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2002 DIGILAW 314 (HP)

TOM MARSHALL v. STATE OF H. P.

2002-11-21

M.R.VERMA, R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.—On 31.5.2000 at about 4.15 p.m. Head Constable Yoginder Pal of Police Station, Manali, along with Constables Narain Chand, Jai Kishan and Ms. Suresh Kumari was present near Log Huts Manali in connection with routine patrolling. He happened to spot a foreigner coming from Log Huts side carrying a green and blue coloured bag on his back. On seeing the police the said foreigner, that is, the appellant, took a turn and started running. Suspecting that the appellant might be carrying some contraband, the police party was able to overpower the appellant. The appellant disclosed his identity. Though he claimed to be a Scottish National, he could not produce his passport. Head Constable Yoginder Pal then informed the appellant that since he was suspecting that the appellant was carrying some contraband, the appellant may opt for search either before a Magistrate or before some Gazetted Officer. The appellant consented to the search by the police. During the course of search of the bag, being carried by the appellant, charas in the form of sticks wrapped in a polyethylene bag was recovered, which on weighment was found to be 150 grams. Two samples weighing 25 grams each were taken out. The two samples and the remaining recovered Charas were separately sealed and taken into possession. The appellant after having been informed of the grounds, was arrested and on the basis of the report of Head Constable Yoginder Pal, a case for the offence under Section 20, Narcotic Drugs and Psycho tropic Substances Act, 1985 (for short : NDPS Act) came to be registered at Police Station Manali vide FIR No. 90 of 2000. 2. On the completion of the investigation, the appellant was sent up for trial. He was charged for the offence under Section 20, NDPS Act. The appellant pleaded guilty to the charge in the following terms: "Yes. I plead guilty to the charge. Charas was recovered from me." 3. Before recoiling the plea of guilt, the learned Special Judge had duly warned the appellant that under the law he was not bound to plead guilty and that if he pleaded guilty to the charge, he could be sentenced to minimum imprisonment for ten years and also to fine of rupees one lac. Inspite of such warning and time given to the appellant for reconsideration, he pleaded guilty to the charge. 4. Inspite of such warning and time given to the appellant for reconsideration, he pleaded guilty to the charge. 4. Accepting such plea of guilt on being satisfied that the plea of guilt had been voluntarily made, the learned Special Judge, Kullu, convicted the appellant for the offence under Section 20, NDPS Act, on 5.10.2000 and sentenced him to imprisonment for ten years and also to fine of Rs. one lac. In default of payment of fine, the appellant was sentenced to undergo imprisonment for a further period of one year. 5. On 8.1.2001 a petition dated 28.12.2000 was received in the registry of this Court from the appellant through the Superintendent Model Central Jail, Nahan, wherein a request was made by him for a meeting with the Honble Prime Minister of India. A grievance was also made by him with regard to the conviction and sentence imposed upon him. Such petition was treated as an appeal under Section 375(b), Code of Criminal Procedure, as to the extent and/or legality of the sentence imposed on the appellant. 6. Vide petition dated 27.6.2001, being Cr.M.P. No. 286/2001 the appellant prayed for his personal presence in the Court at the time of hearing of his appeal. Such request of the appellant was allowed on 31.10.2002 and the Superintendent Jail was directed to cause the production of the appellant on 14.11.2002 before this Court at the time of hearing of the appeal. 7. In pursuance of the order of this Court, the appellant was produced before this Court on 14.11.2002. An opportunity for personal hearing was also given to him. We have also heard the learned Legal Aid Counsel appointed for the appellant and the learned Additional Advocate General. 8. It may be stated that during the course of hearing of the appeal, the appellant, who was given an opportunity of personal hearing, reiterated his plea of guilt. He pleaded for leniency in view of small quantity of Charas involved and that such Charas was meant for his personal consumption on medical grounds. 9. There is no denying that as per the law in force as on the day of conviction of the appellant, the minimum sentence for the offence under Section 20, NDPS Act for possession of Charas irrespective of the extent of quantity, was imprisonment for ten years and fine of Rs. One lac. 9. There is no denying that as per the law in force as on the day of conviction of the appellant, the minimum sentence for the offence under Section 20, NDPS Act for possession of Charas irrespective of the extent of quantity, was imprisonment for ten years and fine of Rs. One lac. Therefore, the appellant, upon his conviction for the offence under Section 20 NDPS Act was awarded the minimum sentence as prescribed under the law. 10. Section 20 NDPS Act came to be amended vide Section 7 of the NDPS (Amendment) Act No. 9 of 2001, whereby the offence falling under Section 20(b) NDPS Act have been made punishable as under: "(i) where the offence involves small quantity, with imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees, or with both; (ii) where the offence involves quantity lesser than the 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 lac rupees; and (iii) where the offence involves commercial quantity, with rigorous imprisonment for a term which 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 lac rupees but which may extend to two lacs rupees." Thus, by way of amendment the sentence has been prescribed on the basis of the quantity of contraband involved. 11. Relying upon the provisions of Section 20, NDPS Act, as amended by Act No. 9 of 2001, it has been contended by the learned Counsel for the appellant that the quantity of Charas recovered from the appellant being only 150 grams, admittedly, is greater than small quantity and lesser than Commercial quantity. Therefore, the present case falls under (ii) above, wherein no minimum sentence is prescribed and a discretion has been given to the Court to award sentence for any period and impose fine upto ten years and rupees one lac keeping in view the facts and circumstances of the case. Therefore, the present case falls under (ii) above, wherein no minimum sentence is prescribed and a discretion has been given to the Court to award sentence for any period and impose fine upto ten years and rupees one lac keeping in view the facts and circumstances of the case. It was thus contended that keeping in view that the qjuantity of charas was only 150 grams and the fact that the appellant, a foreign National, has not been shown to be a previous convict, a lenient view is required to be taken in the matter of sentence. 12. The learned Additional Advocate General, on the other hand, has contended that the amended provisions of Section 20, NDPS Act, as amended by Act No. 9 of 2001 cannot be pressed into service by the appellant since he stood convicted and sentenced prior to the coming into force of the Amendment Act No. 9 of 2001. In support of his contention the learned Additional Advocate General has placed reliance on Section 41 of the Amendment Act No. 9 of 2001 which makes the amendments carried in the Principal NDPS Act applicable to all cases pending trial or under investigation. However, the proviso to this Section 41 of the Amendment Act No. 9 of 2001 says that the amended provisions shall not apply to the cases pending in appeal. 13. Section 41(1) of the Amendment Act No. 9 of 2001, provides:— "(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." 14. In Ram Singh v. State ofHaryana, 2002 (3) Recent Criminal Reports 728, the accused therein was convicted under Section 15, NDPS Act and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac, which was the minimum sentence under the Act as then in force. In Ram Singh v. State ofHaryana, 2002 (3) Recent Criminal Reports 728, the accused therein was convicted under Section 15, NDPS Act and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac, which was the minimum sentence under the Act as then in force. Section 15, NDPS Act was also amended by the Amendment Act No. 9 of 2001 and under the amended provisions as contained in Section 15(b) the minimum sentence was done away with and instead a discretion was given to the Court to award lesser sentence. The amendments to Section 15 of the Principal Act vide Amendment Act No. 9 of 2001 are similar to the amendments made in Section 20 of the Principal Act. 15. A contention was raised in the appeal by the accused that he was entitled to lesser punishment in view of the amended provisions. The proviso to Section 41(1) of the Amendment Act No. 9 of 2001 was pressed into service on behalf of the State of Haryana to contend that the benefit of the amended provisions were not available to the accused in appeal, who was convicted and sentenced prior to the coming into force of the Amendment Act No. 9 of 2001. 16. A Division Bench of the Punjab and Haryana High Court after having gone into the question of the validity of the proviso to Section 41(1.) of the Amendment Act No. 9 of 2001, held that the exclusion of benefit of liberalised provisions of the Amendment Act No. 9 of 2001 to cases pending in appeal is without intelligible differential and without having any reasonable nexus with the object to be achieved. The proviso to Section 41(1) of the Amendment Act No. 9 was, therefore struck down and it was held that the provisions contained in the Amendment Act No. 9 of 2001 shall be applicable to all cases pending before the Courts or under investigation at the commencement of the said Act and shall be disposed of in accordance with the provisions of the Principal Act as amended by Amendment Act No. 9 of 2001 irrespective of the fact whether such cases are pending in appeal or before the trial Court. 17. We are in full agreement with the view taken by the Division Bench of the High Court of Punjab and Haryana. 17. We are in full agreement with the view taken by the Division Bench of the High Court of Punjab and Haryana. It is, therefore, held that the benefit of the amended provisions vide Amendment Act No. 9 of 2001 would also be available to the cases pending in appeal. 18. In the light of above, we now proceed to examine the question of adequacy of the sentence imposed upon the appellant by the learned trial Court. 19. As stated above, the quantity of charas recovered from the appellant is only 150 grams, which is only 50 grams in excess of the "small quantity" and much less the "commercial quantity". The appellant is a foreign National with no previous conviction to his credit. He has voluntarily pleaded guilty. Taking into consideration all these facts, specially the quantity of the charas recovered and the absence of allegations that such charas was meant for sale or that the appellant attempted to sell the same, we are of the view that the sentence imposed upon the accused is on a higher side and the same is required to be reduced. 20. As a result, the present appeal is partly allowed and while maintaining the conviction of the appellant for the offence under Section 20, NDPS Act the sentence imposed upon him by the learned trial Court is modified and reduced to simple imprisonment for two years and fine of rupees ten thousand. In default of payment of fine, the appellant shall undergo simple imprisonment for a further period of six months. The case property to be dealt with as per orders/directions of the learned trial Court. 21. Let a copy of this judgment be gent to the appellant through Superintendent, Model Central Jail, Kanda, for information. 22. Before parting we place on record our appreciation for the valuable assistance rendered by the learned legal aid counsel appointed for the appellant. Appeal partly allowed.