Judgment 1. Both the appeals arise out of the same judgment and, as such, they were heard together and are being disposed of by this common judgment. 2. Sameer Das and Bipul Sharma (Appellants in Cr. Appeal No. 342 of 2006) and Amarjeet Singh and Jagir Singh (Appellants in Cr. Appeal No. 409 of 2006), being aggrieved by the judgment dated 27.02.2006 and order dated 28.02.2006 passed by the Special Judge, Purnea in Special Case No. 1 of 2001 holding them guilty of offences u/s. 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act and inflicting punishment of rigorous imprisonment for 12 years and fine of Rs. 1 lac. each, in default to further undergo simple imprisonment for six months, have preferred these appeals. 3. According to the allegation, on receipt of a telephonic message by the Assistant Commissioner of Custom (Preventive), Forbesganj that contraband ganja is being transported along with jute in a truck to Kolkata via Kishanganj, a preventive team under the leadership of the Superintendent, Custom (Technical), Forbesganj was constituted to intercept the truck. Aforesaid information was also forwarded to the preventive team of Forbesganj. Both the teams assembled at Ferrygola, Kishanganj. At about 6.50 p.m. one Tata truck bearing registration No. WB-25A-4150 loaded with Jute was stopped and few gunny bags having higher weight found concealed in the middle of the truck, covered by Jute bundles. Occupants of the truck including driver and Khalasi on inquiry gave their names as the appellants and the driver informed that the gunny bags contained ganja. Due to darkness as also non-availability of the independent witnesses and for security reasons, truck loaded with Jutes and bags containing ganja along with its occupants were brought to the office of the Custom, Forbesganj at 3.45 a.m. on 1.01.2001. At the Custom Office, independent witnesses were called from the nearby places and in their presence gunny bags were unloaded, which contained ganja. On weighment 380 Kgs. of contraband ganja was found. The ganja as also the truck and Jute were seized and Panchnama was prepared of the seized items. The independent witnesses as also the occupants of the truck put their signatures. Sample was also taken from the seized ganja in presence of the independent witnesses and the occupants of the truck. 4. of contraband ganja was found. The ganja as also the truck and Jute were seized and Panchnama was prepared of the seized items. The independent witnesses as also the occupants of the truck put their signatures. Sample was also taken from the seized ganja in presence of the independent witnesses and the occupants of the truck. 4. Occupants of the truck were also interrogated by Superintendent (Preventive) Custom, Forbesganj in presence of independent witnesses and they confessed their guilt and disclosed the names of Tilak Sharma and Gurumukh Singh (both absconder) to be involved in the case. According to the prosecution, sample taken was sent for chemical analysis and report received disclosed that it contained ganja. 5. Ultimately the appellants were charged for illegally possessing 380 kilograms of ganja in a truck bearing registration No. WB-25A-4150 punishable u/s. 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Appellants pleaded not guilty and claimed to be tried. 6. Prosecution in support of its case had altogether examined 14 witnesses, out of whom, P.W. 3 Birendra Kumar had lodged the complaint. P.W. 1 Upendra Kumar Marik and P.W. 2 Anandi Sah are witnesses to the seizure. P.W. 8 Bidul Kumar, Superintendent of Central Excise headed the preventive team constituted at Forbesganj; whereas P.W. 4 Rabindra Kumar, P.W. 9 Ashok Kumar Das, P.W. 10 Navin Kumar Bhaskar, P.W. 12 Suman Khan and P.W. 13 Vijay Kumar Gupta are members of the preventive team. P. W. 5 Bharat Bhushan Pandey was the driver of the vehicle of the preventive team of Forbesganj. P.W. 6 Ram Suresh Ram at the relevant time was Assistant Commissioner of Custom at Forbesganj who on receipt of the telephonic information about the movement of the contraband ganja constituted the preventive team. P.W. 11 Suresh Chaudhary and P.W. 14 Anand Prakash Sharma were the members of the preventive team of Kishanganj Office and had assembled at the place where the truck was intercepted. P.W. 7 Bineet Kumar Sinha was Superintendent of Custom, who had interrogated the occupants of the truck at Custom Office. 7. Besides the aforesaid oral evidence, the prosecution has also brought on record several documents, namely seizure list (Ext. 2), panchnama (Ext. 3), the report of the Chemical Examiner (Ext. 4), voluntary statement of the appellants (Exts. 5 to 5/3) and complaint petition (Ext. 7). 8. The defence of the appellants is denial simpliciter. 7. Besides the aforesaid oral evidence, the prosecution has also brought on record several documents, namely seizure list (Ext. 2), panchnama (Ext. 3), the report of the Chemical Examiner (Ext. 4), voluntary statement of the appellants (Exts. 5 to 5/3) and complaint petition (Ext. 7). 8. The defence of the appellants is denial simpliciter. They have also pleaded false implication. However, no defence witness has been examined. 9. The Court below on appraisal of the evidence, oral and documentary, came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly, convicted and sentenced the appellants as above. 10. Mr. N. K. Agarwal, Senior Advocate, appears on behalf of the appellants in Cr. Appeal No. 409 of 2006, whereas the appellants of Criminal Appeal No. 342 of 2006 is represented by Mr. R. S. Prasad. 11. They fairly state that in view of the evidence on record, they cannot legitimately question the conviction of the appellants. 12. P.W. 3 Birendra Kumar, the complainant, who had lodged the complaint, stated in his evidence that on the date of occurrence he was posted as Inspector of Custom at Forbesganj and on the said date at 2.30 p.m. he was called by the Assistant Commissioner of Custom Ram Suresh Ram (P.W. 6) who passed on information that a truck loaded with Jute bundles carrying the contraband ganja is going to Kolkata via Kishanganj. Said Sri Ram constituted a preventive team consisting of two Inspectors including the complainant and four constables headed by Superintendent (Technical), Custom Office of Kishanganj was also informed by said Sri Ram and preventive team at Kishanganj came into being. Both the preventive teams reached at Ferrygola Kishanganj, intercepted the truck bearing registration No. WB-25A-4150 at 7 p.m. with four occupants, which included the driver and the Khalasi the appellants herein. In middle of the truck gunny bags surrounded by Jute bundles were found, Smell of ganja was coming out from the gunny bags. Since it was dark and cold and no independent witnesses being available as also for security reasons, according to this witness the loaded truck along with the occupants were brought to the Forbesganj Office, where they reached at about 4 a.m. on 1.01.2001. Independent witnesses were called and in their presence 11 gunny bags containing ganja weighing 380 kilograms recovered. It was seized and seizure list prepared. Independent witnesses were called and in their presence 11 gunny bags containing ganja weighing 380 kilograms recovered. It was seized and seizure list prepared. Panchnama was also prepared, over which the witnesses and the occupants of the truck put their signatures. Samples of ganja were taken in presence of the independent witnesses and sent for chemical examination to The Government Opium and Alkaloid Works, Ghazipur. According to its report, same contained ganja. The appellants also made voluntary statements, over which they put their signatures and gave thumb impressions. Appellants were also interrogated by Bineet Kumar Sinha (P.W. 7), Superintendent, Custom and same was recorded in writing. 13. P.W. 1 Upendra Kumar Marik and, P.W. 2 Anandi Sah are witnesses to the seizure list and have stated about the recovery of 11 gunny bags containing ganja weighing 380 kilograms at the Custom Office, Forbesganj. P.W. 6 Ram Suresh Ram had stated in his evidence about the telephonic information that truck loaded with Jute as also ganja is proceeding towards Kolkata via Kishanganj. P.W. 4 Rabindra Kumar, P.W. 5 Bharat Bhushan Pandey, P.W. 10 Navin Kumar Bhaskar, P.W. 12 Suman Khan and P.W. 13 Vijay Kumar Gupta were the members of the preventive team of Forbesganj; headed by P.W. 8 Bidul Kumar. All of them have stated about the interception of the truck at Ferrygola and bringing its occupants along with truck at Forbesganj office where ganja was seized kept in gunny bags covered by the Jute bags. P.W. 9 Ashok Kumar Das, P.W. 11 Suresh Chaudhary and P.W. 14 Anand Prakash Sharma, who were the members of the preventive team of Kishanganj have also stated the same fact. The report of the chemical examiner shows that the sample contained ganja. 14. Thus there is overwhelming evidence on record that the truck was intercepted in which 380 kilograms of ganja was kept and the appellants had hands in its transportation. We are satisfied that the evidence on record, oral and documentary clearly prove that appellants had committed the crime punishable u/s. 20(b)(ii) of Narcotic Drugs & Psychotropic Substances Act, as in force on the date of occurrence. Hence we do not find any error so far as the conviction of the appellants is concerned. In fairness to the Counsels of the appellants, they have not questioned their conviction also. 15. Hence we do not find any error so far as the conviction of the appellants is concerned. In fairness to the Counsels of the appellants, they have not questioned their conviction also. 15. However, they contend that Sec. 20 of the Narcotic Drugs and Psychotropic Substances Act in force at the time of the Commission of the offence for which they have been held guilty provided for a maximum punishment of five years and fine of Rs. 50,000.00 and hence they cannot be sentenced for a period higher than that. 16. Mr. Sarvadeo Singh, representing the Union of India, however, submits that Sec. 20 of the Narcotic Drugs and Psychotropic Substances Act as amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Central Act 9 of 2001) provides for punishment for a term which may extend to ten years and fine which shall extend to one lakh rupees, and as such, the punishment inflicted on the appellants cannot be said to be erroneous. 17. Occurrence has taken place on 31.12.2000. Sec. 20 of the Narcotic Drugs & Psychotropic Substances Act as in force on the date of the commission of the offence reads 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, manufacturers, possesses sells, purchases, transports, imports interstate, exports inter-state or uses cannabis, shall be punishable.- (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 rupees; (ii) Where such contravention relates to cannabis other than ganja, 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 and 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." 18. Sec. 20 of the aforesaid Act was amended by Sec. 7 of the Narcotic Drugs & Psychotropic Substances (Amendment) Act, 2001 which reads as follows :- "7. Sec. 20 of the aforesaid Act was amended by Sec. 7 of the Narcotic Drugs & Psychotropic Substances (Amendment) Act, 2001 which reads as follows :- "7. Amendment of Sec. 20.- In Sec. 20 of the Principal Act, in cl. (b), for sub-clause (i) and (ii), the following sub-clause shall be substituted, namely :- "(i) where such contravention relates to cl. (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b),- (A) and 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) and involves quantity lesser then 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) and 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." 19. As a result of the aforesaid amendment, Sec. 20 of the Narcotic Drugs & Psychotropic Substance Act, now reads 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, shall be punishable.- (i) where such contravention relates to cl. (a) with rigorous imprisonment for a term which may extend to ten, years, and shall also be liable to fine which may extend to one lakh rupees; and (ii) Where such contravention relates to sub-clause (b).- (A) and 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) and involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for term which may extend to ten years, and with fine which may extend to one lakh rupees : (C) and 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 and 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 :" 20. Sec. 1(2) of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001, inter alia, provides that the amending Act shall come into force on such date as the Central Government may, by notification in the official Gazette, appoint. In exercise of the said power the Central Government appointed 2.10.2001 as the date on which the amending Act shall come into force. 21. From aforesaid, it is evident that the provisions of Sec. 20 of the Narcotic Drugs and Psychotropic Substances Act as amended by Central Act 9 of 2001 was not in force on 31.10.2000 the date on which the offence was committed. 22. Sec. 41 of the Act, 9 of 2001 provides for the application of the amending Act to pending cases, same reads as follows :- "41. Application of this Act to pending cases.- (1) Notwithstanding anything contained in sub-sec. 22. Sec. 41 of the Act, 9 of 2001 provides for the application of the amending Act to pending cases, same reads as follows :- "41. Application of this Act to pending cases.- (1) Notwithstanding anything contained in sub-sec. (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 fox 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 omission 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." 23. The Supreme Court had the occasion to consider the effect of Sec. 41 of the Amending Act 9 of 2001 in the case of Basheer V/s. State of Kerala, 2004 3 SCC 609 and in paragraph 12 thereof it has been held as follows :- "12. There is no doubt as to the correctness of the principle on which the two judgments of the High Courts rely. All statutes must be interpreted as prospective in operation, unless retrospectivity is expressly declared by the statute or to be inferred as the necessary intendment from the language used in the statute. As far as the amendments introduced in the NDPS Act, 1985, by Act 9 of 2001 are concerned, Sec. 41, in terms, says that the amending Act would apply to all cases pending before the Court or under investigation applied retrospectively, if the Act had contained any provisions to the detriment of the accused, then undoubtedly, it would have been hit by the rule against post facto legislation contained in Art. 20(1). However, we find that the amendments (at least the ones rationalising the sentencing structure) are more beneficial to the accused and amount to mollification of the rigour of the law. However, we find that the amendments (at least the ones rationalising the sentencing structure) are more beneficial to the accused and amount to mollification of the rigour of the law. Consequently, despite retrospectivity, they ought to be applied to the cases pending before the Court or even to cases pending investigation on the date on which the amendment Act came into force. Such application would not be hit by Art. 20(1) of the Constitution." (Underlining ours) 24. In the said case the Supreme Court was concerned with the provisions of Ss. 21 and 22 of the Narcotic Drugs & Psychotropic Substances Act and found the amendments rationalising and structuring the sentence and on that premise came to the conclusion that such amendment is not hit by Art. 20(1) of the Constitution of India. However, in the present case, we are concerned with Sec. 20 of the Narcotic Drugs & Psychotropic Substances Act. Said provision before the amendment and after the amendment have been quoted in extenso hereinbefore. From its comparison, it is evident that maximum sentence which Sec. 20 of the aforesaid Act provided prior to the amendment, is rigorous imprisonment for a term which may extend to five years and also fine which may extend to Rs. 50,000.00, whereas after the amendment extent to which a person can be punished is rigorous imprisonment for ten years and fine of Rs. 1 lakh. In such a situation, we are of the opinion that Art. 20 of the Constitution of India comes into picture, same reads as follows :- "20. Protection in respect of conviction for offences.- (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself." 25. From a plain reading of Art. 20(1) of the Constitution, it is evident that no person can be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. From a plain reading of Art. 20(1) of the Constitution, it is evident that no person can be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The expression law in force in our opinion means law factually in operation at the time when the offence was committed. It does not relate to law deemed to be in force by the retrospective operation of law subsequently made. 26. Thus the maximum sentence provided under the law in force at the time of the commission of the offence is rigorous imprisonment for five years and fine of Rs. 50,000.00. 27. It is well settled that every law is subservient to the Constitutional provision. Infliction of punishment greater than which could have been inflicted under the law in force at the time of the commission of the offence stares at Art. 20 of the Constitution of India. In our opinion a person can be subjected to only those penalties which are prescribed by law and in force at the time he committed the offence charged for. 28. In the case of Basheer (supra) the Supreme Court held that "if the Act had contained any provisions to the detriment of the accused, then undoubtedly, it would have been hit by the rules against post facto legislation contained in Art. 20(1)". We are further of the opinion that in view of Sec. 41 of the amending Act i.e. Central Act No. 9 of 2001 any person found guilty of any offence punishable under the Narcotic Drugs & Psychotropic Substances Act and tried for commission of offence committed prior to the commencement of Act 9 of 2001 shall be liable for punishment which is lesser than the punishment for which he is otherwise liable at the date of commission of such offence. 29. A learned single Judge of this Court had the occasion to consider this question in the case of Manna Das V/s. State of Bihar, 2007 1 PLJR 426 wherein it has been held as follows :- "13. Thus from above it is quite clear that in the present case, the Principal Act 1985 will be applicable in which the maximum punishment is only five years with a fine, which may extend to of Rs. 50,000.00. Thus from above it is quite clear that in the present case, the Principal Act 1985 will be applicable in which the maximum punishment is only five years with a fine, which may extend to of Rs. 50,000.00. The learned lower Court has apparently committed error by awarding sentence often years with a fine of Rupees one lac. It appears from the record that this accused-appellant is in jail custody since the date of arrest, that is, 20.05.2000. In other words, this appellant has already suffered imprisonment more than the maximum sentence provided under the Act. Accordingly, the sentence including fine awarded to the appellant is hereby modified to the extent of the period which has already been undergone by the appellant, which is more than six years." 30. We have been told that the appellants have remained in jail for more than six years. In view of the fact that a large quality of ganja has been recovered, the maximum sentence provided under law is called for. Accordingly, we award the sentence of five years and fine of Rs. 50,000.00, in default to suffer simple imprisonment for one year. Appellants have already remained in jail for the period aforesaid. 31. Accordingly, the appeal is partly allowed, conviction of the appellants is maintained but the sentence is reduced as above. As they have already undergone the sentence, they be set at liberty forthwith unless required in any other case.