SURESH DAGOJI SAHARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of conviction passed by the Additional Sessions Judge, Nagpur, in Sessions Trial No.643 of 1991 dated 25th February, 1993 convicting the appellant under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing the appellant to suffer rigorous imprisonment for ten years and to pay a fine of Rs. One Lac, in default to suffer rigorous imprisonment for one year.

(2.) THE accused-appellant was found 150 ml. grams of heroin while his search was being taken by P. W. 7 Shri Shewane, Head Constable, after complying with the procedure required to be followed while effecting the personal search of a person, on 19.5.1991 at about5.30 p. m. at Siddharth Nagar, Nagpur and, therefore, the prosecution under Section 21 of the N. D. P. S. Act of 1985.

(3.) THE second submission, which was made by the learned counsel, is to the effect that the evidence of P. W. 6, who was Incharge of the Malkhana of Pachpaoli Police Station, shows that on 20.5.1991, he handed over the sealed parcel of the contraband articles to the carrier P. W. 3 Umare to take the same to Chemical Analyser office for analysis. It is being pointed out by the learned counsel that the evidence of P. W. 6 is not consistent with the evidence of the carrier P. W. 3 Umare, who has stated that on 20.5.1991, as there was no stamp of P. S. I. on chemical analysis form, he returned the property to Malkhana and again on 21.5.1991, he carried the property to Chemical Analyser and thus it was being submitted on the basis of this evidence that the possession of the property for one day is doubtful. We are not impressed by the said discrepancy in the evidence because it does not materially prejudice the defence of the accused-appellant. Apart from that, be the evidence as it is, the evidence of P. W. 4 Chemical Analyser, who received the property on 21.5.1991 in a sealed condition from the Police Constable in Crime No.561 of 1991, found that the seals of the property were intact and there was no damage to the seals in question and, therefore, if the property intended to be analysed has been received by the Chemical Analyser intact having the seals as they were shown in the panchanama and the covering letter, there cannot be any prejudice to the accused-appellant because it will prove that the property, which was attached from the personal search of the accused-appellant, has been received by the Chemical Analyser P. W. 4, who has analysed it and has found that the sample contained 40 to 60 per cent of heroin and, therefore it falls under Section 2 (xvi) (e) of the N. D. P. S. Act and, therefore, we hold that, even accepting the discrepancy in the evidence for a moment for the sake of argument, there is no prejudice caused to the appellant-accused as the property received by P. W. 4 Chemical Analyser was intact and the seals of the property were not damaged and/or disturbed in any way.