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2007 DIGILAW 117 (PAT)

Md. Safi v. State Of Bihar

2007-01-16

GHANSHYAM PRASAD

body2007
Judgment Ghanshyam Prasad, J. 1. This appeal has been preferred by the appellants against the judgment and its order dated 25.7.2003 passed by Sri Jay Prakash Singh, 6th Additional Sessions Judge, Bettiah in Trial No. 10 of 2001 under Sec.20(B) of the Narcotic Drugs and Pshychotropic Substance Act, 1985 (hereinafter referred to as the "Act") thereby and thereunder the court below has convicted the appellants under Sec.20(B) of the Act and sentenced them to undergo rigorous imprisonment for ten years and to pay fine of rupees one lakh and in default of fine he has been directed to undergo rigorous imprisonment for further three years. 2. It appears that on secret information on 5.4.2001 a team of custom officials intercepted and stopped a truck bearing registration no. CHW-7979 which was coming from the side of Chanapatia. The appellants were Driver and Khalashi of the truck. On search altogether twenty nine packets of Ganja weighing about 303 Kg were recovered from the false chamber of the truck. The prosecution after observing legal formalities filed prosecution report against five persons including these appellants. However, ultimately only these appellants faced trial and the case of other three persons were separated. Charge under Sections 2(b)(ii) and 23 of the Act was framed against the appellants. In course of trial eight witnesses were examined by the prosecution and ultimately both the appellants have been convicted and sentenced to in the manner stated above only under Sec.20(b) of the Act. 3. In course of hearing learned counsel for the appellants confined his submission only on the point of sentence. He did not challenge the findings of guilt to the appellants under Sec.20(b) of the Act. Submission of learned counsel for the appellants is that the court below has committed grave error in awarding sentence of rigorous imprisonment for ten years and fine of rupees one lakh. The alleged Ganja was recovered from the truck on 5.4.2001. On that very date the Principal N.D.P.S. Act, 1985 was in vogue. The maximum punishment under Sec.20 of N.D.RS. Act for such offence is only five years with maximum fine of rupees fifty thousand. But the learned lower court has awarded sentence on the basis of the amended Act of N.D.RS. which came into force much after the alleged date of the occurrence. The maximum punishment under Sec.20 of N.D.RS. Act for such offence is only five years with maximum fine of rupees fifty thousand. But the learned lower court has awarded sentence on the basis of the amended Act of N.D.RS. which came into force much after the alleged date of the occurrence. The appellants have already remained in jail custody for much more than maximum sentence provided under Principal N.D.P.S. Act of 1985 being in custody since 5.4.2001. 4. This Court finds truth in the submission of learned counsel for the appellants. Under Sec.20(B) of the Principal Act of 1985 the maximum punishment is five years with maximum fine of rupees fifty thousand which runs as follows; "20. Punishment for contravention in relation to cannabis plant and cannabis.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, (a) Cultivates any cannabis plant: or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, (i) where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand:" 5. Sec.20 of the Principal Act, 1985 was amended by Act no. 9 of 2001 which came into force on 2.10.2001. Therefore, sentence for such offence was enhanced to maximum upto twenty years and a fine which shall not be less than one lakh rupees which may extend to two lakh rupees. The applicability of the amended Act, 2001 to the pending cases is provided under Sec. 41 of the Amended Act, 2001 which runs as follows: "41. Application of this Act to pending cases.- (1) Notwithstanding anything contained in sub-section (2) of Sec.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 amended by this Act and accordingly, any person found guilty of any offence punishable under 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 the commission of such offence: Provided that nothing in this Section shall apply to cases pending in appeal. (2) For the removal of doubts, it is hereby declared that no act or domission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force." 6. Thus it is quite clear that in cases instituted earlier to the Act came into being shall be covered by the Principal Act in which lesser punishment is provided for such offence. Thus, it is quite clear that the court below has committed error in awarding sentence to the appellant in excess of the sentence provided in Principal Act on the basis of amended Act which was not in force on the date of occurrence. It appears that the appellant has already remained in jail custody for about six years which is more than the maximum punishment provided under the Principal Act. Therefore, it is in fitness of the case that the sentence awarded to the appellant may be modified to the extent already undergone in jail custody which shall also include period of sentence in default of payment of fine. 7. Accordingly, this appeal is allowed in part as mentioned above and the sentence awarded to the appellants is set aside and is modified to the extent of period already undergone in jail custody. The appellants are directed to be released forthwith, if not wanted in any other case.