane received reliable information from a informant that on 13.12.2001 one Manipuri person wearing a faint green coloured half T-Shirt, black pant and brown shoes is likely to arrive at Mumbra and the polythene bag held by him contains cocaine. Necessary formalities under Section 42 (2) were complied with and the raiding party went to the spot with the informant. The accused came to be intercepted and contents of the bag came to be searched. According to the prosecution, 636 grams of cocaine was found in the bag. The samples were taken from the said bag. One sample was sent to the C.A. As per the opinion of the C.A. the sample contained heroin. After completion of investigation, charge-sheet came to be filed.
3. Charge came to be framed against the appellant for the offence punishable under Sections 20 & 22 of the NDPS Act. The appellant pleaded not guilty and claimed to be tried. The defence of the accused person is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Special Judge convicted and sentenced the appellant-orig.accused, as stated in para-1 above. Hence this appeal.
4. I have heard Mr.Ayaz Khan, the learned Counsel for the Appellant-orig.accused and Mr.Konde-Deshmukh, the learned APP for the State. I have also perused the impugned judgment and order as well as the record pertaining to the present case.
5. No contention has been raised regarding non compliance of any section or any mandatory section under the NDPS Act. Though Mr.Khan has raised various grounds, in my view, the present appeal deserves to succeed on the first ground raised by him. The ground putforth by the Counsel for the appellant is that the charge is framed under Sections 20 & 22 of the NDPS Act. The relevant portion of the charge reads that, the accused was found in conscious possession of net 636 grams cocaine in contravention of the provisions of Section 8 of the Narcotic Drugs & Psychotropic Substances Act and thereby committed offences under Section 20 and 22 of the N.D.P.S. Act. The appellant-accused has also been convicted under Sections 20 and 22 of the NDPS Act. Section 20 of the NDPS Act deals with cannabis which would be hashish or charas. The offence under Section 22 of the NDPS Act pertains to psychotropic substances whereas what has been found in possession of the appellant is heroin as has been noted in the evidence of the prosecution witnesses as also by the C.A. in his report Exh.34. Heroin is not a Psychotropic Substance but it is a Narcotic Drug. Heroin cannot be said to be covered by Section 20 or 22 of the NDPS Act.
6. It is basic that as far as the framing of a charge is concerned, not only should all material particulars be set out but, the provisions of law that are alleged to have been contravened must be clearly spelt out in the charge. This is an essential requirement for the reason that in a criminal trial where the accused is required to enter upon his defence, and where the consequences to the accused person are serious in so far as an adverse verdict would result in the loss of his liberty, no allowance can be made in respect of a charge that is found to be defective or wanting in material particulars. No doubt it is open to the Court at any subsequent stage of the trial to alter the charge, to give the accused a fair opportunity of meeting that charge and to thereafter pronounce judgment. However, in the present case the charge has not been altered or modified and the judgment has been pronounced. Thus, it is seen that wrong charge has been framed against the appellant and he has also been convicted under the wrong sections. Such a conviction cannot be allowed to stand and has to be set-aside.
7. In the result, the appeal is allowed. The judgment and order dated 30th December, 2002 passed by the learned Special Judge (N.D.P.S. Act), Thane in Special Sessions Case No. 93 of 2002 is set aside. The appellant- Pukhrambham Surchandsingh Ibohan Singh is acquitted of the offences punishable under Sections 20 and 22 of the Narcotic Drugs & Psychotropic Substances Act. Appellant is in jail. He be set at liberty forthwith if not required in any other case. Fine amount, if any, paid by the appellant shall be refunded to him.