Rajpal Singh vs State of Punjab

T.P.S. Mann, J.—This appeal is directed against the judgment and order dated 26.7.2001 passed by Judge, Special Court, Mansa whereby the Appellant was convicted u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act'') and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-and in default of payment of fine, to undergo further rigorous imprisonment for one year.

According to the prosecution, the Appellant was found in possession of 10 kgs of poppy straw on August 20, 1997. For keeping the same in possession, he did not have any permit or licence. As such, he violated the provisions of Section 15 of the Act.

After having been convicted and sentenced by the trial Court on 26.7.2001, the Appellant filed the present appeal on 24.10.2002 alongwith prayer for condonation of delay. Vide order dated 7.4.2003, the Court condoned the delay in filing of the appeal. The appeal was, thereafter, admitted.

At the time of commission of the offence by the Appellant, the law required imposition of minimum sentence of ten years and a fine of Rs. 1,00,000/-for committing an offence u/s 15 of the Act. However, vide Amending Act No. 9 of 2001, the Parliament introduced the concept of commercial quantity in relation to Narcotic Drugs and Psychotropic Substances by adding Clause (viiia) u/s 2 of the Act, which defined the said term as any quantity greater than a quantity specified by Central Government by notification in the official gazettee . A notification was issued on October 09, 2001 specifying in respect of 239 Narcotic Drugs and Psychotropic Substances, as to what would be "small quantity" and "commercial quantity". In relation to poppy husk, the quantity specified was 50 kgs. More than that was considered as commercial quantity. However, for a person being tried for possessing poppy husk less than the commercial quantity, the Courts were granted discretion to award any sentence upto ten years and fine upto Rs. 1,00,000/-.

The Amending Act came into force on 2.10.2001. Section 41 of the Amending Act stipulated that the amendment would not have any application if the trial had already concluded and the matter was pending in the appeal.

In Basheer @ N.P. Basheer v. State of Kerala 2004(1) RCR 1008, the Hon''ble Supreme Court made the Amending Act applicable even to those cases where the trial had already concluded before 2.10.2001 but the appeal was filed after the said date. Relevant observation made by the Hon''ble Supreme Court are as under:

Thus, in our view, the Rubicon indicated by Parliament is the conclusion of the trial and pendency of appeal. In the cases of pending trials, and cases pending investigation, the trial is yet to conclude; hence, the retrospective mollification of the rigour of punishment has been made applicable. In the cases where the trials are concluded and appeals are pending, the application of the amended Act appears to have been excluded so as to preclude the possible contingency of reopening concluded trials. In our judgment, the classification is very much rational and based on clearly intelligible differentia, which has rational nexus with one of the objectives to be achieved by the classification. There is one exceptional situation, however, which may produce an anomalous result. If the trial had just concluded before 2.10.2001, but the appeal is filed after 2.10.2001, it cannot be said that the appeal was pending as on the date of the coming into force of the Amending Act, and the amendment would be applicable even in such cases. The observations of this Court in Nallimilli''s case (supra) would apply to such a case. The possibility of such a fortuitous case would not be strong enough reason to attract the wrath of Article 14 and is constitutional consequences. Hence, we are unable to accept the contention that the proviso to Section 41 of the Amending Act is hit by Article 14. (emphasis mine)

In the present case, the trial of the Appellant was over before the coming into force of the Amending Act. However, the appeal was filed after 2.10.2001. Keeping in view the dictum of law as laid down in the case of Basheer @ N.P. Basheer (supra), I am of the view that the case of the Appellant is also covered in so far as extending the benefit of the Amending Act to him is concerned.

The case relates to recovery of 10 kgs. of poppy straw from the Appellant which is less than the commercial quantity. For such an offence, the Appellant is not required to undergo minimum sentence of ten years and to pay a minimum fine of Rs. 1,00,000/-. Instead, he is required to undergo imprisonment upto ten years and to pay fine upto Rs. 1,00,000/-.

The Appellant has been facing the agony of criminal prosecution for the last more than 13 years. When he was heard on the quantum of sentence by the trial Court, he had stated that he was a married person and having three children. He was never convicted earlier for any offence.

As per the custody certificate already produced by the learned State counsel, the Appellant has undergone an actual period of 2 years 3 months and 24 days in jail. It has also been stated therein that the Appellant has not been convicted in any other case and no case was pending against him.

Taking into consideration the totality of the circumstances, the Court is of the view that the Appellant is required to undergo only that much of sentence of imprisonment which he has already undergone. However, he can be directed to pay an amount of Rs. 10,000/- as fine.

Resultantly, the conviction of the Appellant u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is maintained. He is sentenced to undergo the term of imprisonment which he has already undergone. He shall pay an amount of Rs. 10,000/-as fine and in default thereof, he shall undergo rigorous imprisonment for six months.

But for the modification in the quantum of sentence of imprisonment and fine, as indicated above, the appeal fails and is, therefore, dismissed.