L.C. Bhadoo, J.@mdashThe accused/appellant has preferred this criminal appeal u/s 374(2) of the Code of Criminal Procedure being aggrieved by the judgment dated 3rd January, 2002 passed by the Special Judge, Ambikapur in Sessions Trial No. 8/2001 whereby learned Special Judge after holding the accused/appellant guilty for commission of the offence u/s 8 read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act, 1985''), sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- (one lac) and in default of payment of fine to further undergo rigorous imprisonment for three years.
2. The briefly stated prosecution case necessary for the disposal of this criminal appeal are that on 20-4-2001 at about 9.45 a.m. Sub Inspector (Probationary) Dhiraj Markam, posted at Police Station, Ambikapur received a credible information that one Rajendra alias Guduva, resident of Bramhapara is selling brown sugar (heroin) at his residence. On receiving this information he called two witnesses namely Sanjeev Kumar Sinha and Mahendra Singh, prepared a panchnama, copy of the same was sent to the Superintendent of Police through Constable No. 67 Laxmi Chand Gupta, and reached to the house of the accused/appellant where he informed the accused about his rights and gave notice u/s 50 of the Act, 1985. On this the accused/appellant gave his consent for search to Dhiraj Markam. On search it was found that in four packets of white polythin 65 sachets (Pudiya) of brown sugar were found in his possession. On weighing, the weight of the said brown sugar and polythin bag was found 8 gr. 900 mg. and after segregating the brown sugar its weight was found 2 gr. 800 mg. which was taken into possession, the case was registered, and after investigation the charge-sheet was filed in the Court of Special Judge. Learned Special Judge after framing the charge against the accused/appellant and recording the evidence of prosecution witnesses and statement of accused u/s 313 of the Cr.PC convicted and sentenced the accused/appellant as aforesaid.
3. I have heard learned Counsel for the accused/appellant Mrs. Hameeda Siddque and Mr. S.C. Verma, learned Panel Lawyer on behalf of the State.
4. Learned Counsel for the accused/appellant submits that she is not arguing the matter on merits of the case but as per the amended provisions of Sub-section (a) of Section 21 of the Act, 1985 (Amendment Act No. 9 of 2001) the quantity of recovered hereoin, i.e., 2 gr. 800 mg. comes under the small quantity, because as per the table prepared under Sub-Clause (vii) (a) and (xxiii) (a) of Section 2 of the Act the said quantity 2 gr. 800 mg. comes under the small quantity, and as per the table upto 5 gram of heroin has been categorized as ''small quantity''. Therefore, as per the amended provisions of Sub-section (a) of Section 21 of the Act, 1985 the maximum sentence which can be imposed upon the appellant is six months or with fine which may extend to ten thousand rupees or with both. She further submitted that since the accused is in police and judicial custody since 20th April, 2001 thereby he has already served more sentence then the sentence prescribed for the alleged offence under the law.
5. Learned Panel Lawyer also very fairly conceded that in the present case looking to the quantity of the heroin recovered from the possession of the accused/appellant the provisions of Sub-section (a) of Section 21 are attracted and the accused has already undergone the sentence.
6. Having heard learned Counsel for the parties and having perused the record; the provisions of Sections 21 and 22 of the Act, 1985 were amended vide the Amending Act No. 9 of 2001 which came into force w.e.f. 2nd October, 2001. The Act, 1985 contemplates severe and deterrent punishment as is evident from the minimum term of imprisonment prescribed in Sections 21 and 22 of the Act, 1985. It was found that a large number of cases, in which the accused were found to be in possession of small quantity of drugs, were really cases of drug addicts and not traffickers in narcotic drugs and psychotropic substances. As a result of the stringent bail provisions there were hardly any cases where such persons could obtain bail. Thus, the trials were pending for long periods and the accused languished in jail. u/s 27 of the Act, 1985 there was a marginal concession in favour of drug addicts by providing a reduced quantum of punishment if the accused could prove that the narcotic drug or psychotropic substance in his possession was intended for his personal consumption and not for sale or distribution. Therefore, the provisions of the Act, 1985 were amended by the, Amending Act which rationalized the structure of punishment under the Act by providing graded sentences linked to the quantity of narcotic drug or psychotropic substance in relation to which the offence was committed and application of strict bail provisions was also restricted.
7. Apart from these provisions the Amending Act, 2001 introduced further amendment by substituting new section for old Section 27 of the Act, 1985 and Section 32B was inserted by the Amending Act 9 of 2001 which prescribes the factors to be taken into account for imposing higher than the minimum punishment. Sections 41 to 43 which were substituted by the amendment deal with the power of issuing warrant and authorization, power of entry, search, seizure and arrest without warrant or authorization; and power of seizure and arrest in public places. Significant changes were made in Section 54 of the Act, which deals with the presumption to be applied in a trial under the Act arising from possession of illicit articles. Section 41(1) of the Amending Act 9 of 2001 is the section which determines the application or exclusion of the amending provisions, and reads as under :--
"41. Application of this Act to pending cases.-- (1) Notwithstanding anything contained in Sub-section (2) of Section 1, all cases pending before the Courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the Principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the Principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offence :
Provided that nothing in this section shall apply to cases pending in appeal."
8. By this section, Parliament has declared its intention to apply the amended provisions of the Act to : (a) all cases pending before the Court on 2nd October, 2001; (b) all cases under investigation as on that date and provides that these categories of cases shall be disposed of in accordance with the provisions of the Act, 1985 as amended by the Act of 2001. The proviso, however, makes an exception and excludes the application of the rationalized sentencing structure to cases pending in appeal.
9. Therefore, in view of the above the amended provisions of Sub-section (a) of Section 21 was made applicable to the cases pending trial and cases which were under investigation. In the present case, the accused was found in possession of heroin on 20th April, 2001 and the case was decided by the learned Special Judge after completion of the trial on 3rd January, 2002 therefore when these amended provisions came into operation, i.e., on 2nd October, 2001, the case against the accused/appellant was pending before the Special Judge, therefore the amended provision of Sub-section (a) of Section 21 of the Act, 1985 was applicable in the present case. However, it escaped the notice of the learned Special Judge and he convicted and sentenced the accused as per the old provision of Section 21 of the Act, 1985 and sentenced him to undergo 10 years rigorous imprisonment and to pay a fine of Rs. one lac. Whereas, as per the amended provision looking to the small quantity which was less than 5 gram, the maximum sentence which could have been imposed upon the accused/appellant was six months rigorous imprisonment, or with fine which may extend to ten thousand rupees, or with both.
10. Therefore, to this extent the sentencing part of the impugned judgment is not legal and looking to the quantity of the seized heroin the ends of justice would met if the accused/appellant is sentenced with six months rigorous imprisonment and to pay a fine of Rs. 10,000/- and in default to further undergo rigorous imprisonment of three months.
11. In the result, the appeal is partly allowed. While maintaining the conviction of the accused/appellant u/s 8 read with Section 21(a) of the Act, 1985 his sentence is reduced to six months rigorous imprisonment and to pay a fine of Rs. 10,000/-, in default of payment of fine amount to further undergo 3 months rigorous imprisonment. As the accused is in police and judicial custody since 20th April, 2001, therefore he has already served the sentence and, it is, therefore, directed that if the accused/appellant is not required in any other case, he be set on liberty forthwith.
