Vaidyanatha, J.:— This is an appeal against the judgment dated 29th September, 1993 in Special Criminal Case No. 14/92 on the file of the Narcotic Drugs and Psychotropic Substances Court, Mapusa. We have heard the learned counsel for the appellant and the learned Public Prosecutor.

2. The appellant and three other accused were prosecuted by the Police for an offence under Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution case is that on 12th February, 1992, on reliable information the Sub-Inspector, Anti-Narcotic Cell, Panaji, along with panchas entered a hotel called Ali Baba Sea Food and Juice Corner at Baga. The appellant was found there. Then the Sub-Inspector Smt. Sunita told the appellant that he is suspected to be in possession of drugs and required to be searched. She also gave an option that if he desired he could be searched before a Magistrate or a Gazetted Officer, but the appellant declined the Offer. Then the person of the appellant was searched. In the left side pant pocket of the appellant cash of Rs. 2364/- was found and on the right side pant pocket charas sticks were found, which were wrapped in a transparant polythene cover. On being questioned whether he is in possession of more charas, the appellants, who is shown as accused No. 1 in the Court below, took out the floor under the kitchen table and took out a plastic container having the name “Mac Dowell Diplomat” and on opening it, it contained five ploythene bags containing charas. It was seen that the accused Nos. 2 and 3 were sleeping in the adjacent room. They were also questioned and they were searched, but nothing incriminating was found. The recovery of charas from the possession of the appellant and the recovery of charas from under the kitchen table were seized under a panchanama. Sample packets were prepared from both the seized charas packets. Then the Sub-Inspector Sunita took the three accused to Calangute Police Station and lodged a complaint and then a case was registered in that Police Station. During the course of Investigation, attempts were made to trace the owner of the hotel namely accused No. 4, but he was absconding. The charas samples were sent to the Chemical Examiner who confirmed that they contained charas. After usual Investigation chargesheet was filed alleging that all the accused have committed offences punishable under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Further, accused No. 4 was charged for an offence under Section 25 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. The defence of all the accused was one of total denial.

4. After trial, the learned Special Judge held that no case is made out against accused Nos. 2 to 4 and acquitted them. As far as accused No. 1 is concerned, the present appellant, the learned trial Judge held that the prosecution has proved its case and convicted the appellant and sentenced him to suffer Rigorous Imprisonment for a period often years and to pay a fine of Rs. 1,00,000/- or, in default to suffer six months of Rigorous Imprisonment. The appellant was also given the benefit of set off of the period already undergone from the date of arrest till the date of sentence under Section 428 of the Code of Criminal Procedure. Being aggrieved by the conviction and sentence, the accused No. 1 has come up with this appeal.

5. The learned counsel Mr. J.P D'Souza, appearing for the appellant, has questioned the cor rectness and legality of the impugned judgment. It was argued that the prosecution has not proved its case beyond reasonable doubt and the conviction of the appellant is bad. It was also argued that the prosecution has not complied with many of the provisions of the Narcotic Drugs and Psychotropic Substances Act and therefore the trial is vitiated and the conviction is liable to be set aside. It was also argued that the Sub-Inspector Sunita who was in charge of the Anti-Narcotic Cell had no power to investigate any offence of Calangute Police Station. On the other hand Mr. G.U Bhobe, learned Public Prosecutor supported the impugned judgment and contended that none of the contentions of the appellant have any merit.

6. We will consider a number of contentions urged on behalf of the appellant one by one to find out whether the appellant has made out a case for interference with the conviction and sentence.

7. As pointed out already, one of the serious contentions is that the Anti-Narcotic Cell was not declared as a Police Station at the relevant time and that the offence in question was registered in the Calanguate Police Station and therefore the detecting Officer Sunita Sawant who was only a Sub-Inspector of Anti-Narcotic Cell could not have proceeded with the Investigation of the case after registration of the case in the Calangute Police Station. It was therefore argued that the entire Investigation is done by an incompetent Officer and therefore it results in vitiating the trial. In our view there is no merit in this submission.

8. There is no legal obstacle for an Officer of the Anti-Narcotic Cell to detect a crime under the Narcotic Drugs and Psychotropic Substances Act, 1985. In fact, the Anti-Narcotic Cell has been constituted to detect offences under the Narcotic Drugs and Psychotropic Substances Act. It may be that at the relevanuime it had not been declared as a Police Station and it is now conceded that recently it has been declared as a Police Station. As far as declaration of Police Station is concerned it has only reference for registration of the offence. After detecting. the crime in question, the Sub-Inspector Sunita went to the jurisdictional Police Station, namely Calangute Police Station, and lodged a written complaint about detection of this crime and on that basis a crime was registered in the Calangute Police Station. So far there is no dispute. The only question is whether subsequent investigation could have been done by an Officer of the Anti-Narcotic Cell or investigation should be done only by an Officer of Calanguate Police Station. As far as the appellant is concerned, the main offence is one of recovery of charas from has possession which was completed when the crime was detected when the property was seized from the possession of the appellant under a panchanama. The only investigation done subsequently as far as the appellant is cconcerned is only to get a report from the Chemical Examiner. Sending the article to Chemical Examiner is purely a formal and routine thing. Therefore, as far as the appellant is concerned, 99% of the Investigation was over as and when the contraband article was alleged to have been seized from the possession of the appellant under a panchanama. Then, after getting a report from the Chemical Examiner, chargesheet is filed not by the Anti-Narcotic Cell Officer, but by the Officer in charge of the Calangute Police Station. Hence, as far as the appellant is concerned the main investigation was over by the detecting Officer and only further thing done by the detecting Officer is to send the article to the Chemical Examiner for examination and then subsequently, the jurisdictional Sub-Inspector has himself filed the chargesheet. Hence, it cannot be said that there is any irregularity in the Investigation done in this case so as to vitiate the tiral itself.

9. The learned Public Prosecutor in fact rightly contended that any irregularity in the investigation by itself does not vitiate a trial unless the Investigation is done contrary to the mandatory provisions of law or that any prejudice is caused to the appellant. It is not necessary to consider the point in detail since the matter is covered by a decision of a Division Bench of this High Court which was brought to our notice by the learned Public Prosecutor. In a recent unreported judgment of a Division Bench of this Court dated 13th July, 1995 in Criminal Appeal No. 28/94 (Dilkush G. Sinai v. State Of Goa), a similar or identical question was canvassed. Then, the Division Bench referred to an unreported decision of a learned single Judge of this Court in Criminal Miscellaneous Application No. 134/92 (Rodney E. Joseph v. State of Goa) delivered on 28th August, 1992, and endorsed the view of the learned single Judge in the following words:

“…a learned Single Judge of this Court held that the Investigation done by the Anti-Narcotic Cell despite the fact that it was not yet declared as a Police Station and its Officers were not invested with the powers of Officer-in-charge of the Police Station, did not render the Investigation null and void or vitiate the trial unless it was shown that the accused was prejudiced as a result of the alleged irregularity in this behalf. We are of the same view. We are not satisfied that the accused suffered any prejudice or that there was any miscarriage of Justice merely because the Investigation of the offence was conducted by P.S.I Poduval (PW-3).”

We respectfully agree with the above observations. Even in the present case nothing is pointed out to us as to how any prejudice was caused by the continuation of investigation by the Sub-Inspector of Anti-narcotic Cell and not by the Sub-Inspector of Calangute Police Station. We do not find that any miscarriage of Justice has been done by Smt. Sunita continuing the Investigation. As already pointed out, as far as the appellant is concerned, no further investigation is done except the first recovery and subsequently getting the report from the Chemcial Examiner.

10. It is true that it is only a police officer in charge of a Police Station who can investigate the cases within his jurisdiction as provided in Section 156(1) Criminal Procedure Code, but we cannot ignore the specific provision in sub-clause (2) of Section 156 which clearly says that no proceeding of a police officer shall be called in question at any stage on the ground that he had no right to investigate.

11. In this connection we may make reference to a case reported in 1983 Cri. LJ 934 ‘Lilade Sitade Pavaiya v. State of Gujarat’ where His Lordship Justice S.M Majumdar (as he then was, currently an Hon'ble J. of the Supreme Court), has held that Section 156(2), Criminal Procedure Code covers even the case of an Investigation by a Police Officer who had no territorial jurisdiction to investigate the offence. The same view has been followed by another single Judge of the Gujarat High Court in case of Soni Natverlal Prabhudas v. State of Gujarat ‘reported in 1983 Cri LJ 1124. The learned Public Prosecutor also invited our attention to ‘Sohoni’ Code of Criminal Procedure,’ 19th Edn. Vol. II pages 1548 and 1549, where it has been clearly mentioned by the learned author that even an irregularity in Investigation including lack of jurisdiction cannot be called in question in view of the statutory bar under Section 156(2), Criminal Procedure Code. We may also notice that all offences under the Narcotic Drugs and Psychotropic Substances Act are cognizable offences and therefore, can be investigated by any police officer.

12. For the aforesaid reasons we do not find any merit in the contention of the learned counsel for the appellant that a police officer of Anti-Narcotic Cell could not have continued the Investigation after detection.

13. The learned counsel for the appellant contended that the provisions of Section 55 of the Narcotic Drugs and Psychotropic Substances Act are mandatory and they are violated in this case and therefore, the trial is vitiated. Reliance was placed on ‘Md. Jainulabdin alias Nahamacha v. State of Manipur’ reported in 1991 Cri LJ 696, where the Gauhati High Court has no doubt held that Section 55 of the Narcotic Drugs and Psychotropic Substances Act is mandatory. We are unable to subscribe to this view. A plain reading of Section 55 itself shows that it is only an enabling provision and not a mandatory provision. It only provides that an Officer who seizes a property may deposit the seized contraband article with an Officer in charge of a Police Station. In fact, the words used in the Section are “which may be delivered to him,” which clearly show that if some articles are delivered to him, then the Officer in charge of the Police Station shall keep them in his custody and allow the officer depositing the same to take packed samples, etc. It is only to safeguard the interest of the Officer who may deposit the contraband articles in a Police Station, an enabling provision is made in Section 55 of the Act. We are also fortified in our view by two decisions on this point.

14. In ‘Namdi Francis Nwazor… v. Narcotics Control Bureau….’ reported in (1994) (I) Crimes 579, the Delhi High Court has clearly pointed out that Section 55 is only an enabling provision and gives an option to the Officer making seizure to deposit the articles in the local Police Station. A similar view is taken by a Division Bench of the Bombay High Court in ‘Ramji Duda Makwana… v. The State Of Maharashtra….’ reported in 1994 Cri LJ 1987, where they have referred to Section 56, which is obviously a mistake and should be read as Section 55, as pointed out by the learned Editor of the Journal. It is further pointed out in the said decision that when a specialized authority like a Narcotic Contro Bureau does Investigation, there is nothing to preclude the authority to keep the contraband articles in its safe custody.

15. Therefore, we are of the view that the provisions of section 55 are not mandatory and they are only enabling provisions and therefore violation of the same will not and cannot vitiate the trial, unless of course the defence could establish any prejudice being caused to the appellant accused we find that no prejudice has been caused to the appellant due to any violation of Section 55 of the Act.

16. The most serious argument advanced on behalf of the appellant is that there is delay in sending the sample packets to the Chemical Exam-iner. Then there is also an argument that there is no evidence about proper sealing of the sample packets.

17. In the present case the date of seizure is 12th February, 1992. The sample packets have been received in the Office of the Food and Drugs Laboratory (vide deposition of PW 1) on 19th February, 1992.

18. The Investigating Officer Sunita Sawant who gave evidence as PW-8, has told the Court that she had forwarded sample sealed packets (Exhs. P. 1 and P. 2) to the Chemical Examiner through the Crime Branch. Though the date of seizure was sometime on 12th February, 1992, by the time the complaint was registered and formalities were over it was sometime in the afternoon or evening of 12th February, On the very next day, namely 13th February, she has sent the two sealed sample packets to the Chemical Examiner through the department.

19. PW-1 has produced the relevant correspondence. The two letters have been marked collectively as Ex. PW-I/A. The first letter is dated 18th February, 1992 written by the Superintendent of Police to the Chemical Examiner under which he is forwarding the letter of the Sub-Inspector of Anti-Narcotic Cell dated 13th February, 1992 along with sealed packets. The second letter is the letter of the Sub-Inspector of Anti-Narcotic Cell dated 13th February, 1992, which has already come in the evidence of PW-8 and she has marked it through the Police Inspector Anti-Narcotic Cell. That means on 13th February, 1992, PW-8 is delivered the letter to the Inspector of Police Anti-Narcotic Cell for onward transmission through the Crime Branch to the Chemical Examiner. The Inspector forwarded that letter to the Super intendent of Police, C.I.D, Panaji, who in turn forwarded the same along with sample packets to the Chemcial Examiner on 18th February, 1992. Then, the letters and the sealed packets have been received in the Office of the Chemical Examiner on 19th February 1992. That means we have some intrinsic material on record to explain the movement of the sample packets, from the Office of the Sub-Inspector to the Office of the Inspector and then to the Superintendent of C.I.D and then ultimately it reached the Office of the Laboratory on 19th February, 1992. Hence, it cannot be said that there is no explanation about he movement of the sample packets in this case or that there was any undue and unexplained delay in sending the articles to the Chemical Analyser.

20. The learned counsel for the appellant invited our attention to some of the authorities on this point.

21. In ‘Shankaria alias Shankar v. State (Delhi Admn.)’ reported in (1995) 1 Crimes 112 (Delhi) there is reference to deposit of C.F.S.L From in the Police Station, etc. We do not know about any provision in the Narcotic Drugs and Psychotropic Substances Act for depositing C.F.SX Form by the detecting Officer in the Police Station. Probably, this may be a requirement under the rules framed by the Delhi High Court or Delhi Administration. On facts the said decision is distinguishable.

22. In ‘Bhaskar Ayyar Kaundar v. State of Maharashtra reported in (1994) (1) Mah LR 9 : (1993 Cri LJ 2761) a delay of five days in sending the sealed packets to the Chemical Analyser by the Investigating Officer was commented on and in that case it was held that the delay was fatal. The High Court also found that there was no evidence or explanation to show as to where the packets were lying for 5 days after they were removed from the Police Station and before they reached the Chemical Analyser.

23. Similarly, in ‘Mohd. Hussain Babamiyan Ramzan… v. State Of Maharashtra…’ reported in (1994) 2 Mah LR 41 : (1994 Cri LJ 1020) a delay of four days was commented upon. No reliance was placed on the certificate of the Chemical Analyser. That the seals were intact on comparison since the specimen seals were not readable and therefore it cannot be said that the seals were intact.

24. In ‘Nathiya v. State’ reported in (1992) 1 Crimes 537 : (1992 Cri LJ 2342) (Raj) there is comment about the sealing and sending of the articles to the Chemical Analyser, etc. It is seen that the packets were not sealed on the spot itself. Then, the bags were opend in the Police Station without an order of he Magistrate. Specimen seal was not sent to the SFSL. Therefore, we find that the said decision is based on peculiar facts of the case, which have no bearing on the facts of the present case.

25. Our attention was also drawn to a recent unreported judgment of this Court dated 29the November, 1994 in Criminal Appeal No. 28/93 (Shri Emilio Uria Murais alias Nito v. Superintendent of Customs (P), Customs House, Panaji, Goa), where an unexplained delay of one day on the part of the Constable in delivering the sealed packet to the Chemcial Analyser was commented on and found to be fatal. A perusal of the judgment shows that it proceeded on the concession made by the learned counsel for the Department who conceded that the integrity of the seals on the samples was not established by the prosecution and it was further conceded that the prosecution has not offered any explanation about the whereabouts of the samples on 18th June, 1991 (vide para 7 of the judgment). It was a case where a Constable had taken the sample from the Office of the Police Station and had kept the article with him for one day and there was no explanation about the delay in delivering the article to the Office of the Chemical Analyst.

26. A perusal of the above judgment shows that each case depends on its own facts and circumstances. There can be no hard and fast rule as to what time should be allowed for the delivery of article in such cases. In one case one or two days may be fatal, in another case few days or one or two weeks delay may not be fatal depending upon the facts and circumstances of the case. We may also refer to a Division Bench decision of the Bombay High Court reported in 1993 Cri LJ 3634 (Smt. Meena Gopalkrishna Mudiliyar v. State of Maharasthra), where though the carrier, namely Police Constable, had not been examined and though the date of seizure was 2nd March, 1987, and it was sent to the Chemical Analyser on 10th March, 1987, the delay was not doubted and it was further seen that the seals were found intact by the Chemical Analyser and the same was accepted.

27. In 1994 Cri LJ 1987, a Division Bench of the Bombay High Court considered a question of delay of 1½ days in sending the article to the Chemical Analyser. On facts it was held that there was no question of delay at all.

28. In our view it is always a question of fact to be decided whether a delay in a particular case is fatal or not. No hard and fast rule can be laid down on this point. In the instant case we have the evidence of the Investigating Officer that the formalities of seizure and registration of the case took place on the afternoon of 12th February, 1992 and on the very next day she has sent the sample packets to her Inspector. Hence on her part there was no delay at all. The Inspector has in turn forwarded the papers with the packets to the Superintendent of the C.I.D, who in turn on 18th February, 1992, forwarded the same to the Chemical Analyser and it reached the Office of the Chemical Analyser on 19th February, 1992. In the circumstances of the case we are satisfied that there is no undue delay so as to doubt the prosecution case or throw out the prosecution case once and for all. Further, we find from the report of the Chemical Analyser that the impression on the sample sealed had been sent along with the covering letter and the seals were found intact. This also satisfies the conscience of the Court that the seals had not been tampered with and the seals were found intact by the Chemical Examiner. The Court can also raise a presumption under Section 114 of the Evidence Act that all official acts had been done properly and as per rules.

29. It was also argued that as required by Section 100(6) of the Criminal Procedure Code a copy of the panchanama has not been given to the appellant and therefore the search is vitiated.

30. In the panchanama there is a clear recital that a copy of the panchanama has been given to the accused. The learned counsel for the appellant invited our attention to ‘Shankar Raju Banglorkar… v. State Of Goa….’ reported in 1992 Cri LJ 3034 (Bombay) where no doubt some comment is made about non-supply of copy of the panchanama to the accused. One of the facts found against the prosecution was that though there was a recital in the panchanama about the delivery of copy, a specific column had been left blank for the signature of the accused, but no signature had been taken. Even on facts, the prosecution case was doubted. In our view even granting that there was some violation of the provisions of Section 100 of the Criminal Procedure Code, it will not vitiate the trial of the accused. In this connection we may refer to a decision of the Apex Court in ‘State Of Punjab v. Balbir Singh.’ (1994) 2 JT (SC) 108 : (1994 Cri LJ 3702) where number of points have been considered by the Apex Court. The Apex Court has observed that violation of Section 100 and Section 165 of the Criminal Procedure Code could not vitiate the trial but it amounts to only irregularity. In all such cases the irregularity will have to be taken into consideration while appreciating the evidence on record We will presently refer to the evidence and find out whether the evidence on record inspires confidence notwithstanding some omissions or irregularities here and there.

31. Another contention urged before us by the learned counsel for the appellant is about violation of Section 52(I) and Section 57 of the Narcotic Drugs and Psychotropic Substances Act.

32. As far as Section 52(1) of the Narcotic Drugs and Psychotropic Substances Act is concerned, the requirement of law is that the person apprehended should be informed about the grounds for such arrest.

33. Then, Section 57 of the Narcotic Drugs and Psychotropic Substances Act provides that after arrest and seizure, the detecting Officer shall make a full report of all the particulars of such arrest and seizure to his official superior within 48 hours.

34. In the present case we find that there is substantial compliance with these two provisions, which we will presently point out. Even otherwise, if there are any violations of these two provisions they are not fatal to the prosecution case and do not vitiate the trial as declared by the Apex Court in Balbir Singh's case (1994 Cri LJ 3702) referred to earlier. In Balbir Singh's case the Apex Court has pointed out that only certain provisions are mandatory the violation of which will vitiate the trial. As far as certain other provisions are concerned like Section 52, Section 57 and the searches being in contravention of the provisions of Section 100 and Section 165 of the Criminal Procedure Code, the.trial itself is not vitiated but the Court will have to examine the evidence bearing in mind the violations and find out whether the evidence is sufficient to prove the prosecution case or not. Therefore, the argument urged on behalf of the appellant that the trial is vitiated for violation of Section 52 and Section 57 of the Narcotic Drugs and Psychotropic Substances Act, does not bear scrutiny in view of the law declared by the Apex Court in Balbir Singh's case.

35. Now coming to the question whether there is substantial compliance as far as Sections 52 and 57 of the Act are concerned, the evidence is that immediately after going to the Hotel the detecting Officer told the appellant about her identity and then told him that he is suspected to be in possession of drugs and if he wants he can be searched before a Magistrate or gazetted Officer. Then there is evidence that drugs were recovered on the personal search of the appellant and the same were seized under a panchanama and then the appellant was apprehended or arrested. Therefore, the appellant is made known of the fact for which purpose he is being arrested by telling him that he is suspected of drugs and the drugs have been recovered from his possession. Even though there is no formal writing or formal record about informing the appellant about the grounds for his arrest, the materials on record as could be gathered from the evidence of panch witnesses, the evidence of the Investigating Officer and the contents of the panchanama indicate that the appellant has been told that he is suspected of being in possession of drugs and what is more, drugs have been recovered from his possession under panchanama and therefore, the appellant has been told indirectly that he is being arrested for being in possession of drugs. That is why we have used the words that there is substantial compliance of Section 52 of the Act.

36. Now coming to Section 57 of the Act, there is an obligation on the part of the detecting Officer to make a report of search and seizure to the official superior within 48 hours. The explanation of the detecting Officer PW-8, Sunita Sawant, is that she did not send a formal report to her immediate superior, namely, Inspector or Police since he was very much present at the time of seizure and therefore there was no necessity to send a formal report. It is true that it has come in the evidence that the Inspector did not stay for long and had to leave in the middle since he had some other work. The argument of the learned counsel for the appellant that the Inspector was not at all present at the time of this incident cannot be accepted. He supported this submission on two facts, namely that the Inspector is not cited as a witness and that his statement has not been recorded during investigation. In our view, there is intrinsic material on record to show the presence of the Inspector at the time of the incident on that day. We may refer to the complaint lodged by the detecting Officer Sunita Sawant in the Calangute Police Station immediately after the search and seizure. The complaint which has been treated as F.I.R in this case, has been marked as Exhibit PW-8.A. The very first sentence in the complaint reads as follows:—

“Today at about 07.30 hrs. I along with P.I Allen D'Sa, Panchas………………for random checking of locals and foreigners………………………………………………….

We entered the said restaurant from behind.” Then, there is reference to the search and seizure, etc. The fact that the Inspector Allen D'Sa was also present has been mentioned at the earliest point of time in the complaint lodged by the detecting Officer on the same day after the seizure and therefore, it is not a new explanation or an afterthought made by the detecting Officer while giving evidence in Court. We therefore accept the statement of the Investigating Officer that she did not sent a formal report since the Inspector was very much present when the incident of seizure and arrest took place on that day. The learned trial Judge has considered this aspect and also observed that normally the copies of the F.I.R which contain a copy of the complaint which gives all the details about the seizure and arrest will be usually forwarded to the higher Police Officers for information in every case.

37. Having considered and disposed of all the legal objections to the Investigation and trial taken by the learned counsel for the appellant, we will now proceed to consider the evidence adduced by the prosecution. The learned counsel for the appellant also invited our attention to an unreported decision of this Court dated 13th July, 1995 in Criminal Appeal No. 11/94. Afterperusing the same, we find that it is a decision based on the peculiar facts and circumstances of that case and has no bearing on the facts of this case.

38. The three witnesses who are relevant for our present purpose as far as the appellant is concerned are PW-I, PW-2 and PW-8.

39. It has come in the evidence of PW-I Malta Calderia, who was working as Jr. Scientific Officer in the Combined Food and Drugs Laboratory, that the sealed sample packets of this case contained charas. Her evidence has not been shaken in cross-examination. Her evidence therefore proves that the seized property in this case was charas. Now the question is whether the said charas was seized from the possession of the appellant or not.

40. PW-8 Sunita Sawant, is a lady Sub-Inspector who was working in the Anti-Narcotic Cell at the relevant time. She has told the Court that on 12th February, 1992 on getting credible information she along with panchas and staff went to the Ali Baba Restaurant. The appellant was present. After informing him about the identity of herself and about the puipose of her visit, namely that the appellant was suspected to be in possession of drugs and then offering to the appellant whether he desired to be searched before a Magistrate or gazetted Officer, which he declined, she searched the person of the appellant. She found cash of Rs. 2364/- in the left side pant pocket and on the right side pant pocket she found a wrapped transparent polythene packet containing some substance, which was found to contain charas. On being asked as to whether the appellant was in possession of more charas, the appellant dug up the floor under the kitchen table and took out a plastic container having a red lid bearing the name of “Mac Dowell Diplomat” which also contained five small polythene packets containing charas. She found two other persons, accused No. 2 and accused No. 3 in the adjacent room, but nothing incriminating was recovered from their possession. A panchanama was prepared (Exh. PW-2.A), the seized charas packets were put in envelopes and sealed. The envelopes were signed by herself and the panchas. She identified her signatures on the panchanama, her complaint and on the envelopes.

41. She has been cross-examined at length. It is elicited in cross-examination that the Anti-Narcotic Cell had not been declared as a Police Station at the relevant time. She did not get information about this particular accused when she left the Office of the Anti-Narcotic Cell. The learned counsel for the appellant pointed out that two or three questions in the cross-examination of this witness were disallowed by the learned Sessions Judge and this has caused prejudice to the appellant. But after going through the deposition of the witnesses we find that though the learned Judge has disallowed the question, the subsequent answers show that the questions have been answered. She has also stated that she received the information at 9.30 a.m when she was on her way and she could not reduce it to writing for want of time. It is seen that the question. “What was' the infromation that was received by you?” was disallowed by the learned Special Judge. But the next answer showed that the answer of the witness has been recorded regarding the information received by the witness etc. She has clearly stated that she received the information on her way from Anjuna to Baga. Immediately, she has gone to the Hotel in question and therefore there was no time nor opporunity to reduce the information to writing. It is elicited that immediately after collecting the charas packet from the pant pocket it was not sealed, but it was sealed at the end, while preparing the panchanama. In our view, no exception could be taken to the conduct of the witness in putting the seal at the end of the panchanama. Admittedly, no other packets have been recovered from the accused No. 2 and accused No. 3. Therefore, there is no question of the charas seized from the appellant being mixed up with or confused with some other articles recovered from accused No. 2 and accused No. 3. She has denied a number of suggestions in cross-examination. She has been cross-examined with reference to handing over of the sealed packet, etc.-which we already commented on while considering the arguments of the learned counsel for the appellant about delay in sending the sealed packets to the Chemical Analyser. Some of the minor discrepancies elicited in the cross-examination of the Investigating Officer and which were highlighted by the learned counsel for the appellant do not bear scrutiny.

42. We have carefully considered the evidence of PW-8. Her evidence is corroborated by the contents of the panchanama and the contents of the complaint which was lodged by her on that day. She has no axe to grind against the appellant. In our view her evidence has not been shaken in cross-examination in any way. Her evidence is also corroborated by panch witness PW-2. The learned Special Judge had occasion to record the evidence of these witnesses and has given good reasons to accept the evidence of these witnesses and on reappreciating the evidence in the light of the arguments addressed on behalf of the appellant,.we do not find any reason to take a” different view.

43. The panch witness PW-2, Garson Rebello Sa, has substantially corroborated the evidence of the Investigating Officer. PW-8. He has also stated that he and the other panch accompanied the sub-Inspector Sunita and went to the Hotel of the appellant. He also speaks about the seizure of cash and charas packets-from the pant pockets of the appellant. He has also given evidence about the appellant removing sand and taking out a plastic container below the kitchen table which also contained charas. He also says that no incriminating articles were found in possession of accused No. 2 and accused No. 3, who were sleeping in the adjacent room. He has also indentified the seized properties and his signature on the envelopes. Then he has spoken about signing the panchanama and identifying his signatures. This witness was also subjected to lengthy cross-examination. In our view the witness has stood the test of cross-examination. Except for some minor discrepancies which do not bear scrutiny, we do not find that the evidence of this witness has been shaken in cross-examination. He has denied number of suggestions. One contradiction (‘AA’ in the panchanama) brought with reference to the contents of the panchanama is also not very material so as to disbelieve the witness on other points. As already stated, the learned Special Judge who had the opportunity of recording the evidence of particularly these two witnesses PW-2 and PW-8 has given very good reasons for accepting their evidence. It is well-settled that the Appellate Court should give credence to the appreciation of oral evidence by the trial Court which had the opportunity of recording evidence and observing the demeanour of the witnesses. After giving our anxious consideration to several contentions urged on behalf of the appellant, we find that the evidence of PW-2 and 8 substantially corroborates with each other and is sufficient to come to a positive conclusion that charas packet was seized from the possession of the appellant.

44. It is also in evidence that some more charas packets were seized from below the kitchen table after removing sand. It was argued on behalf of the appellant that since the Hotel does not belong to the appellant, mere seizure of charas packets from the Hotel is not sufficient to fix up conscious possession of the appellant with reference to those charas packets, particularly when no statement of the appellant was recorded under Section 27 of the Indian Evidence Act. Here is a case where on being asked by the Investigating Officer whether he has any other, charas packets the appellant himself on his own removed the sand beneath the kitchen table and took out a plastic container from a hidden place and produced it, which contained charas packets. In our view, it is purely academic to consider the question whether this seizure is sufficient to connect the appellant with.conscious possession of charas packets. We have already held that one charas packet was seized from the pant pocket of the pant worn by the appellant. Theat is sufficient to prove the appellant's possession of a contraband drug and, therefore his conviction is liable to be confirmed. The question that some other charas packet was also seized from beneath the table and whether the appellant can be imputed with conscious possession, are purely academic in nature and hence we need not go into that academic question since the appellant is already found to be in physical possession of charas which was on his person.

45. It was also argued that the framing of a joint charge against the appellant and two other accused is bad in law. It is true that a joint charge is framed for possession of charas by accused No. 1 to accused No. 3. Admittedly, no charas was recovered from accused No. 2 and accused No. 3. If at all. the persons aggrieved by the framing of bad charge, should be accused No. 2 and accused No. 3. Since accused No. 2 and accused No. 3 are acquitted, no prejudice is caused to them: As far as accused No. 1, the appellant, is concerned, charas has been recovered not only from his personal possession, but also from under the ground in the kitchen, which was removed by him. The allegations in the charge-sheet and the allegation in the panchanama clearly show that the prosecution case is that charas was recovered from the possession of the appellant. Hence, the appellant knows what case he has to meet. Hence, the framing of a joint charge for accused No. 1 to accused No. 3 has not caused any prejudice to the appellant at all. If at all some prejudice may be caused to accused No. 2 and accused No. 3 but they have no grievance since they have been acquitted.

46. There is also a comment about proper questions not being put while examining the appellant under Section 313, Criminal Procedure Code. This point need not detain us long since the appellant's defence was one of total denial. He has no explanation to anything except a bald and wholesale denial. When the defence is one of total denial we cannot find that any prejudice is caused to the appellant for not being put any particular question separately or clubbing two or three questions, etc. Even at the time of hearing, the learned counsel for the appellant did not demonstrate to us as to what would have been the defence of the appellant if a particular question had been, put in a particular manner. Ultimately, the test is one of prejudice. If the appellant had made out a case either in the appeal memo or at the time of argument that a particular question is not put and therefore the appellant is prejudiced, then we could have considered that question to find out whether really any prejudice is caused to the appellant due to improper examination under Section 313 of the Criminal Procedure Code.

47. We have given our anxious consideration to all the contentions urged on behalf of the appellant and find that none of the contentions merit acceptance by this Court. Some of the minor points urged on behalf of the appellant do not merit scrutiny. On the whole we are satisfied that the prosecution has proved its case and the conviction of the appellant by the trial Court is fully justified. The trial Court was alive to the law bearing on the point and discussed the evidence in detail and has rightly held that the appellant was in possession of charas and therefore no interference is called for regarding the conviction of the appellant. As far as the question of sentence is concerned, the learned Special Judge has awarded only the minimum sentence as provided in Section 20 (b) (ii) and hence the question of sentence is not open to interference by this Court. We therefore find that there is no merit in the appeal and it has to fail.

48. In the result, the appeal fails and is dismissed. The conviction and sentence of the appellant are confirmed.

49. Appeal dismissed.