Siddhan vs State

V. Kanagaraj, J.—The above Criminal Appeal is preferred against the judgment of conviction and sentence dated 10.10.2001 rendered in

C.C. No. 74 of 1999 by the Court of Special Judge for E.C. and N.D.P.S. Act Cases, Salem.

The case of the prosecution is that on 24.12.1998 at 6.30 a.m., the appellant/accused was found in possession of 125 gms. of Opium without

any valid permit or licence and thus he committed the offence punishable u/s 8(c) r/w. Sec.18 of the N.D.P.S. Act, 1985.

The Court below, would conduct a full trial of the case, wherein on behalf of the prosecution, four witnesses would be examined for oral

evidence as P.Ws. 1 to 4 besides marking ten documents for documentary evidence as Exs.P. 1 to P.10 and four material objects as M.Os.1 to 4

and on behalf of the defence, one witness would be examined for oral evidence as D.W. 1 with no documents marked on their behalf.

In consideration of all the facts and circumstances of the case in the light of the evidence adduced, the Court below would find the

appellant/accused guilty of the charge u/s 8(c) r/w.18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and would sentence him as

aforementioned. Aggrieved, the appellant/accused has come forward to prefer the above criminal appeal on certain grounds as brought forth in the

grounds of appeal.

During arguments, the learned counsel for the appellant would confine himself only to the quantum of sentence and would submit that the Act has

been amended by Amendment Act 9/2001 with effects from 2.10.2001 thereby specifying the quantities to be treated as `small quantity'' and

`commercial quantity'' for the purposes of clauses (vii a) and (xxiii a) of Section 2 of the Act ; that in accordance with the said amendment,

regarding Opium, the `small quantity'' means 25 gms. and the `commercial quantity'' means 2.5 kg.; that since the appellant is alleged to have been

in possession of only 125 gms. of Opium, it would not fall neither under the category of `small quantity'' nor under the category of `commercial

quantity'' thus attracting the provisions of Section 18(c) of the N.D.P.S. Act wherein only the maximum punishment is prescribed as ten years and

a maximum fine of Rs.1 lakh, without prescribing any minimum punishment; that even though the amended provision came into force on 2.10.2001

and the judgment was delivered by the trial Court on 10.10.2001 i.e. well after the commencement of the amended Act, the new provisions are

not applied to the case in hand and only following the original provisions, the Court below had sentenced the appellant to undergo R.I. for a period

of ten years and to pay a fine of Rs.1 lakh in default to undergo R.I. for a period of two years, since it was the minimum punishment prescribed

then and would pray to apply the amended provisions to the case in hand.

The appellant/accused is found guilty of the offence punishable u/s 8(c) r/w.18 of the Narcotic Drugs and Psychotropic Substances Act, 1985

and as per the amended provision under Amendment Act No. 9/2001, the punishment for such offences, for which the appellant has been found

guilty is a sentence upto ten years Rigorous Imprisonment or with fine upto Rs.1 lakh or with both. Since according to the original provision of law,

prior to amendment, the minimum prescribed punishment was ten years R.I., without being able to go below that limit, the lower Court has

awarded the punishment of ten years R.I. in the case of the appellant and the learned counsel for the appellant would argue to the effect that had it

been for the Amended Act, the sentence would have been far less and the lower Court , though noted that the appellant is aged around 70 years,

since it was incapacitated from going below the then minimum punishment prescribed, has sentenced the appellant/accused to undergo R.I. for a

period of ten years and would urge this Court to modify the sentence of punishment from ten years as it had been ordered by the trial Court, to a

lesser punishment as it is warranted in the circumstances of the case, as per the amended act.

The learned counsel would further argue to the effect that the qualification as per the amended Section 41 of the Act is that it would not be

applicable to the cases pending in appeal on the date of commencement of the Act that was on 2.10.2001 whereas in the case in hand, the

judgment itself had been delivered on 10.10.2001 i.e. well after the commencement of the amended act but the amended provision of law had not

been brought to the notice of the lower Court as a result of which the lower Court, adopting the minimum prescribed punishment of ten years as in

the case of the old provision of law, had passed the sentence of imprisonment, lest, it would have definitely awarded lesser punishment in

consideration of its own estimate of the gravity of the offence for lesser punishment than one revealed in paragraph 32 of the judgment.

Further more, the learned counsel for the appellant would bring to the notice of this Court that the appellant is seriously ailing and if he is not

treated intensively, getting him released, it will endanger his very survival and would pray for the modified sentence of punishment in the altered

circumstances.

In the above circumstances, it is only desirable for this Court to decide in consideration of the age of the appellant being 70 and in further

application of the amended provision of law particularly regarding punishment wherein only the upper limit is fixed at ten years leaving it to the

discretion of the Court to decide the actual sentence to be undergone without prescribing the minimum punishment and since it comes to be known

that the appellant has already served the sentence for more than a year and further in consideration of the special circumstances involved in the

case in hand, this Court is of the view that the sentence already undergone by the appellant is sufficient to meet the ends of justice and the same is

decided accordingly.

In result,

(i)the above appeal suit is allowed in part.

(ii)The conviction of the appellant/accused for the offence

punishable u/s 8(c) r/w.18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is hereby confirmed.

(iii)But, the sentence of imprisonment is modified and reduced from ten years Rigorous Imprisonment, as it had been ordered by the lower Court in

accordance with the original provision of law, to the extent of period of sentence already undergone by the appellant/accused.

(iv)The sentence of fine ordered by the trial Court is hereby set aside.

(v)The appellant/accused is ordered to be released forthwith, unless he is required in any other case.