JUDGMENT : The appellant is the accused in S.C. No. 50/2004 on the file of 1st Additional District and Sessions Court, Ernakulam. The above case is chargesheeted by the Intelligence Officer, Directorate of Revenue, Kochi against the appellant alleging offence punishable under Section 8(C) read with Section 20 (B) of The Narcotic Drugs and Psychotropic Substances Act, 1985(NDPS Act for short). 2. The prosecution case is that the Officers of the Revenue Intelligence Unit found the accused in front of a closed shop, Cochin Tractors, Shop No. 1, GCDA Stadium Complex, near KSRTC bus stand, Ernakulam, in possession of 930 grams of Hashish Oil kept for sale, concealed in a carry bag, with a print on both sides as “Royal Tex”. It was on 04.01.2004. Hence it is alleged that the accused committed the offence under Section 20(B) of the NDPS Act. 3. The Court framed the charged under Section 8(c) read with Section 20 (B) of the NDPS Act. 4. To substantiate the case, the prosecution examined PW1 to PW4. Exts.P1 to P13 are the exhibits marked on the side of the prosecution. Ext. D1 is also marked on the side of defence. MO1 to MO3 are the material objects. 5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 20 (b) of the NDPS Act. 6. Thereafter, the appellant/accused was sentenced under Section 20 (A) of the NDPS Act. He was sentenced to undergo rigorous imprisonment for a period of six months and also to pay a fine of Rs.7,000/-. In default of payment of fine, the accused was directed to undergo simple imprisonment for a further period of one month. Aggrieved by the conviction and sentence, this Criminal Appeal is filed. 7. Heard the learned counsel for the appellant and learned Standing Counsel for the Directorate of Revenue Intelligence. 8. The point for consideration in this appeal is whether the conviction and sentence imposed on the appellant by the trial court is sustainable. 9. On perusal of the court charge, in my opinion, the trial court has not correctly framed the charge. The trial court framed charge in the following manner. “I, N. Sadanandan, B.A., L.L.B., I Additional Sessions Judge, Ernakulam hereby charge you: V.V.Tomy, S/o Varkey Devassia Vayalil veedu, Mullarikudi P.O., Kailasam, Nedumkandam, Idukki District. 9. On perusal of the court charge, in my opinion, the trial court has not correctly framed the charge. The trial court framed charge in the following manner. “I, N. Sadanandan, B.A., L.L.B., I Additional Sessions Judge, Ernakulam hereby charge you: V.V.Tomy, S/o Varkey Devassia Vayalil veedu, Mullarikudi P.O., Kailasam, Nedumkandam, Idukki District. as follows:- That you accused V.V.Tomy on 4-1-2004 at about 5.30.p.m., Cws 3 to 5 the Intelligence Officers of Directorate of Revenue Intelligence Regional Unit and partly found you infront of a closed shop 'Cochin Tractors' Shop No.1, GCDA Stadium Complex, near KSRTC bus stand Ernakulam in possession of 930 grams of Hashish Oil kept concealed in a carry bag 'Royal Tex' printed on both sides. That you, accused 1 to 4, have thereby alleged to have committed the offence punishable under Section 8(c) r/w Sec. 20(B) of the N.D.P.S.Act. And I direct that you accused be tried for the aforesaid offence within the cognizance of this court. Dated this the 2th day of June, 2004.” 10. It is to be noted that the respondent submitted the complaint alleging offence under Section 8 (C) read with Section 20 (B) of NDPS Act. The Section 20 of the NDPS Act, which was in existence as on the date of alleged seizure is extracted here under; “20. Dated this the 2th day of June, 2004.” 10. It is to be noted that the respondent submitted the complaint alleging offence under Section 8 (C) read with Section 20 (B) of NDPS Act. The Section 20 of the NDPS Act, which was in existence as on the date of alleged seizure is extracted here under; “20. Punishment for contravention in relation to cannabis plant and cannabis- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder:- (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable- (i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b),- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees or without both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term with shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.” 11. A reading of the above Section, it is clear that the complaint is filed alleging offence punishable under Section 20(b) ii (B) of NDPS Act. But in the Court charged, it is mentioned as Section 8(C) read with Section 20(B) of NDPS Act. This is not very clear. Section 20(b) ii (B) relates to the possession of Narcotic Drugs involving quantity lesser than commercial quantity, but greater than small quantity. That means the complaint is filed by the respondent for prosecuting the accused for the possession of the intermediary quantity. In the concluding portion of the trial court judgment, it is stated that, the accused is guilty under Section 20(b). That means the complaint is filed by the respondent for prosecuting the accused for the possession of the intermediary quantity. In the concluding portion of the trial court judgment, it is stated that, the accused is guilty under Section 20(b). Thereafter, while imposing sentence it is stated that, the accused is sentenced under Section 20 (A). How lightly the court takes these things is evident from this case. This is a wrong approach by the trial court. Actually, the appellant ought to have been convicted and sentenced under Section 20(b) ii (B) of the NDPS Act. The narration of the Section in court charge should be very clear. The criminal courts should strictly follow the provisions in Chapter XVII of the Criminal Procedure Code while framing charges. Moreover, while convicting and sentencing an accused, the offences for which they are convicted and sentences imposed on different sections should be clear without any ambiguity. Chapter XXVII of the Code deals with judgments of criminal court. If the accused is acquitted, the judgment should contain the offence of which the accused is acquitted. Section 354 Cr.P.C mandate the same. This section is a mandatory provision, which should be followed by all criminal courts while passing judgments. This should be scrupulously followed by the trial court while writing a judgment, either convicting or acquitting an accused. 12. The trial court found that, the quantity found in possession of the appellant was 930 grams of hashish oil, which is a small quantity. This is also wrong. As per S.O. 1055(E) dated 19.10.2001, pub. in the Gaz. of India, Extra, Pt.II, S.3(ii), dated 19.10.2001 the small quantity and commercial quantity are prescribed. In the above notification, small quantity and commercial quantity are prescribed separately. Sl. No. 23 in the above notification is cannabis resin, CHARAS and hashish. The chemical name is mentioned as extract and tinctures of cannabis. The small quantity is mentioned as 100 gms. Commercial quantity is mentioned as 1 kg. That means if an accused is found in possession above 100 gm and below 1 kg. of Hashish it is intermediate quantity. Therefore, the correct Section on which the accused ought to have been convicted and sentenced was under Section 20 (b) ii (B) of NDPS Act. Commercial quantity is mentioned as 1 kg. That means if an accused is found in possession above 100 gm and below 1 kg. of Hashish it is intermediate quantity. Therefore, the correct Section on which the accused ought to have been convicted and sentenced was under Section 20 (b) ii (B) of NDPS Act. But the trial court convicted the accused under Section 20(b) of NDPS Act and imposed the punishment of six months under Section 20(A) of NDPS Act. The manner in which the trial court framed the charge and the manner in which the trial court convicted and sentenced the accused in a casual manner and without application of mind. 13. But an appellate court can interfere in such situation only within the frame work of Sections 464 & 215 of Cr.P.C. Unless there is a failure of justice or substantial prejudice to an accused, the appellate court can not interfere with the conviction and sentence merely because a wrong Section is noted in the charge or in the judgment. The Apex Court in Santhosh Kumari Vs. State of J and K and Ors. ( AIR 2011 SC 3402 ) observed like this; “7. Like all procedural laws, the Code of Criminal Procedure is devised to sub serve the ends of justice and not to frustrate them by mere technicalities. It regards some of its provisions as vital but others not, and a breach of the latter is a curable irregularity unless the accused is prejudiced thereby. It places errors in the charge, or even a total absence of a charge in the curable class. That is why we have provisions like Sections 215 and 464 in the code of Criminal Procedure, 1973. The object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. If, therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the framing of the charge is not invalidated. The essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. The essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. Sections 34, 114 and 149 of the IPC provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and as explained by five Judge Constitution Bench of this Court in Willie Slavey v. The State of M.P., MANU/SC/0038/1955 : 1955 (2) SCR 1140 at p.1189, the charge is a rolled up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.” 14. Similarly in Chandra Prakash Vs. State of Rajasthan ( 2014 8 SCC 340 ) also the Apex Court consider this point, relying Santhosh Kumari's case (supra). The relevant paragraph is extracted hereunder; “66. The next aspect which needs to be adverted to is non-framing of specific charge. On a perusal of the record, we find that the learned trial Judge has framed the charges specifically by putting the charges to the accused. The purpose of framing of charges is that the accused should be informed with certainty and accuracy of the charge brought against him. There should not be vagueness. The accused must know the scope and particulars in detail. 67. In K. Prema S. Rao v. Yadla Srinivasa Rao MANU/SC/0890/2002 : (2003) 1 SCC 217 , the Court opined that though the charge specifically Under Section 306 Indian Penal Code was not framed, yet all the ingredients constituting the offence were mentioned in the statement of charges. In that context, a three-Judge Bench of this court ruled that mere omission or defect in framing of charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The said principle has been reiterated in Dalbir Singh v. State of U.P. MANU/SC/0320/2004 : (2004) 5 SCC 334 , State of U.P. v. Paras Nath Singh MANU/SC/0973/2009 : (2009) 6 SCC 372 and Anna Reddy Sambasiva Reddy v. State of A.P. MANU/SC/0640/2009 : (2009) 12 SCC 546 . 68. In the case at hand, as has been stated earlier, the charges have been framed and we do not find any vagueness. 68. In the case at hand, as has been stated earlier, the charges have been framed and we do not find any vagueness. That apart, neither any prejudice has been caused not has there been any failure of justice. Thus, the submission of Mr.Jain in this regard leaves us unimpressed.” 15. Similarly in State (N.C.T. of Delhi) Vs. Navjot Sandhu and Ors. ( 2005 11 SCC 600 ) also the Apex Court considered this point. The relevant paragraph is extracted hereunder; “7. (i) We now turn to the next contention of the charges being defective. According to Shri. Ram Jethmalani, the first charge which is a charge under Section 120B IPC is utterly confusing. It is pointed out that a conspiracy to wage war and to commit a terrorist act is punishable under Section 121A IPC and Section 3(3) of the POTA respectively. Therefore, according to the learned counsel, the charge under Section 120B is misplaced. It is also contended that the charge does not set out in clear terms, the exact period during which the conspiracy was allegedly hatched. The learned counsel further submits that the alleged confessional statements on which the prosecution relied would clearly show that the conspiracy started only in the first week of December, 2001, yet the period of offence was stated to be “on or before 13.12.2001”. (ii) It is settled law that a 'fundamental defect' should be found in the charges if the Court has to quash it. Whether the accused was misled and whether there was reasonable possibility of prejudice being caused to the accused on account of defective charges are relevant considerations in judging the effect of wrong or deficient charges. Section 215 of Cr.P.C. makes it clear that no error or omission in stating either the offence or the particulars required to be stated shall be regarded as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. The test of prejudice or reasonable possibility of prejudice was applied by this Court in William Slaney's case MANU/SC/0038/1955 : 1956 CriLJ 291 in testing the argument based on the omission, error or irregularity in framing the charges. The same test was also applied in State of A.P. V. C. Ganeswar Rao MANU/SC/0070/1963 : [1964] 3 SCR 297. The test of prejudice or reasonable possibility of prejudice was applied by this Court in William Slaney's case MANU/SC/0038/1955 : 1956 CriLJ 291 in testing the argument based on the omission, error or irregularity in framing the charges. The same test was also applied in State of A.P. V. C. Ganeswar Rao MANU/SC/0070/1963 : [1964] 3 SCR 297. It has not been demonstrated in the instant case as to how the accused or any of them were misled or any prejudice was caused to them on account of the alleged defects in framing of charges. No such objection was even taken before the trial Court. As pointed out in William Slaney's case (para 45 of AIR), it will always be material to consider whether the objection to the nature of charge was taken at an early stage. To the same effect are the observations in Ganewsar Rao's case (supra). It is difficult to spell out with exactitude the details relating to the starting point of conspiracy. As pointed out in Esher Singh v, State of A.P. MANU/SC/0223/2004: (2004) 11 SCC 585 , it is not always possible “to give affirmative evidence about the date of formation of the criminal consipiracy”. We do not think that if instead of mentioning 'the first week of December, 2001' the wording 'before December, 2001' is employed, the prosecution should fail merely for that reason. The accused cannot be said to have been misled or prejudiced on that account. On the other hand, it is more than clear that the accused did understand the case they were called upon to meet. The question whether Section 120B applies to POTA offences or Section 3(3) alone applies is not a matter on which a definite conclusion should be reached ahead of the trial. It is not uncommon that the offence alleged might seemingly fall under more than one provision and sometimes it may not be easy to form a definite opinion as to the Section in which the offence appropriately falls. Hence, charges are often framed by way of abundant caution. Assuming that an inapplicable provision has been mentioned, it is no ground to set aside the charges and invalidate the trial.” 16. Division Bench of this Court in Raghava Nadar Reghu and Ors. Vs. The State (1988 Crl. LJ 1364) also consider this point, the relevant paragraph is extracted hereunder; "38. Assuming that an inapplicable provision has been mentioned, it is no ground to set aside the charges and invalidate the trial.” 16. Division Bench of this Court in Raghava Nadar Reghu and Ors. Vs. The State (1988 Crl. LJ 1364) also consider this point, the relevant paragraph is extracted hereunder; "38. Now, we shall consider the question of prejudice. In considering the question of prejudice, the Supreme Court has said that the Court is bound to examine whether actual prejudice has been caused in the trial of the case. What exactly is prejudice in the context has been said by Bose J. in MANU/SC/0038/1955 : 1956 CriLJ 291 thus : "Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as on adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. Truly, the Court is bound to look at the substance of the matter. It is the prime duty of the Court to administer justice. To punish the guilty is part of that administration of justice and is as important as giving protection to the innocent "Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labrynth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks or unjust conviction”. Vide MANU/SC/0038/1955 : 1956 CriLJ 291. 39. Considering the facts of this case, we hold that no prejudice had been caused to the accused in the matter of an omission to frame a specific charge under Section 452, IPC as against accused 2 and 3 and the nondisclosure of the specific instruments used by each accused for the commission of the offence in regard to the charge under Section 302 read with Section 34, IPC. The charge under Section 452 is a minor or rather a secondary charge when the accused are primarily charged with the offence under Section 302 read with Section 34 and convicted for the same.” 17. In the light of the above principle laid down by the Apex Court and this Court I am not in a position to interfere with the impugned judgments based on the contention that, the trial court has not framed the Court charge in a proper manner or the trial court convicted and sentenced without specifying or mentioning the Sections under which the accused is convicted and sentenced. If there is no substantial prejudice to the accused, the judgment need not be set aside for those reasons. If possible, the appellate court can also correct these mistakes. 18. It is true that, the trial court found that, the accused is guilty under Section 20 (b) of the NDPS Act. Actually, the trial court ought to have used Section 20 (b) ii (B) of the NDPS Act. But it is true that, the trial court sentenced the accused using Section 20 (b) ii (A), treating the quantity seized as small quantity. This is factually wrong. The trial court imposed the maximum sentence under Section 20(b)ii(A). The quantity of Hashish oil seized is 930 grams. This is not a small quantity but an intermediary quantity. The conviction and sentence ought to have been under Section 20 (b)(ii)B of NDPS Act. As far as Section 20(b) ii (B) of the NDPS Act is concerned, there is no minimum sentence prescribed. The Section only says that the accused can be sentenced with rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to 1 lakhs rupees. In this case, the trial court imposed the punishment of six months. Therefore, it can not be said that the sentence imposed is incorrect. But it may be inadequate. 19. Moreover, I perused the oral and documentary evidence adduced by the respondent in this case. PW1 is the independent witnesses. PW2 is the Detecting Officer. PW3 is the Officer, who accompanied by PW2. PW4 is the Senior Intelligence Officer. The trial court considered the oral and documentary evidence in detail. The trial court considered the appellant's contention and found that the mandatory provisions of NDPS Act are not violated in this case. PW1 is the independent witnesses. PW2 is the Detecting Officer. PW3 is the Officer, who accompanied by PW2. PW4 is the Senior Intelligence Officer. The trial court considered the oral and documentary evidence in detail. The trial court considered the appellant's contention and found that the mandatory provisions of NDPS Act are not violated in this case. The trial court after considering the contention of the appellant, rejected the same. The counsel for the appellant relied the judgment of the Apex Court in Vijay Sinh Chandubha Jadeja Vs. State of Gujarat ( 2011 1 SCC 609 ) to content that there is a violation of Section 50 of the NDPS Act. This point is considered by trial court in detail. The trial court found that there is no violation of Section 50 of the NDPS Act. The trial court found that, Ext.P4 is the declaration given by the accused under Section 50 of the NDPS Act. I perused Ext.P4. I see no reason to interfere with the finding of the trial court about the violation of Section 50 of the NDPS Act. As I said earlier, the trial court considered the evidence in detail. 20. The counsel for the appellant argued based on Ext.D1 document. Ext.D1 is the photocopy of the register of Orappankal Tourist Home, Kattappana for the period from 3.1.2004 to 5.1.2004. The appellant was trying to take a plea of alibi. But the trial court considered the evidence of DW1 along with Ext.D1 and rejected it. In page 20 of the impugned judgment, this is considered in detail. The trial court found that the departure time noted in Ext.D1 is 2.10 pm. The evidence adduced by DW1 will not be sufficient to say that the accused is not available at the place of occurrence, and he is not involved in this case. As I said earlier, the trial court considered each and every point raised by the appellant. Therefore, I find no reason to interfere with the conviction and sentence imposed on the appellant. 21. The trial court wrongly sentenced the accused under Section 20(b)(ii)(A) of NDPS Act. It can be treated only as a clerical mistake. The correct section is Section 20(b)(ii)B of NDPS Act. Therefore, I find no reason to interfere with the conviction and sentence imposed on the appellant. 21. The trial court wrongly sentenced the accused under Section 20(b)(ii)(A) of NDPS Act. It can be treated only as a clerical mistake. The correct section is Section 20(b)(ii)B of NDPS Act. This Court need not interfere with the conviction and sentence imposed on the appellant in the light of Section 465 of Cr.P.C. In Section 20(b)(ii)(B) of NDPS Act, there is no minimum sentence prescribed. The trial court imposed only a sentence of six months. Of course the sentence is inadequate. But no criminal antecedents are alleged against the appellant. The alleged seizure, in this case, was on 4.1.2004. Now 16 years elapsed. At this distance of time, I don't want to interfere with the sentence imposed by taking any suo motu revision. The sentence portion is not challenged by the respondents also. Considering the entire facts and circumstances of the case, I confirm the conviction and sentence imposed on the appellant, treating the conviction and sentence under section 20(b)(ii)(B) of NDPS Act. Hence, this Criminal Appeal is dismissed.