JUDGMENT - PARKAR S.S., J.:-These two appeals are filed by two accused challenging the order of conviction and sentence recorded against them by the Special Judge, N.D.P.S. Court, Greater Bombay in N.D.P.S. Spl. Case No. 234 of 1999. Since both the appeals are filed against the judgment and order delivered by the Special Judge on 21-10-1999 by the two co-accused in the same N.D.P.S. Spl. Case, these two appeals were heard together and are being disposed of by this common judgment. 2. The prosecution case briefly stated is as follows:-- On 16th March, 1999 Mrs. Nilam Ghatge, woman Sub-Inspector, attached to Narcotic Cell at Azad Maidan Office received information on telephone regarding two ladies who were expected to go near Shabnam Hotel, Opp. Jyoti Building, Kumbharwada, Dharavi, Mumbai, between 12.15 p.m. to 1.00 p.m. to supply gurd powder to their customer. The said information was taken down in information book and extracts thereof were delivered by her to Sr. P.I., ACP and DCP of Anti Narcotic Cell. Two panchas were called and raid was arranged. The members of the raiding party, consisting of Police Officers and panchas, went to the place as per the information and kept watch near Shabnam Hotel. They noticed two ladies at the said place. After some time one male person went to those two ladies and had some talk and thereafter one of the ladies took out one packet from her plastic carry bag and handed over the same to the male person who is accused No. 1. The lady who handed over the packet is accused No. 2. When they started leaving the spot, the members of the raiding party surrounded them and detained all the three accused. The raiding party disclosed their identity to the accused and they were told about the information and that the officers wanted to take their search. They were also told about their right to be searched in the presence of a Magistrate or a Gazetted Officer, which was declined by them. In the search of accused No. 1 one polythene packet was found in his right side pant pocket. When the small quantity of the powder out of the said packet was tested on the kit it answered positively for heroin. The weight of the powder was 50 gms. In the search of accused No. 1 one polythene packet was found in his right side pant pocket. When the small quantity of the powder out of the said packet was tested on the kit it answered positively for heroin. The weight of the powder was 50 gms. two samples of 5 gms each were drawn and packed in two separate polythene bags and marked A-1 and A-2. The remaining powder was packed separately and marked as Ex. A. Similarly the search of the plastic carry bag which was in the hand of accused No. 2 was taken. In the said bag brown powder was found which tested positive for heroin. The weight of the brown powder was 200 gms. Out of the said powder two samples of 5 gms. each were drawn and marked B-1 and B-2. The remaining bulk was kept in separate packet and marked as "B". For the personal searches of the two women accused they were taken to the house of accused No. 3. Accused No. 2 and 3 are daughter and mother. The search of the women accused was taken by P.W. 1 in the presence of lady panch. Nothing incriminating was found in their personal search. The search of the house of accused No. 3 was also taken but nothing incriminating was found. The panchanama of the seizure was drawn at Shabnam Hotel. Copies of the panchanama were given to the accused and the accused No. 1 acknowledged the receipt. PI Rane who was leading the raiding party seized all the articles and all the three accused were arrested. The complaint was lodged by P.W. 1 W.S.I. Mrs. Ghatge. Further steps as per the provisions of N.D.P.S. Act were taken. Samples, packets were sent to the Forensic Science Laboratory, Mumbai. As per the report of the Forensic Science Laboratory, Mumbai the samples contained methaqualone and heroin. The sample drawn from the powder seized from accused No. 1 contained about 9% of heroin and methaqualone and the sample drawn from the powder seized from accused No. 2 contained about 6.3% of heroin and methaqualone. After the investigation was over charge-sheet came to be filed before the Special Court. 3. The sample drawn from the powder seized from accused No. 1 contained about 9% of heroin and methaqualone and the sample drawn from the powder seized from accused No. 2 contained about 6.3% of heroin and methaqualone. After the investigation was over charge-sheet came to be filed before the Special Court. 3. The learned Special Judge framed charges for offence under section 29 read with sections 21 and 8(c) of the N.D.P.S. Act and for offence under section 21 read with section 8(c) of the N.D.P.S. Act to which accused pleaded not guilty. On behalf of the prosecution six witnesses were examined. P.W. 1 is Mrs. Nilam Ghatge, Woman Sub-Inspector who had received the information and was member of the raiding party and had filed FIR. P.W. 2 is Sunil Vagankar who carried the samples to the office of the Forensic Science Laboratory, Mumbai. P.W. 3 is P.I. Eknath Rane attached to Narcotic Cell, Azad Maidan Office, who arranged for the raid and was member of the raiding party. P.W. 4 is Mrs. Kamal Bhimse, who was panch to the seizure of the contraband. P.W. 5 is Suhas Bakre, Assistant Chemical Analyser. Lastly, P.W. 6 is PSI Bhaskarrao Jadhav, who investigated the case and submitted the charge-sheet. 4. After considering the entire evidence on record the learned Special Judge by his impugned judgment and order dated 21-10-1999 acquitted original accused No. 3 and convicted these appellants i.e. original accused Nos. 1 and 2 for offence of conspiracy under section 29 read with sections 21 and 8(c) of the N.D.P.S. Act and sentenced both of them to RI for 10 years and to pay a fine of Rs. 1 lakh in default RI for 3 months. They were also convicted for offence of possession of contraband under section 21 read with section 8(c) of the N.D.P.S. Act and sentenced to RI for 10 years and to pay a fine of Rs. 1 lakh in default RI for 3 months. The said order of conviction and sentences is under challenge in these two appeals. 5. Mr. Khan appearing for both the appellants did not challenge the order of conviction recorded against the appellants by the trial Court. 1 lakh in default RI for 3 months. The said order of conviction and sentences is under challenge in these two appeals. 5. Mr. Khan appearing for both the appellants did not challenge the order of conviction recorded against the appellants by the trial Court. He, however, submitted that in view of the fact that the appellants were found in possession of quantity of herein which is less than commercial quantity, their sentence may be reduced to already undergone as per section 21(b) of the Amended Act which is held to be applicable to the cases pending in appeal. 6. According to Mr. Khan though 50 gms. of brown powder was found in possession of accused No. 1 and 200 gms. of brown powder was found in possession of accused No. 2 the percentage of heroin and methaqualone as per the C.A. report in the said brown powder was hardly 9% in respect of accused No. 1 and less than 7% in case of powder seized from accused No. 2. He stated that both the appellants are in custody from the date of their arrest i.e. 16th March, 1999 and thus they have undergone imprisonment for a period of more than four and half years. He further submitted that both the appellants were involved for the first time in this offence and accused No. 2 is a lady and, therefore, sentence of both the appellants may be reduced to already undergone. 7. So far as the merits of the case are concerned, there is no challenge. Otherwise also I am satisfied that the mandatory provisions under section 50 etc., of the Act are complied with and from the oral as well as documentary evidence the prosecution has established that both these appellants were found in possession of herein. 8. So far as the applicability of amended section 21(b) of the Act is concerned, I have held in the case of (Diakite Ibrahime Adame v. J.L. Pandey another)1. 8. So far as the applicability of amended section 21(b) of the Act is concerned, I have held in the case of (Diakite Ibrahime Adame v. J.L. Pandey another)1. In Criminal Appeal No. 586 of 1999 decided on September 16, 2003 that proviso to section 41 of the Amendment Act No. 9 of 2001 has been struck down by the Madhya Pradesh High Court as being arbitrary and ultra vires Article 14 of the Constitution of India decided by the Division Bench of that High Court on 25-4-2003 in the case of (Ramesh v. State of M.P.)2, in Writ Petition No. 537 of 2003. The amended provisions regarding punishment are made applicable even to the cases pending in appeal on the date of commencement of the Amending Act i.e. on 2nd October, 2001. Similar view has been taken by the Delhi as well as Punjab and Haryana High Courts. As per the amended provision if the contravention involves quantity lesser than commercial quantity, which is 250 gms. but greater than small quantity, which is 5 gms., the accused is liable to be punished with rigorous imprisonment for a term which may extend to 10 years and with find which may extend to one lakh rupees without any minimum sentence prescribed. Thus by virtue of the amended provisions the cases of these appellants fall under Clause (b) of section 21 of the Amended Act for the purpose of punishment. Though the discretion is given to the Court, I do not think that it is desirable to reduce the sentence to already undergone which is four and half years but the sentence in respect of the appellants can be reduced to five years imprisonment. 9. In the result, both the appeals are partly allowed. While the order of conviction recorded by the trial Court against both the appellant is confirmed the sentences of imprisonment are reduced from RI for 10 years to RI for 5 years and fine amount is reduced from Rs. 1 lakh to Rs. 25,000/- on each count and default sentence is reduced from RI for 3 months to RI for 2 months. Appeals partly allowed. -----