Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 110 (HP)

SATPAL v. STATE OF H. P.

2003-05-19

K.C.SOOD, M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This appeal is directed against the judgment dated 1.10.2001, passed by the learned Sessions Judge, Kullu, whereby the appellant accused (hereafter referred to as the accused) has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereafter referred to as the Act) and has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000 and in default of payment of fine, to suffer further imprisonment for six months. 2. Briefly stated, the case of the prosecution against the accused is that on 1.10.2001 at about 3.10 p.m., ASI Narinder Singh (PW-8) of Police Station, Banjar, alongwith constables Tek Singh (PW-7), Sunil Kumar (PW-9) and LHC Pune Ram was on patrol duty at Bus Stand, Banjar. At that time, he saw the accused who had covered himself with a blanket coming from the opposite direction. On seeing the police party, accused started walking briskly thereby giving a cause for suspicion and his apprehension by the police in the presence of Mohar Singh (PW-5) and Uttam Singh (PW-6), who were also present at the bus stand. After inquiry about the particulars of the accused, he was given the option of search before a Magistrate or a gazetted officer orally as well as in writing vide Ex. PW-5/A. Accused opted to be searched by the police present on the spot. PW-8 then gave his personal search to the accused vide memo Ex. PW-5/B and then conducted the search of the accused. On such search, under the shirt which the accused was wearing, close to his waist, a polythene packet containing Charas was found concealed. The Charas so recovered, on weighment, was found 350 grams. Three samples of 25 grams each were separated from the recovered charas and so separated samples and remaining Charas were made into separate parcels which were sealed with seal B. Specimen seal impression Ex. P-2 was separately taken and retained. NCB forms in triplicate were filled in and the seal impression was affixed on such forms also. Seal after use was handed over to PW-5 and a memo Ex. PW-5/C about these proceedings was prepared and was attested by PW-5 and PW-6. The investigating officer prepared ruqua Ex. PW-8/A and sent the same to Police Station, Banjar, through PW-7 and on the basis of such ruqua, SHO Sanjay Kumar (PW-4) recorded FIR Ex. Seal after use was handed over to PW-5 and a memo Ex. PW-5/C about these proceedings was prepared and was attested by PW-5 and PW-6. The investigating officer prepared ruqua Ex. PW-8/A and sent the same to Police Station, Banjar, through PW-7 and on the basis of such ruqua, SHO Sanjay Kumar (PW-4) recorded FIR Ex. PW-4/A at the police station and sent the case file through PW-7 to the investigating officer (PW-8). The accused was informed of the offence committed by him and the punishment provided therefor vide memo Ex. PW-5/D and then he was arrested. The case property was produced by the investigating officer (PW-8) before the SHO (PW-4), who resealed the sample packets and the packet containing the remaining Charas with seal T and also retained specimen seal impression Ex. PW-4/C. After affixing the seal used for resealing the case property on the NCB forms, the case property and the NCB forms were deposited with MHC Narain Singh (PW-3). On 11.2.2001, one sealed sample was sent by PW-3 to C.T.L., Kandaghat through constable Sunil Kumar (PW-9) vide RC Ex. PW-3/B. The special report Ex. PW-l/A was sent to the office of Superintendent of Police, Kullu, through constable Pune Ram (PW-2). On analysis, the sample sent to C.T.L., Kandaghat was found that of Charas and the report of Chemical Examiner in this regard is Ex. PW-4/D. On submission of a charge sheet against the accused, the learned Sessions Judge, Kullu, framed a charge against the accused under Section 20 of the Act, to which the accused pleaded not guilty. 3. To prove the charge against the accused, prosecution examined 9 witnesses. The accused was examined under Section 313 Cr.P.C. wherein he denied the prosecution case and claimed to be innocent. However, he did not lead any defence evidence. On the basis of the evidence on record, the learned Session Judge convicted and sentenced the accused as aforesaid. Hence this appeal. 4. We have heard the learned Counsel for the accused and the learned Additional Advocate General for the State and have also gone through the records. 5. At the time of arguments, the learned Counsel for the accused fairly and in conformity with the reliability of the evidence on record, conceded that he did not dispute the legality and correctness of the conviction of accused. 5. At the time of arguments, the learned Counsel for the accused fairly and in conformity with the reliability of the evidence on record, conceded that he did not dispute the legality and correctness of the conviction of accused. The only submission made for the accused was that benefit of amended provisions of Section 20 of the Act, which now provide lesser punishment for possession of non-commercial quantity of Charas may be extended to the accused and that the punishment awarded to the accused is too severe and disproportionate and deserves to be reduced as the law itself has downgraded the sentence for commission of such offences. 6. There is no dispute that at the time of passing of the impugned judgment, the minimum punishment provided for an offence punishable under Section 20 of the Act was imprisonment for 10 years and fine of Rs. 1,00,000. However, the provisions of Section 20 of the Act were amended vide Section 7 of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, (Act No. 9 of 2001) (hereafter referred to as the Amending Act), whereby the legislature downgraded the harshness of the sentence and provided different sentences for possession of Charas as per the quantity recovered from the possession of the accused. Now under the amended provisions of Section 20, in a case which involves the quantity of the Charas lesser than commercial quantity, but greater than small quantity, the minimum sentence of 10 years rigorous imprisonment and fine of Rs. 1,00,000 has been downgraded to the sentence of rigorous imprisonment which may extend to 10 years with fine which may extend to Rs. 1,00,000 and the rider of passing the minimum sentence as was earlier provided, stands removed. 7. It may, however, be pointed out that Section 41(1) of the Amending Act specifically provides that the amended provisions shall not apply to cases pending in appeal. Therefore, the question arises as to whether in view of the aforesaid rider making the amended provisions non-applicable to the pending appeals, the accused can be given the benefit of the amended provisions? 8. Therefore, the question arises as to whether in view of the aforesaid rider making the amended provisions non-applicable to the pending appeals, the accused can be given the benefit of the amended provisions? 8. In Ram Singh v. State of Haryana, 2002 (3) Recent Criminal Reports 728, the question arose as to whether the benefit of the amended provisions of Section 15 of the Act, whereby the minimum sentence as provided before amendment has been downgraded could be applied in a case which had been decided by the trial Court before the coming into force of the amended provisions but was pending in appeal after enforcement thereof. A Division Bench of the Punjab and Haryana High Court, after having gone into the question of validity of the proviso to Section 41(1) of the Amending Act held that the exclusion of benefit of liberalised provisions of the Amending Act to cases pending in appeal is without intelligible differentia and without having any reasonable nexus with the object to be achieved. The proviso to Section 41(1) of the Amending Act was, therefore, struck down and it was held that the provisions contained in the Amending Act shall be applicable to all cases pending before the courts or under investigation at the time of commencement of the amended provisions irrespective of the fact whether such cases are pending in appeal or before the trial Court. 9. A Division Bench of this Court, relying on the aforesaid decision of the Punjab and Haryana High Court in Tom Marshal v. State of H.P. (Criminal Appeal No. 69 of 2001, decided on 21.11.2002) held as under : "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. 9of 2001 would also be available to the cases pending in appeal." 10. In Rajinder Singh v. State of H.P. (Cr. A. No. 284 of 2001, decided on 14.5.2003) a Division Bench of this Court took the same view. 11. In Hari Om v. State (2003 Cri. In Rajinder Singh v. State of H.P. (Cr. A. No. 284 of 2001, decided on 14.5.2003) a Division Bench of this Court took the same view. 11. In Hari Om v. State (2003 Cri. L.J. 979), while dealing with a similar question, Delhi High Court held as under : "There is unvarying unanimous view that appeal is continuation of the trial as until and unless the judgment of conviction and order of sentence receives finality and comes into operation, the statute of the day is applicable unless specifically provided to the contrary. Argument of the learned APP would have some force. Had the convict whose conviction and sentence had attained finality prior to the amended legislation approached the Court to reopen his case for the purpose of sentence to avail the benefit of amended legislation. Otherwise all those who are still awaiting judicial verdict are entitled to the benefit of reduced sentence." 12. The aforesaid decisions are supportable on the basis of the principle laid down by the Apex Court in State through CBl, Delhi v. Gian Singh, 1999 Cri. L.J. 4315, wherein it was held as under: "32. What is the jurisprudential philosophy involved in the second limb of Clause (1) of Article 20 of the Constitution? "No person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence." It is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribed, and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation would downgrade the harshness of the sentence for the same offence, it would be a salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence." 13. In view of the above position in law, the accused is entitled to the benefit of the amended provisions of Section 20 of the Act. 14. As already stated hereinabove, the accused was found in possession of 350 grams of Charas which is much less than the commercial quantity. In view of the above position in law, the accused is entitled to the benefit of the amended provisions of Section 20 of the Act. 14. As already stated hereinabove, the accused was found in possession of 350 grams of Charas which is much less than the commercial quantity. Therefore, in view of the quantity of Charas recovered and the fact that the accused is not a previous convict and in the absence of evidence that the Charas found in possession of the accused was meant for sale, the sentence awarded to the accused is on the higher side and deserves to be reduced. 15. As a result, this appeal is partly allowed and while maintaining the conviction of the accused under Section 20 of the Act, the sentence imposed upon him is educed to rigorous imprisonment for two and a half years and fine of Rs. 20,000. In default of payment of fine, the accused shall undergo imprisonment for a period of one year. Appeal partly alloyed.