Chandra Mohan Prasad, J.
1. This appeal is against the order of conviction dated the 30th March, 1992 and sentence dated 31st March, 1992 of the 1st Additional Sessions Judge, East Champaran, Motihari passed in S.T. No. 80 of 1991 whereby the appellant has been convicted under Section 17 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter, in short, to be referred to as the 'Act') and sentenced to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. 1,00,000/- (Rupees one lac) and in default of payment of fine, further rigorous imprisonment for five years.
2. The case of the prosecution is that on 26th August, 1990, Krishna Mohan Verma, A.S.I. Excise (P.W. 3) along with excise Constables Siyaram Singh (P.W. 1) and Madan Ram (P.W. 2) came to the Tempo stand near Railway Gumti, Raxaul. They found appellant Bal Kishun Dangal in suspicious condition there. Then they conducted a search on his person and as a result of search, one paper PUDIA, containing 4 small PUDIAS containing smacks was recovered from the bottom folder of his trousers. The PUDIAS were kept concealed in the folder. After recovery, a seizure-list was prepared. The seizure-list in the writing and signature of P.W. 3 is Ext. 1. The seizure was made in presence of a public witness Arjun who also signed over it. His signature is Ext. 2/2. After seizure, the case was enquired into and then a prosecution report (Ext. 3) was filed. Sample of the recovered smacks was also taken and it was sent to the Office of the Director. Forensic Science Laboratory, Bihar, Patna. The report of the Director (Ext. 5) was received to the effect that heroin which is a diacetyl derivative of morphine was detected in the brown colour powder substance contained in the paper packet, i.e. the sample sent. After submission of prosecution report (Ext. 3), the appellant was put on trial and has been convicted and sentenced as above.
3. As many as five witnesses were examined by the prosecution. P.W. 3 Krishna Mohan Verma is the informant. P.W. 1 Siyaram Singh and P.W. 2 Madan Ram are the two constables who are said to have accompanied P.W. 3 at the time of search and recovery of the smacks. P.W. 4 Kedarnath Tiwari is the I.O. of the case. P.W. 5 Santosh Prasad Yadav is a formal witness who has proved the writing and the type over the chemical examination report marked Ext. 5.
4. The trial Court had examined the appellant under Section 313 of the Code of Criminal Procedure. The appellant did not take any plea and he simply stated in his statement that his own friend of Nepal had given that smacks to him for keeping it with him (the appellant).
5. P.W. 3 deposed that on 26th August, 1990 while he, alone with constables Madan Ram (P.W. 2) and Sivaram Singh (P.W. 1) had gone to tempo stand near Railway GUMTI at Raxaul, had found the appellant there in suspicious condition. Hence, in presence of public witnesses Arjun Prasad and Salim Ansari, he conducted search of the appellant and as a result of which, one PUDIA containing 4 other small PUDIAS which contained smacks, weighing about 2 grams was recovered which was kept concealed in the bottom folder of appellant's trousers. He deposed that he prepared a seizure-list on which the public witnesses also signed. The signature of witness Arjun was marked Ext. 2/2 and the seizure-list was marked Ext. 1. He further deposed that after arresting the appellant, he took him to the Excise Sub-Inspector, Kedarnath Tiwari and handed over to him the appellant and the recovered smacks. He proved the prosecution report marked Ext. 3. He further deposed that the recovered smack was sent for chemical examination and the examination report was also received. He proved the signature of S. Gupta, Junior Scientific Officer, marked Ext. 2/3 and the signature of S. R. Hassan marked Ext. 2/4 on the chemical examination report. At para 8 of his cross-examination, he deposed that he had mentioned the weight of the recovered smack according to his estimate.
6. P.Ws. 1 and 2 who are the Excise Constables and who had accompanied the P.W. 3 at the time of search and seizure corroborated the evidence of P.W. 3 by testifying in similar manner about the search, recovery and seizure of the smacks from the possession of the appellant.
7. P.W. 4 who is the I.O. of this case and who had filed the prosecution report deposed that on 26th August, 1990, while he was Officer In-charge of Excise at Raxaul. P.W. 3 along with P.Ws. 1 and 2 had come to him with the appellant and produced along with the seizure list 2 grams of smacks. He further deposed that he took out a sample of 75 mg. of smacks from the recovered smacks and sealed it and sent it for chemical examination. He further deposed that he forwarded the accused with his report to the Court and he also submitted a prosecution report. He produced the recovered 4 PUDIAS containing smacks before Court and they were marked as material Exts. 1, 1 /1, 1/2 and 1/3. He also produced three foils marked material Exts. 2, 2/1 and 2/2 and he deposed that the 4 PUDIAS contained brownish powder like substance in small quantities. In his cross-examination at para 7 he deposed that he had not weighed the powder separately but the weight was taken with the paper PUDIA containing powder. He also deposed that he had weighed the recovered material with an ordinary balance. He further deposed that any scientific measurement of the article was not done.
8. On considering the evidence, as adduced by the prosecution, I find that the prosecution has proved the recovery of smacks from the possession of the appellant.
9. During argument, the learned counsel for the appellant argued that in this case, any scientific weighing or measurement of the recovered smacks was not done. He argued that the smacks is in a very small quantity of 2 grams and he continued to argue that according to the very admission of P.W. 4, the weight of the recovered smacks was not done separately and it was weighed along with paper PUDDIA in which it was contained. The learned counsel argued that since the smacks was contained in 4 paper PUDIAS the weight of the smacks, when taken separately would have been much less. The learned counsel even went to the extent of arguing that the weight of the smacks, if taken separately could not have exceeded 250 miligrams which would fall in the category of 'small quantity' as per the Notification S.O. 827(E) dated 14th November, 1985 applicable at the relevant time of the recovery.
10. The learned A.P.P. submitted that no doubt the weight of smacks was taken along with paper PUDIAS but he argued that even if the weight of the recovered smacks is considered separately, though not weighed, it would not come in the category of 'small quantity' i.e. 250 milligrams. From the evidence of the case, it is a fact that the recovered smacks was not weighed scientifically and P.W. 4 has also deposed that he weighed it with an ordinary balance. He also deposed that he had not measured or weighed the recovered smacks separately, excluding the paper PUDIA in which it was contained. Under such circumstances, when no scientific weighing has been done and the quantity is so small. I find that the benefit must go to the appellant when it was argued on his behalf that the recovered quantity would fall in small quantity.
11. As to the nature of the recovered smacks, the Chemical Examination report has been brought on the record and it proves that the smacks, the sample of which was examined, was heroin which is a diacetyl derivative of morphine.
12. Since the appellant is entitled to construction in his favour that the recovered smacks may be considered as smacks in small quantity, the learned counsel for the appellant argued that a leniency in the quantum of sentence is required under the circumstances of the case.
13. In this case, the learned trial Court framed charge under Section 17 of the Act and the contents of the charge were explained to the appellant that on 26th August 1990 at Raxaul P.S. Raxaul District East Champaran, Motihari he was found in possession of 2 grams of smacks without permit or licence in contravention of the provisions of the Act. Hence, it was pointed out on behalf of the appellant that under Section 21 of the Act as it was in force at the relevant time, is not applicable to the case of the appellant, hence, it was also argued that the appellant was not properly charged and, thus, he has been prejudiced in his trial and defence. The appellant's counsel pointed out that Section 17 of the Act relates to punishment for contravention of the provisions of the Act whereas this case relates to the possession and recovery of heroin, which is also known as 'brown sugar'. Learned Additional P. P. submitted that may be there is some mistake in mentioning the number of the Section applicable but the very contents of the charge is clear and it categorically mentions that the appellant was found in possession of heroin. Therefore, the learned A.P.P. argued that simply because mentioning a wrong number of Section it cannot be said that the accused was not properly charged and he has been prejudiced in his trial and defence. The learned A. P. P. refers to Section 21 of the Act and points out that the exact number of Section applicable to the case is 'Section 21' of the Act which concerns punishment for possession of heroin. Therefore, the learned A.P.P. argued that the conviction can be converted into a conviction under Section 21 of the Act. Learned A. P. P. refers to Section 464 of the Code of Criminal Procedure which provides that no finding of sentence or order of a Court of competent jurisdiction shall be deemed invalid merely on the ground of error in charge. Under the circumstances, when there was simply error in mentioning the number of the Section but the facts constituting the offence were quite clear and categorically explained to the appellant. I find that no prejudice has been caused to the appellant in the trial. I also find that the conviction of the appellant can be safely converted into a conviction under Section 21 of the Act.
14. Since upon consideration of the evidence, the benefit is available to the appellant that the recovered smacks can be considered to be smacks in small quantity, learned counsel for the appellant argued that under these circumstances, the Court can consider leniency in the quantum of sentence to be awarded to the appellant. Learned A. P. P. opposed this prayer of the appellant and he argued that even in case of recovery in small quantity, there is no scope for leniency in sentence, except in cases falling under Section 27 of the Act. Learned A.P.P. pointed out that under Section 27 of the Act, a lesser punishment can be given when the recovery is in small quantity and when the accused taken a plea that it was for his personal consumption and through reliable evidence he proves it that it was for his personal consumption. The learned A.P.P. argued that in this case the appellant has not taken any such plea that the recovered smacks was for his personal use or consumption nor any evidence was led by the appellant to prove any such claim. Therefore, when there is no such plea taken by the accused that the recovered smacks was for his personal consumption. I find that he is not entitled for any remission in the quantum of sentence.
15. Thus, considering the facts and circumstances of the case, I find that the learned trial Court has rightly convicted the appellant and the order of conviction and sentence passed by the learned trial Court need no interference.
16. In the result, the appeal is dismissed with only modification in the conviction that the appellant stands convicted under Section 21 of the Act.