JUDGMENT
J.N. Patel, J.
1. The appellants by this appeal challenge their conviction, and sentence for having committed an offence under Section 21 of the N.D.P.S. Act under which they are ordered to undergo Rigorous Imprisonment for 10 years and to pay fine of Rs. 1,00,000 in default to undergo R.I for 2 years by the impugned judgment of the Special Judge, N.D.P.S., Nagpur delivered on 6.4.1994 in Special Criminal Case No. 40/93.
2. In nutshell the prosecution’s case is that on 12.3.1993 while Shri G.M. Sakharkar, A.P.I., N.D.P.S. Cell, Crime Branch Nagpur was patrolling within jurisdiction of Police Station, Kotwali, he received an information through Special Informer that in front of Chitnispura Police Chouki two persons are indulging in selling Gard (Brown Sugar). On receiving such information he made a report to A.C.P. Pararaskar and called for two Panchas and went to the place; there they found that accused Anya @ Anil Gaikwad and Sheshya @ Sheshrao Suryavanshi were present. They were accosted by the Police party and informed that the police party wants to search them as they have information that they are dealing in Gard (Brown Sugar); they were also informed of their right to be searched in presence of Gazetted Officer orally as well as by written intimation. As they declined to avail of their right the police officer carried out the search of these two persons near the Pipal tree behind the Hanuman Temple in front of Munshi Wada at Mahal. In the search of the accused Anya @ Anil Vasantrao Gaikwad the packets of Gard total weighing 1 gram was found in the right pocket as well as watch pocket of the fullpant on the person of the accused /appellant. Out of this 1 gram Gard a sample of 100 milligrams of Gard was taken out separately and sealed for sending it to Chemical Analyser for analysis and the remaining Gard was also sealed. 22 Pieces of papers from which the Gard was taken out were also seized separately. When the police party searched the accused Sheshya @ Sheshrao Sambhaji Suryavanshi, they found 8 small packets in the pocket of Shirt on the person of the accused containing total 100 milligrams of Gard (Brown Sugar), it was sealed for being sent to the Chemical Analyser for analysis and another parcel was prepared of pieces of paper packet from which Gard was collected and sealed. The search and seizure Panchnama was carried out, presence of the Panchas.
3. The two accused persons were then taken in the custody and they were brought to Police Station Kotwali, where Shri Sakharkar lodged a report with P.S.I. Shrivas who was the Day Officer and tendered the sealed parcel which were put in a sealed packet and handed over to P.S.I. Shrivas with a request that Head Constable Muddamal should send the two sealed parcels of 100 milligrams to the Chemical Analyser. Therefore, alongwith the report 5 duly sealed parcels copy of seizure Panchnama and C.A. Form was submited in the police station, P.S.I. Shrivas registered offence under Section 21 of the N.D.PS. Act vide crime No. 71 /93 of Kotwali Police Station and took the charge of the materials handed over to him.
4. Kotwali Police Station then despatched the sealed packet to the Chemical Analyser for obtaining his report. The Chemical Analyser’s report was received by the police station in which the result of the analysis showed that the two samples Exhibits 1 and 2 contained Heroin alongwith opium alkaloids. On completing the investigation the charge-sheet came to be filed against the accused persons in the Court of Special Judge, N.D.P.S. Nagpur. On 1st December, 1993, the learned Special Judge framed the charge against the appellants accused persons for having committed offences punishable under Section 21 read with Section 29 of the N.D.P.S. Act which reads as under:
That, above-named accused Nos. 1 and 2, on or about 12th day of March 1993, at about 2.45 p.m. at Mahal. Behind Hanuman Mandir, in front of Munshi Wada, Nagpur, were criminally conspired together to sell and found in possession of Gard (Brown Sugar), weighing 1 gram 100 mg. worth Rs. 1,100 for sale and thereby committed an offence punishable under Section 21 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, within my cognizance.
The appellants did not plead guilty and claimed to be tried.
5. The appellants accused had common defence that nothing was found with them and they have been falsely implicated in the case. The prosecution examined 5 witnesses which included the complainant A.P.I. Sakharkar, P.W. 3; P.W. 2, P.I. Shrivas who was the Day Officer and registered the offence against the accused; P.W. 5 Faiz Mohammed Panch in whose presence seizure Panchnama was drawn; HPC Charandas s/o Tukaram Layese P.W. 1; buckle No. 2727 who was entrusted with the sealed packets for forwarding it to Chemical Analyser who deputed Jiralal Narmada Prasad Dubey, Police Constable buckle No. 4555-P.W. 2 for the said purpose.
6. The learned Special Judge found that the prosecution has proved that on 12.3.1993 at about 2.45 p.m. accused Anya @ Anil Vasantrao Gaikwad was found in possession of one gram of Gard (Heroin) for sale and that accused No. 2 Sheshya @ Sheshrao Sambhaji Suryavanshi was found with 100 milligrams of Gard. But prosecution has failed to prove that accused Nos. 1 and 2 have abetted each other or they criminally conspired together to sell “Gard” and proceeded to convict and sentence the appellants accused accordingly.
7. It is submitted by Mr. M.R. Daga, learned Counsel for the appellants-accused that the whole trial is vitiated because the charge framed by the learned Special Judge was not proper. It is submitted that the learned Special Judge framed the charge against both the accused for having committed offences under Sections 21 and 29 of the N.D.P.S. Act which was misleading and it greatly prejudiced the accused persons in taking their defence. Once the prosecution failed to prove the charge as held by the learned Special Judge, the learned Special Judge ought to have acquitted the accused rather than convicting them under Section 21 of the N.D.P.S. Act. It is submitted that the offences under Sections 21 and 29 of the N.D.P.S. Act are two distinct offences and therefore, the learned Special Judge ought to have framed the two distinct charges for two distinct offences as contemplated under Section 218 of the Criminal Procedure Code. According to Mr. Daga, clubbing of the charges under Sections 21 and 29 of the N.D.P.S. Act has embarrassed the accused persons in their defence, because of which it has resulted in failure of justice. Mr. Daga submitted that the learned Special Judge came to a specific finding that the prosecution has failed to prove that the accused persons have abetted each other or they have criminally conspired to sell the Gard. Mr. Daga submitted that in the event the appellants accused were charged separately for having committed offence under Section 21 of the N.D.P.S. Act atleast the accused Sheshya @ Sheshrao Suryavanshi from whom it is alleged that 100 milligrams of Heroin has been seized, could have raised the defence available to him under Section 27 of the N.D.P.S. Act. As the Notification 12/85 dated 14.11.1985 clearly provides that in any case the person is found in possession of Heroin (Brown Sugar) weighing 250 milligrams he can establish that it was for his personal consumption, and his liability for punishment would be greatly reduced to a period of one year or fine or both as provided under Section 27(a) of the N.D.P.S. Act. It is therefore, submitted that the appellants accused were deprived of this opportunity particularly in the backdrop that the charge framed against both of them was common, as it reads that they criminally conspired together to sell and found in possession of Gard weighing 1 gram and 100 milligrams worth Rs. 1,100 and in case of possession of one gram and 100 milligrams is concerned this defence which is available to the appellants accused under Section 27 could not be availed of Mr. Daga, therefore, submitted that this Court should remand the matter back for retrial or atleast give the appellants accused an opportunity to take a plea available to them under Section 27 of the N.D.P.S. Act permitting accused Sheshya @ Sheshrao Suryavanshi to file his written statement in the case if this Court finds that it is not a fit case for remand and such a plea can be considered by the Court.
8. Mr. Daga submitted that there is one more lacuna in the prosecution’s case which goes to the root of the matter i.e. in respect of drawing of sample from the contraband seized from the appellants accused Sheshya @ Sheshrao. It is submitted that search and seizure Panchnama does not mention that any sample was drawn from the Gard alleged to have been seized from the accused Sheshrao. On the other hand, Chemical Analyser refers to such a sample. Mr. Daga submitted that this shows that the sample drawn at the time of search and seizure was only in respect of 100 milligrams from the seizure made from accused Anya @ Anil son of Vasantrao Gaikwad; whereas the sample which were sent to the Chemical Analyser and examined are two in numbers, therefore, the Court will have to draw an inference that the sample drawn at the time of search and seizure under the Panchnama Exhibit 20 was not the same which was sent to the Chemical Analyser as the number of samples differs. Mr. Daga further submitted that in the Chemical Analyser’s report, there is no reference that the Chemical Analyser has weighed the samples received by him and this also would show that the sample which was drawn at the time of seizure was not the sample which was sent to the Chemical Analyser. In support of his contention Mr. Daga has relied upon the case of Amina Abdul Shaikh v. State of Maharashtra, 1993 Mah.L.J. 1703 and Abdul Rashid v. State of Maharashtra 1992 (2) Crimes 362, and submitted that in view of these two decisions the prosecution’s case deserves to be rejected and the appellants be acquitted of the charge.
9. Mr. Daga further submitted that it has come on record that Panch Faiz Mohammad P.W. 5 is a habitual Panch and his evidence cannot be relied upon. It is submitted that a specific question has been put to A.P.I. Sakharkar P.W. 3 that Faiz Mohammad was Panch in Sessions Trial No. 203/1992 under the N.D.P.S. Act; though it has been denied by witness; it cannot be ruled out that this Panch was friend of Police and obliged them by giving evidence on behalf of the prosecution. It is therefore submitted that for want of proper charge, the discrepancy in the sample drawn and despatched to the Chemical Analyser and for examining a habitual Panch, the prosecution case becomes doubtful.
10. Mr Daga further submitted that the search and seizure made in the Panchnama Exhibit 20 was without complying with the mandatory provisions of Section 50 and therefore, the alleged seizure from the appellants accused stands vitiated. In sum and substance it is the submission of Mr. Daga that the prosecution has not proved the case against the appellants-accused and they deserve to be acquitted.
11. Mrs. Wandile, learned A.P.P. submits that the prosecution has established its case beyond reasonable doubt. The prosecution has proved the search and seizure carried out by A.P.I. Sakharkar by examining him as witness and Faiz Mohammad P.W. 5 one of the Panch in whose presence the Panchnama came to be prepared of seizure of Gard. In the search of accused No. 1/appellant No. 2 one gram Heroin came to be seized and from accused No. 2/appellant No. 1,100 milligrams Gard (Heroin) came to be seized. The Panch has supported the prosecution as regards the seizure and drawing of sample and sealing of the articles is concerned; it is submitted that the statement made by the accused persons that this Panch has appeared in Panch witness in the another case has been specifically denied; it was therefore, responsibility of the accused persons to bring on record some material to show that this Panch was habitual Panch; in absence of such material there is no reason to disbelieve the Panch Faiz Mohammad P.W. 5.
12. It is submitted that immediately after the search and seizure were carried out and Panchnama was prepared the accused persons came to be arrested and were taken to Police Station Kotwali; when P.W. 4 P.S.I. Shrivas who was the Day Officer had registered offence against the accused persons for having committed offence under Section 21 of the N.D.P.S. Act and took charge of the seized articles and the Chemical Analysis forms under which sample drawn from seizure made from accused No. 1 and the seizure made from accused No. 2 were directed to be despatched to the office of the Chemical Analyser for analysis of which Head Constable Charandas P.W. 1 had taken necessary care by making necessary entry and storing these articles. P.W. 1 Charandas thereafter deputed Police Constable Jiralal P.W. 2 to the Chemical Analyser’s office for handing over the articles. Jiralal P.W. 2 delivered the articles to the Chemical Analyser and took acknowledgment of the Chemical Analyser on the invoice challan Exhibit 16 which has been placed before the Court. Further Chemical Analyser’s report Exhibit 24 clearly supports the prosecution as the result of analysis shows that the two samples which were despatched to the Chemical Analyser contained Heroin. It is submitted that the contention of the learned Counsel for the appellants accused cannot be accepted as regards the discrepancy in the sample drawn from the seizure made and the one sent to the Chemical Analyser. It is submitted that in so far as the seizure of one gram Gard was concerned the Sample of 100 milligrams was drawn from it for the purpose of sending it to the Chemical Analyser; but in so far as the seizure of 100 milligrams from accused No. 2 appellant No. 1 is concerned, there was no necessity of drawing sample and the whole quantity was sent to the Chemical Analyser. It is submitted that nothing has been brought on record to show that there was any tampering of two samples despatched to the Chemical Analyser and as the prosecution has established all the links in the chain right from the drawing of the sample to its dispatch to the Chemical Analyser’s office and the report of the Chemical Analyser being positive the prosecution has sufficiently proved their case to sustain the conviction of the accused appellants under Section 21 of the N.D.P.S. Act.
13. It is submitted by Mrs. Wandile, the learned A.P.P. that no prejudice is caused to the accused persons from the manner in which the charge is framed. It is submitted that police officer on receiving information that two accused are going to come at a particular place for selling Gard, the police party arranged for Panchas and accosted the accused persons, and in their search found that both of them were carrying the contraband on their person in small packets and therefore, it cannot be said that there was no conspiracy between the two to commit the offence i.e. of possession and selling of contraband. It is submitted that both the appellants accused were well aware of the fact that they are being prosecuted for not only being found in possession of Heroin, but also its sale and therefore, their conviction under Section 21 of the N.D.P.S. Act cannot be faulted with as the charge of Sections 21 and 29 did include a charge against accused persons for having committed offence under Section 21 of the N.D.P.S. Act. It is submitted that the appellants accused were made well aware of the case against them not only by specifying in the charge Exhibit 4; but also by evidence of witness. It is submitted that Panchnama of search and seizure clearly indicates the quantity of contraband which was seized from each of the accused and shows they were well aware of it. It is further submitted that merely because they were tried on a charge of Sections 21 and 29 and the quantity of contraband was summed up in the charge as 1 gram and 100 milligrams, it did not prevent in any manner the appellants-accused Sheshrao @ Sheshya from taking a defence available to him under Section 27 of the N.D.P.S. Act. It is submitted that this is an afterthought and the appellants-accused are trying to take the advantage of the situation and in absence of any evidence on record that 100 milligrams of Heroin found in possession of the appellant accused Sheshya @ Sheshrao was for his personal consumption, his conviction and sentence under Section 21 of the N.D.P.S. Act is justified and can be maintained.
14. The learned A.P.P. cited the case of Deepak Ghanshyam Naik v. State of Maharashtra, 1989 Mah.L.J. 276, in which the Division Bench of this Court has clearly held that in case when the accused feels to have benefit of Section 27, the burden is on him to prove whethef the small quantity of contraband which was found in his possession was intended for his personal consumption and in that event he shall have got the benefit under Section 27 of the Act in respect of the punishment. Otherwise, once it is established that the accused was found in possession of Narcotic Drugs for sale or otherwise and for the purpose other than personal consumption, the minimum sentence of ten years’ imprisonment and a fine of rupees 1 lakh has got to be inflicted on him as provided under Section 21 of the Act. It is further submitted that the appellant-accused Sheshrao @ Sheshya has not made even a whisper in his statement under Section 313 of CrLP.C. that he was possessing contraband for his personal consumption so as to attract benefit provided under Section 27(a) of the N.D.P.S. Act. The appellant-accused also did not seek opportunity to lead evidence in this behalf so as to discharge his burden and therefore; now he cannot be permitted to raise this plea before this Court. lit these circumstances, it is submitted that the appeal deserves to be dismissed.
15. We have carefully gone through the record of the case, charge framed by the learned Special Judge, the evidence recorded, Chemical Analyser’s report and the documents produced in support of the prosecution with the active assistance of the learned Counsel for the appellants as well as the learned A.P.P. In our opinion in so far as the prosecution’s case against the appellants accused is concerned, is proved beyond reasonable doubt.
16. A.P.I. Sakharkar, P.W. 3 in his evidence has specifically deposed that on 12.3.1993 while he Was on patrolling duty within the jurisdiction of the Police Station Tahsil, Lakadganj and Kotwali and as he was attached to Special Narcotic Cell he was carrying with him sealing material, weights, measures, papers, carbon papers, blank C.A. forms etc. At about 1.30 p.m. while they were at Chitnispura Police Chowki they received information that two persons residing in Mahal area were selling the Gard Power Informant even gave particulars of the two persons as regards their names and descriptions which information he reduced in writing and made a report of it to his superiors. The said report is Exhibit 18 it was sent through Police Constable Naseem buckle No. 2528 to A.C.P. Paraskar, he called for two. Panchas, namely, Riyaz Ahmad and Faiz Mohammad P.W. 5 who were passing along the road nearby Chitnis Pura Police Chowki and disclosed to them the information received by him and apprised them of the facts of the case. Then he along with Panchas proceeded towards Munshi Wada, Mahal, where they noticed the accused persons who were identified by him before the Court and were found behind one temple near Munshi Wada, Mahal; he gave signal to his staff members in order to encircle accused persons. Accused persons tried to run away, but they were encircled. A.P.I. Sakharkar disclosed his identity and that of his staff members and Pancha witnesses were introduced to the accused persons. Names of accused persons were verified as per the information received. Accused persons were made aware of their right to be searched in presence of Gazetted Officer; they were also given a written intimation (Exhibit 9) about it on which accused No. 1 alleged to have signed and accused No. 2 scribed that he does not want to avail of the right and signed it. When the accused persons were asked to take search by raiding party, they refused. Then search of the accused persons was carried out. With the accused No. 1 one packet was found in watch pocket; another packet was found in his right side pant pocket; in the packet which was found in the watch pocket, there was brown coloured powder; in another pocket 22 small packets were found of newspaper sheet; the contents of 22 small packets of brownish colour powder and contents of another packet were taken together and measured; it was 1 gram. Out of this 100 milligrams was measured and taken as a sample. It was wrapped in a separate packet, remaining powder was also wraped in a separate paper. Signatures of Panch witnesses were obtained on the paper, sample was wrapped and on another paper in which remaining powder was wrapped and these packets were tied by thread and seal was fixed on those pockets. Another blank paper was taken it was signed by him and Panchas in which 22 paper sheets of newspaper were wrapped and sealed. In all three packets were prepared. Thereafter, search of accused No. 2 was taken. In shirt pocket 8 small packets were found to be containing 100 milligrams of powder: it was taken and wrapped in blank paper. Another blank paper was taken on which he alongwith Panch witness put their signatures which was wrapped over the packet containing powder and tied with thread and sealed. Another pocket was prepared in which 8 sheets of papers were wrapped and numbered as 1-B. This was also signed by all and sealed. He has specifically stated that the sample drawn from one gram powder seized from accused No. 1 as well as the contraband found with accused No. 2 came to be sent to Chemical Analyser and those packets were produced before the Court as article No. 1 and 1-B, respectively, bearing the name of the accused persons.
17. A.P.I. Sakharkar has further stated that after the Panchnama was drawn, signature of Panchas as well as the accused were taken on the Panchnama. Panchnama is Exhibit 20 before the Court. After the formalities were over, the accused Nos. 1 and 2 were apprised of the fact that brown sugar was found with them and they are put under arrest. The Panchas were allowed to go and he brought the accused persons to Chitnispura Police Chowki and were then brought to Kotwali Police Station in vehicle. At Kotwali Police station he filed written complaint and handed it over to P.S.I. Shrivas which is Exhibit 21 and was treated as F.I.R pursuant to which P.S.I. Shrivas registered offence vide crime No. 71/1993. Articles seized from the accused were handed over in sealed packet to P.S.I. Shrivas which were to be sent to the Chemical Analyser out which the articles which were to be sent to the Chemical Analyser were specified in the Chemical Analyser’s form, it was also handed over. On his job being completed A.P.I. Sakharkar filed report as required under Section 57 of the N.D.P.S. Act and sent it to A.C.P. Paraskar which is Exhibit 23. On receiving Chemical Analyser’s report Exhibit 24 and completion of investigation he filed charge-sheet. A.P.I. Sakharkar is supported on all counts by Panch witness P.W. 5 Faiz Mohammed; P.S.I. Shrivas P.W. 4 who was on duty as Day Officer at Kotwali Police Station. The prosecution by examining Head Constable Charandas P.W. 1 and Police Constable Jiralal P.W. 2 had established that the contraband seized from the accused persons were sent to the Chemical Analyser for analysis. The Chemical Analyser’s report Exhibit 24 clearly records that the Chemical Analyser has received two sealed parcels with seals intact which were containing Exhibit 1 brown coloured powder wrapped in paper labelled-Anya @ Anil Vasantrao Gaikwad and Exhibit 2 brown coloured powder wrapped in paper labelled-Sheshya @ Sheshrao Sambhaji Suryawanshi. Exhibit Nos. 1 and 2 were also lebelled Crime No. 73/93 bearing property No. 44/93 and the result of the analysis is – Heroin (Diacetylmorphine) in Exhibit Nos. 1 and 2 alongwith other opium alkaloids. Exhibit Nos. 1 and 2 fall under Section 2(xvi) of N.D.P.S. Act, 1985. Report is signed by MP. Kurhekar, Assistant Director, Regional Forensic Science Laboratory, State of Maharashtra, Nagpur-12.
18. We, therefore, find that the police officer has complied with the provisions of Section 50 of N.D.P.S. Act while taking search and causing seizure of the contraband from the person of the accused persons; we do not find any flaw in the prosecution case so as to create doubt in one’s mind that the appellants accused were not found in possession of contraband.
19. The only question which now requires our consideration is as regards the plea taken by Mr. Daga, learned Counsel appearing for the appellants accused, as to whether in the facts and circumstances of the case the appellants accused Sheshrao @ Sheshya son of Sambhaji Suryawanshi can be extended benefit of Section 27 of the N.D.P.S. Act. There can be no doubt that offences under Sections 21 and 29 of the N.DP.S. Act are two distinct offences and as required by Section 218 of the Criminal Procedure Code for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. Provided that where the accused person makes an application in writing so desirous and the Magistrate is of the opinion that such person is not likely to be prejudiced thereby the Magistrate may try together one or any number of charge against such persons. This section embodies a general mandatory rule for distinct charges there must be separate charge and a separate trial for such a charge. To this rule there are certain exceptions, which provide for a joinder of charges in circumstances which ensure against any prejudice being caused to the accused in his defence, owing to such joinder of charges. These exceptions are:
(i) Where the accused himself wants a joint trial, by an application in writing [Proviso to Sub-section (1)]
(ii) Joint trial for a joint charge in respect of not more than 3 offences of the same kind committed within a space of 12 months.
(iii) Joinder of charges and Joint trial for more offences than one committed by him by one series of act so connected together as to form the same transaction.
(iv) Joinder of charges and joint trial where it is doubtful which of several offences will be, constituted by a single act or series of acts, if proved.
(v) Joint charge and trial of several accused because of some basis connection between the offences committed by them, as enumerated in Clauses (a) to (g) of Section 233; or where such persons, though separately charged, themselves apply in writing for a joint trial.
The broad object underlying this section is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or separate charges are tried together.
20. Unfortunately in the present case, the prosecution or the accused persons did not seek amendment of charge so that separate charges could have been framed against the accused persons for having committed offences under Section 21 of the N.D.P.S. Act as well as under Sections 21 and 29 of the N.D.P.S. Act. As two offences one under Section 21 and the other under Section 29 were clubbed together a common charge was framed; the learned Special Judge by mentioning in the charge that the accused persons criminally conspired together to sell and were found in possession of Gard (Brown Sugar) weighing 1 gram and 100 milligrams worth Rs. 1,100 and thereby committed an offence punishable under Section 21 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985; in a way deprived the appellant accused Sheshrao @ Sheshya son of Sambhaji Suryawanshi a proper opportunity to put his defence and to adduce evidence if necessary to the specific charge under Section 21 of the N.D.P.S. Act for being found in possession of 100 milligrams of Heroin. This in our opinion though does not prejudice the accused person in their trial; but resulted in miscarriage of justice as he could not have pleaded defence available to him under Section 27 of the N.D.P.S. Act when he was made to face a charge of being in possession of 1 gram and 100 milligrams of Heroin. It is true that in his examination under Section 313 of the N.D.P.S. Act he was put a specific question No. 15. Further it is in his evidence that during the search of you accused Nos. 2,8 small packets containing 100 milligrams of brown colour powder was found. What do you want to say about this?
Answer: It is not true.
which shows that the appellant accused Sheshrao merely denied the possession of 100 milligrams of Heroin seized from his person.
21. Mr. Daga, learned Counsel appearing for the appellant-accused has submitted that in such a case, this Court has shown indulgence and accepted the plea of the accused and referred to the case of Ahamad Usman Bhattiwala v. State of Maharashtra 1993 Cri.L.J. 3264, in which the Court had observed that it is always open to the party to advance a defence that emerges out of a submission oft a point of law at the appellate stage, if that defence is available from the record of the trial Court. Mr. Daga submits that in another case of Ashok Asumal Bajaj v. State of Maharashtra 1993 Cri.L.J. 2818, this Court accepted the plea of the accused to extend benefit under Section 27 of the Act. Even though the contraband recovered from the accused was weighing 1 gram 950 milligrams when the accused in his statement under Section 313 of Cr. PC mentioned that he is addicted to consumption, of this particular material. As the said contraband was found in 8 pudis by observing that the amount of powder in each of the packets was very small that the only option available to the Officer was to seize the packets in the condition in which they Were. In the case, the Court went on to observe that in our considered view, once it had been pleaded that the small quantity that was found in possession of the accused is for personal consumption, it is open to the defence to contend that the burden of proof can be adequately discharged also from the facts, circumstances and material on record. In the present case, we do find that the quantity in each of the Pudis was measured out into eight small packets and there was no money found on the person of the accused which could possibly have been construed as being evidence of sale or distribution.
The investigation did not indicate that the accused either himself or as agent of some other person was drug peddler. In the absence of such material, and the fact that the drug was found in extremely small measured quantities would be sufficient for the purpose of indicating that it was for the personal consumption of the accused. If it was the prosecution case that the accused was involved in the activity of selling the drug, then it would have been essential that the investigation should have demonstrated some such activity on his part. The evidence of a person who has purchased the drug from him or to whom he had promised that he would procure the drug or for that matter, the inter-connection between him and any of the dealers are all material which the prosecution ought to have brought on record in support of the charge that the accused was involved in the act of sale. In absence of any such material, it would be impossible to hold that the prosecution has discharged this burden and, therefore, the defence contention that it was intended for personal consumption is rendered plausible, and therefore, he can be extended the benefit of Section 27 of the N.D.P.S. Act.
With due respect to the learned Judges we do not approve that in the facts of the case of Ashok Asumal Bajaj the appellant was entitled to benefit of Section 27 of the N.D.P.S. Act as total quantity of Gard Powder seized from him weighed 1 gram 950 milligrams. For the very reason that Notification No. 12/85 dated 14.11.1985 issued under Section 27 of the N .D.P.S. Act has quantified the amount of small quantity for the purpose of that section and in case of Heroin the quantity is 250 milligrams.
22. In the peculiar facts and circumstances of the case and specifically when it is the prosecution’s case that the contraband seized from the appellant accused Sheshya @ Sheshrao Suryawanshi was 100 milligrams and that due to the manner in which the charge came to be framed by the Special Judge he was not able to raise defence under Section 27 of the Act as it would have greatly embarrassed him and in the face of possibility of conviction under Sections 21 and 29 of the Act; treating this as an exceptional case we permit the appellant accused to raise this defence at this stage by allowing him to file his written statement as contemplated under Section 233 of the Cr. PC by way of affidavit rather than going into the lengthy procedure of amendment of charge and then permitting the parties to lead the evidence. Accordingly today the appellant accused Sheshya @ Sheshrao son of Sambhaji Suryawanshi has filed his affidavit in which he was specifically stated that he could not raise defence under Section 27 of the act because of the charge under Section 29 and has pleaded that 100 milligrams brown sugar found in his possession was for his personal consumption and that this may be considered as his defence and he may be extended the benefit of Section 27 of the N.D.P.S. Act. In view of the fact that during the trial the prosecution could not establish their case the accused appellant for having committed an offence under Section 21 read with Section 29 of the N.D.P.S. Act, we accept this defence and find that this is a fit case in which the benefit of Section 27 can be extended to the appellant-accused Sheshya @ Sheshrao son of Sambhaji Suryawanshi.
23. We, therefore, uphold the conviction and sentence of the appellant No. 2 (original accused No. 1) Anya @ Anil son of Vasantrao Gaikwad under Section 21 of the N.D.P.S. Act and the appeal filed by him is dismissed. In respect of the appellant No. 1 (original accused No. 2) Sheshya @ Sheshrao son of Sambhaji Suryawanshi, his conviction and sentence under Section 21 of the N.D.P.S. Act is converted to minor offence under Section 27(a) of the N.D.P.S. Act and is sentenced to undergo imprisonment for a period of one year and to pay fine of Rs. 1,000 in default to undergo imprisonment for a period of 3 months. In case, the appellant-accused Sheshrao @ Sheshya Sambhaji Suryawanshi has already undergone the sentence he shall be released forthwith if not required in any other case. The appeal is disposed of acordingly.
