Judgment S.P. Pathak, J.-Appellants Leharpuri and Sohanpuri have been convicted under Section 8/18 read with Section 8/29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the Act’) and each of them have been sentenced to rigorous imprisonment for 8 years and to pay fine of Rs.80,000/-, in default thereof to further undergo 6 months rigorous imprisonment. 2. After hearing the learned Counsel for both the side and scanning the evidence on record, this Court is of the opinion that the conviction of the appellants for the aforesaid offences is well merited. 3. PW. 1 Dharam Singh Meena, Inspector, NCB, Udaipur, has deposed that on 15.05.2001 he was posted as Inspector, NCB, Udaipur and on that day a secret information Ex. P/1 was received at 7:30 AM to the effect that accused Sohanpuri was selling opium in Udaipur and nearby places and will receive opium from one person resident of village Kesharkhdi, who is one of his relatives, and the accused will be waiting for him for obtaining opium between 10 AM to 12:30 PM near Sevashram Choraha, Udaipur. The information Ex. P/1 was sent through Senior Inspector R.N. Srivastava to the Deputy Commissioner, Narcotics, Kota and to the Headquarters at Gwalior. The information was also communicated to the Deputy Commissioner, Narcotics on telephone and also to the Acting Superintendent, NCB, PW. 6 Shri R.B. Verma, Chittorgarh. After receiving direction, a team of NCB officials headed by PW. 3 Shri R.N. Srivastava, Senior Inspector, CBN was constituted. The information sent to the higher official finds place in dispatch register Ex. P/2. 4. In the instant case, opium was found from the search of a bag of accused and since the information Ex. P/1 was transmitted to the higher officials, the provisions of Section 42(1) and (2) of the Act have fully been complied with. As a matter of fact, Section 42 of the Act was not attracted as it was not a case of search of a ‘building, conveyance or enclosed place’. PW. 1 Dharam Singh Meena has further deposed that he proceeded to the spot for staging Nakabandi alongwith two independent witnesses PW. 4 Sanjeev Kumar and PW. 5 Praveen Shreemalee. Accused Sohanlal was found standing near a Sesame tree and was waiting for someone. It was about 10:15 AM. PW. 1 Dharam Singh Meena has further deposed that he proceeded to the spot for staging Nakabandi alongwith two independent witnesses PW. 4 Sanjeev Kumar and PW. 5 Praveen Shreemalee. Accused Sohanlal was found standing near a Sesame tree and was waiting for someone. It was about 10:15 AM. He has further deposed that he alongwith the Panchas without disclosing his identity went near to the person who was standing near the tree and started talking and in talks came to know that he was accused Sohanpuri. He further deposed that he alongwith Motibr witnesses sat at a nearby place and kept a watch on his activities from a little distance. After some time, a bus from Chittorgarh side arrived and a persons got down having a dirty bag in his hand. He further deposed that he found the activities of that person suspicious. The person who got down from the bus immediately went near accused Sohanpuri and at that time photographs of that person were taken. When they came to know about the photographs being taken by the raiding party they became conscious and at that time the raiding party reached near them and sated that they had a secret information of opium possessed by them, therefore, search was to be made of them and they were also made aware of their right to be searched before a Magistrate or Gazetted Officer and they stated that they were prepared to give search to the NCB officers. Notice in that behalf was given to them. The bag was thereafter opened. In that bag, one blue bag of ragzin containing black material was found which gave smell of opium and on weighing weighed two kgs. Two samples of 25 grams each were taken and same were seized and sealed. Thereafter, the recovery memo Ex. P/6 was prepared. The samples were subsequently sent to Govt. Opium and Alkaloid Works, Neemuch, and a report of the chemical examiner Ex. P/24 was received which shows that the sample by qualitative/quantative analysis was found to be opium. The seals on the samples were also found intact. 5. PW. 3 R.N. Srivastava and PW. 6 R.B. Verma are the members of the raiding party and Inspectors of NCB, who have corroborated the statement of PW. 1 Dharam Singh Meena. P/24 was received which shows that the sample by qualitative/quantative analysis was found to be opium. The seals on the samples were also found intact. 5. PW. 3 R.N. Srivastava and PW. 6 R.B. Verma are the members of the raiding party and Inspectors of NCB, who have corroborated the statement of PW. 1 Dharam Singh Meena. The statements of accused Leharpuri and Sohanpuri were also recorded and detailed information as required by Section 57 of the Act was sent to the higher officials which is Ex. P/19. Thus, the requirement of statutory provisions were fully observed in the present case. The conviction of the appellants for the aforesaid offence in the circumstances is, thus, unassailable. 6. The impugned Judgment is dated 09.01.2004 and the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 came into force on 10.2001. The case was pending at the time when the Amendment Act, 2001 came into force. Section 41 of Amendment Act, 2001 (9 of 2001) provides: - “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 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 commission of such offence; Provided that nothing in this section shall apply to cases pending in appeal. Section 18 of the NDPS Act is as under:- 18. Section 18 of the NDPS Act is as under:- 18. Punishment for contravention in relation to opium poppy and opium.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable,- .(a) wherethe contravention involves small quantity, 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; .(b) where the contravention 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 lakh rupees which may extend to two lakh rupees:- Provided that the Court may, for reasons to be recorded in the Judgment , impose a fine exceeding two lakh rupees; (c) in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees.". The expression “Small quantity” and “commercial quantity” have been defined in Section 2 (xxxiiia) and (viiia) as under:- “small quantity”, in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.” The Central Govt. in exercise of powers conferred under Section 2 (viiia) and (xxxia) has issued the Notification dated 10.2001 and a table has been provided to ascertain whether any narcotic drug and psychotropic substance is of small quantity or commercial quantity. According to item No.92 of the table opium upto 25 grams is a ‘small quantity’ and two and half kilogram is ‘commercial quantity’. 7. The contention of learned Counsel that as the quantity of opium recovered from the possession of the accused is two kilogram, therefore, it is not covered by the expression ‘commercial quantity’ and is above the ‘small quantity’. According to the learned Counsel, the offence committed by the appellant falls under Section 18(c) and is punishable with rigorous imprisonment for a term which may extent to 10 years with fine up to rupees one lac. According to the learned Counsel, the offence committed by the appellant falls under Section 18(c) and is punishable with rigorous imprisonment for a term which may extent to 10 years with fine up to rupees one lac. The learned Counsel has submitted that it appears that severity of punishment depends upon the quantity recovered from the possession of the accused persons and as far as conviction of accused-appellants recorded by the trial is concerned, he would not challenge the same but in view of the amendment in the Act and looking to the facts and circumstances that the opium recovered is less than the commercial quantity, the accused appellants are young persons, they have already remained in jail for last about three and half years, their families have ruined and their kids have now grown up who require their supervision, therefore, the sentence awarded to the accused-appellants be reduced to the period already undergone by them. On the other hand, learned Counsel for Union of India has submitted that the prosecution has amply proved the case and the matter of sentence lies in the discretion of the Court. It has not been disputed by the learned Counsel on opposite side that the quantity alleged to have been recovered is not the ‘commercial quantity’. 8. I have considered the submissions made before me. 9. In the present case, the accused appellants were arrested in the year 2001. They have faced the trial and as per jail warrants it appears that they have already undergone sentence of about 3½ years. I am of the view that ends of justice would meet if the conviction and sentence awarded to the accused-appellants is reduced to the period already undergone by them and fine of Rs.10,000/-is imposed on each of the appellants, and in default thereof to further undergo 3 months R.I. 10. In the result, the appeal is partly allowed and while maintaining the conviction of accused-appellants under Section 8/18 read with Section 8/29 of the NDPS Act, passed by learned Special Judge, NDPS Cases, Udaipur on 09.01.2004 in Sessions Case No.246/2001, each of them is sentenced for a period of three and half years with fine of Rs.10,000/-, in default thereof to further undergo rigorous imprisonment for three months.