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2006 DIGILAW 1901 (DEL)

SHANKAR LAL v. STATE OF N. C. T. DELHI

2006-10-17

J.M.MALIK

body2006
J. M. MALIK, J. ( 1 ) THE appellant was sentenced to undergo rigorous Imprisonment for a period of ten years and to pay a fine in the sum of rs. 1,00,000/- in default Rigorous imprisonment for one month for possessing herion weighing 50 gms under Section 21 ndps Act. Aggrieved by that order, the appellant has filed the instant appeal before this Court. ( 2 ) THE learned counsel for the appellant made only one short submission, he explained that the appellant is languishing in the Jail for more than nine years, which fact is not disputed. The learned counsel for the appellant invited the attention of the Court towards the Narcotic Drugs and Psychotropic substances Act Amendment Act, 2001 which according to the learned counsel for the appellant has brought significant changes in the NDPS Act, 1985. He referred to table sub-clause (viia) and (xxiiia) of section 2 of the Act, which reveals . No. Name of Narcotic Drug and Psychotropic Substance (International non -proprietory Name (INN) 1 2 3 4 5 6 56. Herion Diacety Imorphine 5 250 gm. Chemical Name Small Quantity Commercial Other Non propriety name (in gm. /kg.) (in gm.) ( 3 ) IT, therefore, means that the accused was in possession of lesser quantity than commercial quantity but greater than small quantity. Section 21 of NDPS Act is reproduced as follows: "21. Herion Diacety Imorphine 5 250 gm. Chemical Name Small Quantity Commercial Other Non propriety name (in gm. /kg.) (in gm.) ( 3 ) IT, therefore, means that the accused was in possession of lesser quantity than commercial quantity but greater than small quantity. Section 21 of NDPS Act is reproduced as follows: "21. Punishment for contravention in relation to manufactured drgus and preparations - whoever, in contravention of any provision of the Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter- state, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable - (a) where the 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 quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) 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 but 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. " ( 4 ) FROM a bare reading of the abovesaid provision of law. e. 21 (b), it is crystal clear that when the quantity is more than 5 grams and less than 250 grams, this is the discretion of the Court to award any sentence to the accused upto ten years. The law does not prescribes any minimum sentence. The learned counsel for the appellant did not pick up a conflict with the merits of this case and prayed that the appellant be released on the imprisonment already undergone and court may impose nominal fine. ( 5 ) HOWEVER, it must be borne in mind that the said amendment came after the accused was arrested. In a recent authority reported in State through CBI Vs. Gian Singh, 1999 SCC (Cri) 1512, it was held, "32. ( 5 ) HOWEVER, it must be borne in mind that the said amendment came after the accused was arrested. In a recent authority reported in State through CBI Vs. Gian Singh, 1999 SCC (Cri) 1512, it was held, "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 prescribes, 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. " In the above cited case, the accused was sentenced to death under TADA Act. By virtue of amendment, the sentence was converted for life in place of death. ( 6 ) NOMINAL roll of the accused dated 01. 08. 2005 goes to show that till then the accused had already undergone imprisonment for eight years, one month and thirteen days. Learned counsel for the appellant states that the accused was not released on parole, thereafter. It is thus clear that the accused is in Jail for more than nine years. Since, accused has already undergone actual incarceration for more than nine years, therefore, I am of the considered view that the sentence undergone by him is sufficient to meet the ends of justice. He is accordingly sentenced to the imprisonment already undergone and to pay a fine in the sum of rs. 1,000/- failing which he shall further undergo Simple Imprisonment for one week. Consequently, the sentence already passed by learned ASJ stands modified. Copies of this order be sent to the Jail superintendent, Tihar Jail, Delhi with the direction to release the accused/appellant after the expiry of one week. e. on 24. 10. 2006, if fine is deposited, then forthwith and if he is not required in any other case, as well as to the accused through Jail Superintendent. Copies of this order be sent to the Jail superintendent, Tihar Jail, Delhi with the direction to release the accused/appellant after the expiry of one week. e. on 24. 10. 2006, if fine is deposited, then forthwith and if he is not required in any other case, as well as to the accused through Jail Superintendent. Trial court record along with a copy of this order be sent to the Trial Court forthwith.