D.N. Prasad, J.
1. This Criminal Appeal is directed against the judgment of conviction and sentence passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'), whereby the learned Judge convicted the appellant under Section 20 of the Act and sentenced him to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs. 1,00,000/- in default of which he shall have to undergo further rigorous imprisonment of two-and-half years.
2. The case of the prosecution in brief is that on 9.8.1994, the informant. Bishwanath Singh, Hawaldar, while moving on patrolling duty near the market, he found one person named Sharwan Vishwakarma coming from house of one Ramkrishna. He called the appellant, who tried to flee away and thereafter, the informant chased and caught him. From the pocket of the accused/appellant, on search found one small packet of news- paper containing powder like Heroin. He also found one Panama Cigarette. On enquiry the appellant disclosed that he had purchased it from Santosh Kumar Singh on payment of Rs. 25/-. Accordingly, the seizure-list was prepared and the case was registered. The police investigated into the case and submitted charge-sheet against the accused/appellant.
3. The appellant appeared before the trial Court. Charge under Section 20 of the Act was framed, to which the appellant pleaded not guilty. The witnesses were examined. After hearing both sides and perusing the evidence on record, the trial Court convicted and sentenced the appellant in the manner, as stated above.
4. On being aggrieved from the judgment of conviction and sentence passed by the Court below, the appellant preferred this appeal claiming therein that the Court below committed error in convicting the appellant as there is no cogent evidence for the alleged recovery as well as the provision as laid down under Section 50 of the Act has not been complied with. It is also alleged that the small quantity of Heroin said to have been recovered and for which Section 27 of the Act is applicable whereas the appellant has been convicted and sentenced under Section 20 of the Act, which is not applicable in the instant case. It is also alleged that said small quantity of Heroin was for consumption and for which the appellant cannot be liable for conviction and as such the judgment of conviction and sentence passed by the Court below is fit to be set-aside.
5. The learned counsel appearing on behalf of the appellant, at the very out-set, submitted that the appellant has been convicted and sentenced under Section 20 of the Act, which is not applicable in the instant case as well as the provisions as laid down under Section 50 of the Act has not been complied with. It is also submitted that other accused Santosh Kumar Singh against whom there was similar allegation, has already been acquitted by the trial Court and the seizure-list was not prepared at the place of occurrence, rather the seized articles said to have been produced before the officer-in-charge. It is also submitted that the appellant has already remained in custody for about two years and he has suffered much for the alleged small quantity of Heroin.
6. PW 1 is one of seizure-list witnesses and he stated that the informant took him to the police station forcibly and got his signature on the soda paper. PW 2, PW 3, PW 4 and PW 5 have not supported the prosecution case as they have been declared hostile by the prosecution.
7. PW 6 is the informant, who claimed to have seized the Heroin from the possession of the appellant. He further deposed that he reported the matter to the police in writing (Ext. 2). PW 7 is said to be Investigating Officer. According to him, a puriya with small quantity of Heroin was seized along with one Cigarette packet.
8. The appellant was examined under Section 313, Cr PC and he denied the allegation.
9. It is apparent that the said Heroin was sent for chemical test to the Forensic Science Laboratory and it was found to be Heroin in the faint brown powder substance. It further appears that no trace of Heroin or any psychotropic substance could be detected in the extracts of Panama Cigarette. The Forensic Science report was marked as Ext. 5.
10. Obviously, PWs 6 and 7 supported the prosecution case about recovery of Heroin from the possession of the appellant and the report (Ext. 5) also corroborates the substance being Heroin. It is true that it was about 100 mg. of faint brown powder substance for which Section 27 of the Act is applicable in the instant case.
Section 20 deals about the punishment for contravention in relation to cannabis plant and cannabis and the brown-sugar is not the product of cannabis. However, it will come under Section 27 of the said Act, which deals about punishment for illegal possession in small quantity of any Narcotic drug.
11. No doubt, the said Heroin was recovered and seized from the possession of the appellant at the relevant time and accordingly, the seizure-list was also prepared and also the case was registered. The Chemical Report of Forensic Science Laboratory, Ext. 5, also supports about the said substance being Heroin. 12. In the above facts and circumstances, I find that the learned trial Court has rightly convicted the appellant but the appellant shall be convicted under Section 27 of the Act.
So far, sentence is concerned, the appellant has already been remained in jail custody from 11.8.1994 to 28.2.1995, 23.9.1997 to 18.3.1998 and 24.8.1998 to 6.11.1998 and as such the appellant remained in jail custody for more than one year, which will be suffice to meet the ends of justice in the instant case. Thus, the appellant is sentenced to the period already undergone.
13. The appeal is dismissed with the modification in sentence only. The appellant is already on bail. He is discharged from the liability of the bail-bonds. Appeal dismissed.