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2007 DIGILAW 315 (PAT)

Tribhuwan Prasad Jaiswal v. State Of Bihar

2007-02-09

GHANSHYAM PRASAD

body2007
Judgment 1. This appeal has been preferred against the judgment of conviction and sentence dated 16-1-2004, passed by Fast Track Court No. 1, Motihari in Excise Case No. 29 of 2001. The sole appellant has been convicted under Sec.20(B) of the NDPS Act and sentenced to undergo R.I. for ten years with fine of Rs. 1 lac in default to further undergo R.I. for two years. 2. On 17-6-2001 at about 10-30 a.m. S.I. Excise Department searched the passengers of Bus No. BRO-6D-9151. This appellant was found in possession of 2 kgs. of ganja. Accordingly, after observing legal formalities and obtaining Chemical analyst report, prosecution was lodged against the appellant. After trial, appellant has been convicted and sentenced in a manner stated above. 3. In course of argument, the learned counsel for the appellant confined his submission only on point of sentence. He did not challenge the finding of guilt under Sec.20(B) of the NDPS Act, 1985. Submission is that the learned lower Court has committed grave error in awarding sentence of R.I. for ten years and fine of Rs. 1 lac. The ganja was recovered from possession of the appellant on 17-6-2001. On that very date, the Principal Act, 1985 of NDPS. Act was in vogue. The maximum punishment provided under Sec.20(B)(1) of the Act for such crime is only five years with maximum fine of Rs. 50,000.00 but the learned lower Court has awarded sentence on the basis of Amended Act which came into force much after the alleged date of the occurrence. The appellant has already remained in jail for much more than the maximum sentence provided under the Principal Act being in custody since 17-6-2001. 4. This Court finds merit in the submission of the learned counsel for the appellant, under Sec.20(B)(1) of the Principal Act, 1985, the maximum punishment is five years with maximum fine of Rs. 50,000/-. Sec.20 of the Principal Act was amended by Act 9 of 2001 which came into force on 2nd October, 2002. Thereafter, the sentence for such crime was amended and enhanced. For possession of more than small quantity but less than commercial quantity, the maximum punishment has been enhanced from five years to ten years. Applicability of the Amended Act, 2001 in pending cases is provided in Sec. 41 of the Act. Thereafter, the sentence for such crime was amended and enhanced. For possession of more than small quantity but less than commercial quantity, the maximum punishment has been enhanced from five years to ten years. Applicability of the Amended Act, 2001 in pending cases is provided in Sec. 41 of the Act. From Sec. 41 of the Act, it is quite clear that in case instituted earlier to the Amended Act came into force shall be governed by the Principal Act in which lesser punishment is provided for such crime. 5. Thus, it is quite clear that the Court below has committed error in awarding sentence to the appellant which is in excess of the Principal Act. He has awarded punishment on the basis of Amended Act which was not inforce on the date of the occurrence. It appears that the appellant has already remained in jail custody for last five years and nine months. Therefore, it is in the fitness of the justice that the sentence awarded to the appellant should be modified to the extent of the period already undergone in jail which shall also include the period of jail in default of fine. 6. Accordingly, this appeal is allowed in part in a manner said above and the sentence awarded to the appellant is modified to the extent of the period already undergone in jail. He is directed to be released forthwith if not wanted in any other case. Order accordingly.