1. The accused-appellant has been held guilty of an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo Rigorous Imprisonment for 10 years with a fine of Rs. 1,00,000/- (Rupees one lakh) and in default of fine, to undergo further Rigorous Imprisonment for two years. The conviction, as also the sentence passed thereon by the learned Special Judge. Nagpur, have been maintained in appeal by the High Court.
2. Briefly stated the prosecution case is that Bhaskar Kolhe (PW 6), Police Head Constable, attached to Crime Branch, Nagpur received an information at about 12-15 p.m. on 8th January, 1993 that a person by name Amarjeet Singh was possessing brown sugar and selling the same by standing near Mominpura Masjid. He was also informed of the features of the accused so as to identify him. Head Constable Kolhe made a record of the information and sent a copy of the same to the Assistant Commissioner of Police who was his immediate superior officer. He made preparations for preserving and sealing the material likely to be seized and then proceeded to Mominpura Masjid, i.e., the place where the accused was standing as per the information. He was accompanied by police constables. After reaching Bhagwaghar Chowk, a place on the way, Head Constable Kolhe stopped and called two witnesses, namely, Mohammad Israil (PW 1) and Hemraj Parate. The two Panchas were informed the purpose for which they were called. Then they proceeded on foot towards Mominpura Masjid. The accused was found standing as per information. He was encircled by the raiding party. Head Constable Kolhe disclosed his identity to the accused and informed him that he was to be searched in connection with recovery of brown sugar, a narcotic drug. He also gave option to the accused in the presence of the Panchas as to whether he wanted to have himself searched by being taken either before any Gazetted Officer or a Magistrate. The option was declined by the accused. To that effect a writing was prepared and signed by the accused and also signed by the panch witnesses. The accused was then searched. A polythene bag and currency notes of Rs. 40/- were found in the watch pocket of his pant. The polythene bag was taken out and opened. It was found containing ten tiny packets wrapped in a paper of note book.
These tiny packets were opened. Each of the packets contained brown sugar. The contents of all the ten packets were collected" together and weighed. The total quantity found was 1100 mgs. out of which 100 mgs. quantity was separated as a sample to be sent to chemical analyser. The remaining 1000 mgs. quantity was separately sealed, The cash amount of Rs. 40/- was separately sealed. A Panchnama was prepared making a record of these proceedings and signed by the panch witnesses. On 11-1-1993, 100 mgs. quantity, which was separated by way of sample, was sent to the chemical analyser and was found to be Heroin, i.e. Diacetyl Morphine along with opium alkaloids. After the receipt of the report of the chemical analyser, chargesheet was filed against the accused.
3. The trial Court has believed the testimony of Head Constable Kolhe supported by the testimony of panch witnesses and held the accused guilty and sentenced him as already stated hereinabove.
4. The learned counsel for the appellant submitted that the statement of Head Constable Kolhe and the panch witness is not supported by diary entry called 'Sanha' wherein it is recorded that the two panch witnesses were called in the office of the Crime Branch and from there they had accompanied the raiding party up to the place where the accused was raided and searched. However, the oral testimony of H.C. Kolhe and the witnesses, is to the effect that the panchas were called after the raiding party had reached Bhagwaghar Chowk. The criticism so levied is devoid of any merit and cannot be considered for two reasons. Firstly, the attention of the Head Constable was not invited to the contents of Sanha entry and if only that would have been done. Head Constable Kolhe would have explained the so called inconsistency. Secondly, the names of the panch witnessees, i.e. Mohammad Israil and Hemraj Parate were not mentioned in the Sanha entry, therefore, the likelihood of the two panch witnesses, who actually witnessed the search, having been called at Bhagwaghar Chowk after the raiding party had reached there cannot be ruled out. In the absence of the requisite cross-examination having been conducted specifically in this regard, and Head Constable Kolhe having not been confronted with the Sana entry, in our opinion, the so called inconsistency cannot be relied on so as to doubt the testimony of the Head Constable, the panch witness and other members of raiding party, examined in the Court whose testimony is substantially consistent with each other and there is nothing otherwise to detract from the weight of their evidentiary value.
5. It was next submitted that the material recovered on 8-1-1993 should have been immediately sent to the chemical analyser and there should not have been a delay of three days in doing so. This fact has been explained by the prosecution by pointing out that the recovery and seizure were in the later part of the day of 8th January, 1993 and the following two days were holidays on account of second Saturday and Sunday, on which days the office of chemical analyser was closed, and therefore, the sample of seized article could have been sent to the chemical analyser only on Monday, the 11th January, 1993 and hence, there has been no delay in sending the sample of the seized article to the chemical analyser.
6. We do not find any infirmity in the findings of fact recorded by the learned trial Court as also the High Court which has made independent evaluation of the evidence of its own, and thereafter agreed with the trial Court in holding that the brown sugar packets were recovered from the possession of the accused and from his person when seized. The sentence awarded to the accused is minimum and has to be maintained.
7. The appeal is devoid of any merit and is dismissed.