JUDGMENT - PARKAR S.S., J.:---This appeal has been filed through jail by the appellant who was convicted under the provisions of N.D.P.S. Act and Customs Act by the judgment and order dated 25-6-1999 delivered by the Special Judge, Greater Mumbai in N.D.P.S. Special Case No. 358 of 1997. 2. The prosecution case briefly stated is as follows:- The appellant who is a national of Zaire an African country was found in possession of 3 kgs. of brown powder. The seizure was made by the Customs Officers from Room No. 106 of Hotel Juhu Residency, Juhu Tara Road, Mumbai on 3-5-1997. He was having air ticket of Indian Airlines for Delhi-Mumbai and one Kenyan Airways ticket for Sector Nairobi-Mumbai-Adisababa-Entebe-Nairobi. On examination of cloth bags found in the room the brown powder was found packed in a polythene bags. The total quantity of brown powder recovered from the room was 3 kgs. Heroin was detected in the brown powder in the field test carried out by the officers. Three samples of 5 gms, each were drawn from the brown powder recovered from the room. Seizure panchanama was drawn. After the seizure the statement of the appellant was recorded by the Customs Officers. In his statement the appellant had mentioned that he had contracted AIDS from Zairean lady with whom he had relations. He had indulged I the narcotic drugs for raising money to meet the expenses for the treatment of AIDS. Three samples were sent to three laboratories. One sample was sent to Forensic Science Laboratory at Kalina, Mumbai, another sample was sent to Dy.C.C. at Ballard Estate, Mumbai and the third sample was sent to Central Revenue Control Laboratory at New Delhi. As per the report of Forensic Science Laboratory, Kalina, Mumbai Exh. 25, the sample contained 5% heroin. As per the report of Dy.C.C., Ballard Estate, Mumbai Exh. 15 there is only mention of the presence of heroin i.e. diacetyl morphine without giving percentage of the heroin found in the powder. There is third report of Central Revenue Control Laboratory, New Delhi Exh. 17, according to which the sample contained 9.5% diacetyl morphine. After the investigation was over, prosecution was lodged against the appellant. 3. 15 there is only mention of the presence of heroin i.e. diacetyl morphine without giving percentage of the heroin found in the powder. There is third report of Central Revenue Control Laboratory, New Delhi Exh. 17, according to which the sample contained 9.5% diacetyl morphine. After the investigation was over, prosecution was lodged against the appellant. 3. Before the Special Judge charges were framed against the appellant firstly for offences under section 8(c) and under section 29 of the N.D.P.S. Act, secondly for offences under sections 8(c) and 21 of the N.D.P.S. Act, thirdly for offence under section 30 of the N.D.P.S. Act and lastly for offence under section 135-A of the Customs Act, to which he pleaded not guilty. On behalf of the prosecution five witnesses were examined for proving the prosecution case. The defence of the accused was of denial. 4. After going through the entire evidence on record the learned Special Judge, Greater Mumbai by his judgment and order dated 25-6-1999 convicted the appellant for offence under section 21 of the N.D.P.S. Act and sentenced him to R.I. for 10 years and to pay a fine of Rs. 1,00,000/- in default R.I. for six months. He was next convicted for offence under section 30 of the N.D.P.S. Act and sentenced to R.I. for 5 years and to pay a fine of Rs. 50,000/- in default R.I. for three months. Lastly, he was convicted for offence under section 135-A of the Customs Act and sentenced to RI for 18 months. The substantive sentences were directed to run concurrently. The said judgement and order is under challenge in this appeal. 5. The learned defence Advocate did not challenge the conviction of the accused before me but urged to reduce the sentence to already undergone by the appellant, which is about six years and four and half months, by applying the amended section 21 of the Act. It is contended that quantity of contraband found with the appellant was less than commercial quantity though more than small quantity and, therefore, under the provisions of section 21(b) of the amended Act the appellant is liable to be sentenced up to the maximum of 10 years of imprisonment and fine up to one lack rupees and not to minimum sentence of 10 years and one lac rupees fine as awarded by the trial Court. 6. 6. So far as the report of the Dy. C.C. Ballard Estate, Mumbai Exh. 15 is concerned, it only mentions the presence of heroin i.e. diacetyl morphine in the sample without giving percentage. The report of Forensic Science Laboratory, Kalina, Mumbai Exh. 25 mentions that the sample contained 5% of heroin which would amount to 150 gms. out of the 3 kgs. of brown powder found with the appellant. As per the report of Central Revenues Control Laboratory, New Delhi Exh. 17, the sample contained 9.5% of diacetyl morphine which would come to 285 gms. or more than commercial quantity of 250 grams. It is not in dispute that the small quantity prescribed by the Act is 5 gms. While the commercial quantity is 250 gms. and above. 7. Mr. Khan contends that out of the two reports the report which favours the appellant-accused should be relied on and, therefore, the report of the Forensic Science Laboratory, Mumbai, should be relied, according to which sample contained 5% heroin. 8. He further argued that the report of Delhi Laboratory Exh. 17 is no reliable. He points out that though the sample was sent by letter dated 5-5-1997 to Central Revenue Control Laboratory, New Delhi the facsimile of the office seal of the Customs Department was not put in order to ensure that the same sample was received by that laboratory. There is absence of the facsimile seal of the Customs on the letter dated 5-5-1997. There is also no corresponding mention in the report of the Delhi Laboratory that the facsimile seal was found to be correct as mentioned in the report Exh. 25 of the Forensic Science Laboratory, Mumbai. He, therefore, submitted that the prosecution has not proved beyond doubt that the sample sent to the said laboratory was the same which was taken from the contraband seized from the appellant. I find substance in the argument of Mr. Khan and this fact has not been disputed by Mr. Thakur on behalf of the respondent No. 1. 9. He, therefore, submitted that the prosecution has not proved beyond doubt that the sample sent to the said laboratory was the same which was taken from the contraband seized from the appellant. I find substance in the argument of Mr. Khan and this fact has not been disputed by Mr. Thakur on behalf of the respondent No. 1. 9. The provisions of section 21 were amended by Act No. 9 of 2001 which came into effect from 2nd October, 2001 whereby the rigour of awarding minimum punishment for the contravention of the provisions of the Act has been alleviated by making distinction between small quantity, commercial quantity and the quantity which is lesser than the commercial quantity but greater than the small quantity for the purpose of punishment. Where the contravention is in respect of small quantity of the contraband the accused is liable to be punished with rigorous imprisonment for a term which may extend to six months or with fine which may extend to ten thousand rupees or with both under Clause (a) of section 21 of the Act. If the contravention involves quantity lesser than commercial quantity but greater than the small quantity the accused is liable to be punished with rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to one lakh rupees under Clause (b) of section 21 of the Act. Where the contravention involves commercial quantity the accused is liable to be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 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 under Clause (c) of section 21. Of course there is a proviso under which the Court has got discretion, for the special reasons to be recorded in the judgment, to impose the fine exceeding two lakh rupees. 10. So far as this case is concerned, the incident of seizure had taken place on 3-5-1997 and the appellant was convicted and sentenced on 25-6-1999 for the offences under the provisions of the N.D.P.S. Act as they stood before the amendment. The amendment Act No. 9 of 2001 came into force on 2nd October, 2001. 10. So far as this case is concerned, the incident of seizure had taken place on 3-5-1997 and the appellant was convicted and sentenced on 25-6-1999 for the offences under the provisions of the N.D.P.S. Act as they stood before the amendment. The amendment Act No. 9 of 2001 came into force on 2nd October, 2001. The amended provisions can be made applicable retrospectively to the extent provided by section 41 of the Amendment Act. The said section deals with the application of the amended provisions to the pending cases. Section 41 of the Amendment Act reads as follows:- "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. (2) For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force." 11. By section 41(1) the amended provisions are made applicable to all cases pending before the courts or under investigation at the commencement of the Amendment Act and the person found guilty of any offence punishable under the principal Act is liable for punishment which is lesser than the punishment for which he was otherwise liable at the date of the commission of such offence. However, the proviso expressly prohibits the application of the amended provisions to the cases pending in appeal. If we read section 41(1) together with the proviso it would mean that the amended provisions of the Act regarding lesser punishment will be applicable to cases pending investigation and trial on 2nd October, 2001 but will not be applicable to a case in which trial is disposed of before the above date, though the case may have been takes in appeal. In other words the amended provisions of the Act regarding lesser punishment will not be applicable to the pending appeals like this. Since this case was pending in appeal on the relevant date after the trial was disposed of on 25-6-1999, there is a bar for applicability of the amended provisions of the Act. 12. However, Mr. Khan had previously produced before me a certified copy of the judgment obtained by him in the case of (Ramesh v. State of M.P.)1, in Writ Petition No. 537 of 2003 delivered by the Division Bench of the Madhya Pradesh High Court on 25-4-2003 striking down the proviso to section 41 of the Act as being arbitrary and ultra vires Article 14 of the Constitution of India. In that writ petition the constitutional validity of the proviso to section 41 of the Amendment Act was challenged. Though Mr. Thakur was requested to find out whether contrary view has been taken by the Apex Court, he could not point out any. Similarly, the Division Bench of the Punjab and Haryana High Court in the case of (Ram Singh v. State of Haryana)2, reported in 2002(3) Recent Criminal Reports (Criminal) 728 has held that proviso to section 41(1) of the Act No. 9 of 2001 is violative of Articles 14 and 21 of the Constitution of India and the denial of benefit of amended Act to the proceedings pending in appeal violates Article 14 of the Constitution. There is also reported judgment of Delhi High Court in the case of (Hari Om v. State)3, 2003 Cri.L.J. 979 in which the provisions of the new Act were applied and the sentence was reduced from 10 years to 3 years in a case which was pending in appeal when the amended provisions of the Act came into force. 13. As the proviso the section 41 of the Amendment Act is struck down, the bar of awarding lesser punishment in pending appeals is removed and, therefore, the sentence in this case can be awarded as per section 21(b) of the amended Act. 14. Mr. Khan states that the appellant is Zairean National and is in custody now for about six years and four and half months. 14. Mr. Khan states that the appellant is Zairean National and is in custody now for about six years and four and half months. He comes from a poor family and according to his own statement he had indulged in this activity for the first time for the purpose of raising funds for his own treatment of HIV from which he is suffering. He has got no money even to pay the fine amount and, therefore, lenient view may be taken and his substantive sentences and sentences of fine as well as default sentences may be reduced so that he will be in a position to go back to his country for treatment of his disease. In my view, in the above circumstances the plea raised on behalf of the appellant, who is a foreigner, deserves consideration. 15. Under section 21(b) of the Act the appellant is liable to be sentenced to the maximum imprisonment upto 10 years and fine upto one lac rupees as the quantity of heroin found in his possession would be about 150 grams as per the report of the Forensic Science Laboratory, Kalina, Mumbai which is lesser than commercial quantity. He has already undergone the substantive sentence under section 30 of the N.D.P.S. Act as well as under section 135-A of the Customs Act. 16. In the result, this appeal is partly allowed. While the order of conviction recorded against the appellant on all the three counts is confirmed, the sentences imposed on the appellant are altered as follows : For the offence under section 21 of the N.D.P.S. Act the substantive sentence is reduced from R.I. for 10 years to R.I. for 6 years and fine amount is reduced from Rs. 1 lac to Rs. 25,000/- and the default sentence is reduced from R.I. for 6 months to R.I. for 3 months. For the offence under section 30 of the N.D.P.S. Act the substantive sentence of R.I. for 5 years is confirmed but the fine amount is reduced from Rs. 50,000/- to Rs. 10,000/- and the default sentence is reduced from R.I. for 3 months to R.I. for one month. The substantive sentences are directed to run concurrently. For the offence under section 30 of the N.D.P.S. Act the substantive sentence of R.I. for 5 years is confirmed but the fine amount is reduced from Rs. 50,000/- to Rs. 10,000/- and the default sentence is reduced from R.I. for 3 months to R.I. for one month. The substantive sentences are directed to run concurrently. In view of the fact that appellant has undergone the substantive sentences as well as the default sentences on all three counts, he is entitled to be released forthwith unless he is required in any other case. The Passport, which is Exh. 35, which was seized by the Prosecuting agency, shall be returned to the appellant immediately. Writ shall be sent forthwith to Yerwada Central Prison, Pune where the appellant is stated to have been lodged at present. The Bail Authorities shall send action taken report on the writ to the High Court immediately. Appeal partly allowed. -----