JUDGMENT - PARKAR S.S., J.:-This appeal is filed challenging the judgment and order dated 19th July, 1999 delivered by the Special Judge under the N.D.P.S. Act, Greater Mumbai convicting the appellants for offence under section 8(c) read with section 21 of the N.D.P.S. Act and sentencing each of them to R.I. for ten years and to pay a fine of Rs. 1 lakh in default to undergo further R.I. for three months in N.D.P.S. Special Case No. 63 of 1999. 2. Briefly narrated the prosecution case is as follows: The information was received by P.S.I. Gokhale P.W. 5 on 21-11-1998 at about 10.30 hrs. that some persons who were residents of Bhawani Mandi were regularly sending their associates to Mumbai for delivering drugs and their four associates were staying at Asha Guest House situated at Maulana Shaukatali Road, Grant Road, Mumbai and they were expected to leave the hotel between 2.30 and 3.00 p.m. for delivering brown sugar to their customers. The said information was reduced to writing in the information book and the extracts were sent to ACP and Sr. P.I. Tayde and on the instructions of ACP trap was arranged. The pancha were called and the raiding party went to the place as per the information. When the members of the raiding party had kept watch they noticed two persons alighting from Asha Guest House followed by other two persons. They were surrounded by the Police Officers and enquired about their names and addresses and were also told about the information. They were told about their right to be searched in the presence of a Gazetted Officer or a Magistrate if they so demanded which they declined. All the four persons were carrying carry bags in their hands. On search they were found carrying brown powder which when tested answered positively for heroin. The weight of the brown sugar found in the possession of accused No. 1 was 400 gms., the weight of the brown sugar recovered from the possession of accused No. 2 was 250 gms., the weight of the brown sugar recovered from the possession of accused No. 1 was 200 gms. and from accused No. 4 was 300 gms. Two samples of five grams each were drawn from the powder recovered from each of the four persons. They were separately packed and sealed. and from accused No. 4 was 300 gms. Two samples of five grams each were drawn from the powder recovered from each of the four persons. They were separately packed and sealed. The markings put on the samples were "A" in respect of accused No. 1, "B" in respect of accused No. 2, "C" in respect of accused No. 3 and "D" in respect of accused No. 4. The sample packets as well as the remaining bulk separately packed in respect of each accused were seized under the seizure panchnama. The accused came to be arrested and other formalities were complied with. The sample packets were sent for analysis to the Forensic Science Laboratory, Mumbai. As per the report of the CA dated 23-12-1998 heroin (Diacetyl morphine) was detected in all the samples along with other opium alkaloids. After completion of the investigation the charge sheet was filed in the Court of the Special Judge. 3. The Special Judge framed charges against all the appellants firstly for offence under section 8(c) read with section 29 of the N.D.P.S. Act and secondly for offence under section 8(c) read with section 21 of the N.D.P.S. Act. All the appellants pleaded not guilty. On behalf of the prosecution five witnesses were examined. P.W. 1 is Meenal Naik who was woman Sub-Inspector attached to Anti Narcotic Cell, C.B., C.I.D., Mumbai. She is the complainant and was member of the raiding party P.W. 2 is Dilip Desai, the constable who carried the samples to the office of CA on 23-11-1998. P.W. 3 is Vijay Khade who acted as panch for the seizure panchnama (Exh. 17). P.W. 4 is Shantilal Rana who was Manager of the guest house where the accused were staying. P.W. 5 is PSI Suhas Gokhale who investigated the case and filed charge-sheet. The defence of the accused was of denial. 4. After considering the entire evidence on record the Special Judge by his impugned judgment and order dated 19th July, 1999 convicted all the appellants for offence under section 8(c) read with section 21 of the N.D.P.S. Act and sentenced each of them to undergo R.I. for ten years and to pay a fine of Rs. 1 lakh in default R.I. for three months. All the appellants were acquitted of the charge of conspiracy framed against them. 1 lakh in default R.I. for three months. All the appellants were acquitted of the charge of conspiracy framed against them. The said judgment and order of conviction and sentence recorded against the appellants is under challenge in this appeal. 5. Mr. Khan appearing for the appellants did not challenge the order of conviction. He however urged that in view of the fact that the appellants were found in possession of contraband which is lesser than the commercial quantity the substantive sentence may be reduced to already undergone by applying section 21(b) of the Act as amended by Amendment Act 9 of 2001. 6. All the appellants were arrested on 21-11-1998 and they are in custody for a period of about four years and ten and half months. Mr. Khan submitted that as per the CA report (Exh. 45) the brown powder recovered from the possession of the appellants was not 100% heroin. As per the said report diacetyl morphine i.e. heroin was detected along with other opium alkaloid which means that the brown powder recovered from the possession of the appellants was not 100% diacetyl morphine but it also contained other opium alkaloids. The 200 gms. recovered from the possession of the appellant-original accused No. 3 is less than commercial quantity which is 250 gms. as per the amended Act. 250 gms. recovered from the possession of the appellant-accused No. 2 was having heroin contents which will be less than 250 gms. as that was mixed with other opium alkaloids. As regards the quantity of 400 gms. and 300 gms. recovered from accused No. 1 and accused No. 4 is concerned, it was submitted that since the CA report does not make any mention of the percentage yet considering the quantum of powder found mixed with other opium alkaloids, it cannot be said that the said accused were carrying heroin which was more than the commercial quantity of 250 gms. The submission of the defence Advocate is that since the CA has not chosen to give percentage of heroin, benefit may be given to the accused as normally the percentage of heroin in the brown powder seized under the provisions of this Act varies between 5% to 50%. Thus out of 300 gms. of brown sugar recovered from accused No. 4 even if 80% was diacetyl morphine it would be equal to 240 gms. Thus out of 300 gms. of brown sugar recovered from accused No. 4 even if 80% was diacetyl morphine it would be equal to 240 gms. which is less than the commercial quantity. Similarly even if it is assumed that out of 400 gms. of brown powder recovered from the possession of accused No. 1 the percentage of heroin is 6% the quantity of heroin possessed by him would be 240 gms. He, therefore, submitted that in the absence of percentage of heroin detected in the brown powder in the CA report the assumption will have to be made in favour of the accused that the quantity of heroin possessed by them must be less than 250 gms. which is the commercial quantity and, therefore, the punishment prescribed under section 21(b) of the Act as amended will be applicable. The learned Defence Advocate argued that at least the sentence of accused Nos. 2 and 3 may be reduced to already undergone as the quantity of brown powder recovered from accused No. 3 being 200 gms. is clearly less than the commercial quantity even without considering the percentage of heroin and the other opium alkaloids contained in the same. The quantity of heroin recovered from accused No. 2 will also be less than the commercial quantity without considering the percentage of heroin therein but after considering that other opium alkaloids found in the brown powder recovered from him was 1% in which case the remaining brown powder even if consisted of heroin i.e. 99% of the total powder recovered from him would bring down the quantity of heroin to about 248 gms. 7. In my opinion the submission is not ill founded. Because of the passage of time it is not possible now to send samples for analysis to the laboratory to find out the percentage of heroin. Nonetheless, it is not desirable to reduce the substantive sentences to already undergone. Though the discretion is given to the Court but the same cannot be exercised in a way which could not act as deterrent to those who indulge in drug trafficking. 8. The trial Court had imposed the sentence which was minimum under section 21 of the Act as it stood before the amendment which came into force from 2nd October 2001. 8. The trial Court had imposed the sentence which was minimum under section 21 of the Act as it stood before the amendment which came into force from 2nd October 2001. By virtue of section 41 of the Amendment Act 9 of 2001 the amended provisions as regards the punishment have been made applicable to the cases pending investigation and trial but their application was barred by virtue of proviso to section 41 of the said Act to pending appeals. However the proviso to section 41 which barred the application of the amended provisions about the punishment to the cases pending in appeal has been struck down by the Madhya Pradesh High Court as being ultra vires Article 14 of the Constitution by the Division Bench of that Court in the case of (Ramesh v. State of Madhya Pradesh)1, in Writ Petition No. 537 of 2003, decided on 25-4-2003. Even the high courts of Delhi and Punjab Haryana have applied the amended provisions to the cases pending in appeal on the date the amendment came into force. 9. Under section 21(b) of the Amended Act for contravention of the Act in respect of the quantity less than the commercial quantity the punishment prescribed is sentence of imprisonment which may extend to ten years and fine which may extend to one lakh rupees without prescribing any minimum sentence. Thus applying the amended provisions the sentence of the appellants could be reduced to less than ten years imprisonment which was awarded to them as per the minimum prescribed under the old provisions. Considering the quantity of the contraband recovered from the four appellants the sentences of the appellants could be reduced depending on the quantity of contraband recovered from each of them. It is contended that this is the first offence committed by the appellants and there is no previous conviction or other antecedents of these appellants brought on record. However, in view of the fact that they were outsiders and had come to Bombay specially for the purpose of selling the contraband, they cannot be dealt with too lightly and released on the sentences already undergone by them. 10. In the result, the order of conviction recorded against all the appellants by the Special Judge under N.D.P.S. Act, Greater Mumbai in N.D.P.S. Special Case No. 63 of 1999 is confirmed. 10. In the result, the order of conviction recorded against all the appellants by the Special Judge under N.D.P.S. Act, Greater Mumbai in N.D.P.S. Special Case No. 63 of 1999 is confirmed. However, the sentences imposed on them are reduced as follows: The sentence of appellant No. 1 original accused No. 1 Karansingh Kumansingh Rajput @ Bhaiyalal and appellant No. 4-original accused No. 4 Kanayyalal Biharilal Banjara is reduced from R.I. for ten years to R.I. for six years and fine amount is reduced from Rs. 1 lakh to Rs. 25,000/- in default to undergo further R.I. for two months. The sentence of appellant No. 2-original accused No. 2-Devising Babusing Yadav @ Bhuraya and appellant No. 3 original accused No. 3-Mohd. Iqbal Abdul Rashid Shaikh @ Bhaijan is reduced from R.I. for ten years to R.I. for five years and the fine is reduced from Rs. 1 lakh to Rs. 25,000/- in default to undergo further R.I. for two months. The appeal is thus party allowed. Petition partly allowed. -----