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2007 DIGILAW 712 (PNJ)

Shobha Mandal v. State Of Haryana

2007-03-28

S.S.SARON

body2007
Judgment S.S.Saron, J. 1. This appeal has been filed by the appellant Shobha Mandal against the judgment and order dated 11.10.2002 passed by the learned Special Judge, Faridabad, whereby the appellant has been held guilty for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`Act for short). The appellant has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1.00 lac. In the event of default of payment of fine the appellant is to suffer further rigorous imprisonment for two years. The period already undergone is to be set off. 2. Case FIR No. 385 dated 24.11.1999 was registered at Police Station Sarai Khawaja for the offence under Section 20 the Act. The FIR was registered on the statement of Nathu Singh, S.I., Incharge Special Staff, Badarpur Border, Faridabad. It is stated that Nathu Singh accompanied by other police officials were patrolling near the Cutton Phatak there a special informer gave secret information to the effect that Parshant Mandal (since declared proclaimed offender) and his wife Shobha Mandal (appellant) residents of Sunarpur, District 24 Pragana, South Calcutta, bring huge quantity of ganja from Orissa by train. After unloading it at the railway station, they sell it at an exorbitant rate at Delhi and earn a lot. On inquiring they would say that some household articles were being carried. No body suspects them and business of ganja is being done by them vigorously. Parshant Mandal (non-appellant) and his wife Shobha (appellant) both would bring huge quantity of ganja in a gunny bag from Orissa. By getting down at the railway station Faridabad would come via Cutton Phatak and would go to Delhi in some private vehicle. In case a raid was conducted by holding a Barricade (Nakandi) at Cutton Phatak both could be apprehended with ganja. The information was found reliable. In the meanwhile a young man and a lady were seen coming from the side of Cutton. They were holding a gunny bag from each corner. Nathu Singh SI asked them about their whereabouts and they disclosed their respective names and addresses. The information was found reliable. In the meanwhile a young man and a lady were seen coming from the side of Cutton. They were holding a gunny bag from each corner. Nathu Singh SI asked them about their whereabouts and they disclosed their respective names and addresses. They were informed of the secret information that had been received and were served with a notice under Section 50 of the Act to the effect that they possess contraband articles in the bag and whether they would like to be searched by a Magistrate or a Gazetted Officer of the police or a Gazetted Officer (Civil) or before Nathu Singh SI himself. For the purpose of search of the contraband article both of them intended that they be searched by a Gazetted Officer of the police. In this respect a memo was prepared and Mr. Kuldip Singh Sihag DSP Headquarters, Faridabad, was informed on telephone. The DSP Headquarters along with his staff reached the spot. On his instructions Nathu Singh SI searched the bag as per rules and a number of bundles of ganja wrapped in newspaper were found. After taking out scales from the Investigation Bag the recovered contraband was weighed. It was found to be 45 kg. in weight. Out of the recovered ganja two samples of 500 grams each were drawn and the recovered contents along with sample with the seal `KSS was sealed by the DSP Headquarters. Nathu Singh SI put his seal `A.S.. The sample seals `KSS and `AS as well as the contents were taken in possession by the police vide memo. The seal was handed over to Head Constable Abhey Singh and DSP retained his seal with him after its use. The aforesaid Parshant Mandal (non-appellant) and Shobha (appellant) had committed an offence punishable under Section 20 of the Act by having in their possession 45 kgs. of ganja without any licence. In respect of this a writing was sent through UGC to the police station for registration of a case. It was requested that after registration of the case its FIR number be intimated and after preparing special report it be also sent separately. It was also mentioned that during investigation whatsoever circumstance would be found relating to the offence, the offence would be amended accordingly. On receipt of the information the case was registered for the offence under Section 20 of the Act. It was also mentioned that during investigation whatsoever circumstance would be found relating to the offence, the offence would be amended accordingly. On receipt of the information the case was registered for the offence under Section 20 of the Act. Copy of the police file along with its original writing was sent to SI Nathu Singh at the spot through UGC for investigation. Special Report was sent through Constable Sarup Singh 973 to the Illaqa Magistrate and the officers concerned. After investigation the police filed charge report in terms of Section 173 of the Code of Criminal Procedure (`Cr.P.C. for short) in the Court of learned Judicial Magistrate Ist Class, Faridabad on 3.2.2000. The learned Magistrate vide order dated 17.2.2000 keeping in view the fact that the offence attributed to the accused Shobha Mandal (appellant) and Parshant Mandal, fell under the Act which is exclusively triable by the Special Court, committed the case to the Special Court for further trial in terms of Section 209 Cr.P.C. The learned Additional Sessions Judge, to whom the case was assigned on consideration of the record of the case and after hearing learned PP and the learned defence counsel found that there was a ground for presuming that the accused had committed an offence punishable under Section 20 of the Act they were charged accordingly on 22.5.2000. The accused pleaded not guilty to the charge and claimed trial. 3. The prosecution in order to prove its case examined Rajesh Kumar ASI PS Sarai Khawaja-PW1, Smt. Kailash-ASI, PTC Madhuban-PW2, Maha Singh Constable No. 1132-PW3, Sh. Angoori Lal, SI CIA Sector 19, Panchkula-PW4, Abhey Singh HC No. 997 Special Staff, Badarpur Border, Faridabad-PW5, Nathu Singh Inspector/SHO PS City Rewari-PW6. PW Rajender Singh Constable was given up as unnecessary. Beside Kuldip Singh Sihag SP Gurgaon PW7 was examined. Manoj Kumar Draftsman Constable No. 1498 PW8 was also examined. Affidavits of formal witnesses and report of the Forensic Science Laboratory Ex. PH was tendered in evidence and the evidence of the prosecution was closed by the learned Public Prosecutor on 2.8.2002. Statement of the accused Shobha Mandal (appellant) was recorded in terms of Section 313 Cr.P.C. The substance of the evidence appearing in the case against her was put to her. It was stated by her that she does not know anything. Statement of the accused Shobha Mandal (appellant) was recorded in terms of Section 313 Cr.P.C. The substance of the evidence appearing in the case against her was put to her. It was stated by her that she does not know anything. Brother of her husband resides in Alakhnanda Jhuggis in Delhi and she accompanied her husband to Faridabad. Besides, it was stated that she was innocent. 4. During trial of the case Parshant Mandal the husband and co-accused of the appellant was granted bail by the learned Addl. Sessions Judge, Faridabad on 8.6.2000. Thereafter he absconded. Accordingly, he was declared as a proclaimed offender by the learned Additional Sessions Judge vide order dated 6.2.2002. The learned Additional Sessions Judge, after considering the evidence and material on record has convicted the appellant to 10 years rigorous imprisonment and fine of Rs. 1 lac. The said order, as already noticed, is assailed by the appellant in the present appeal. 5. Learned counsel for the appellant has contended that the prosecution has failed to prove its case against the appellant. It is submitted that the secret information received by Nathu Singh SI Incharge Special Staff, Badarpur, PW6, was not reduced into writing as is the requirement under Section 42 of the Act. It is further contended that the appellant is not shown to be in conscious possession of the contraband and no question was put to her in her statement under Section 313 Cr.P.C. so as to raise a presumption of her being in possession of the contraband. In support of the said contention learned counsel cites Kashmir Singh v. State of Punjab, 2006(2) Apex Criminal 24 : 2006(2) RCR(Criminal) 477 (P&H) (FB). A reference has also been made to the case of Sukhdev Singh v. State of Punjab and others, 2006(4) RCR(Criminal) 263 (P&H) (DB). It is further contended that the seals with which the contraband had been sealed were not liable to be retained by the prosecution agency itself and this having been done creates a serious doubt in the prosecution case. In this regard reliance has been placed on the case of Baldev Singh v. State of Punjab, 2005(1) RCR 823 (P&H). 6. In response learned counsel for the State has submitted that the prosecution has proved its case in all respects. In this regard reliance has been placed on the case of Baldev Singh v. State of Punjab, 2005(1) RCR 823 (P&H). 6. In response learned counsel for the State has submitted that the prosecution has proved its case in all respects. It is submitted that Section 42 of the Act is inapplicable inasmuch as the recovery has not been effected from any concealed building, conveyance or enclosed place. Therefore, there was no requirement of reducing the secret information in writing. It is also contended that the appellant was apprehended at the spot and, therefore, the appellant was admittedly in possession of the contraband. Besides, it is not a case where presumption has been raised in respect of the recovered contraband. As such, the case law referred to by the learned counsel for the appellant is not applicable. It is also submitted that no prejudice has been caused to the appellant with the sample seals remaining with the police as sample seals in any case were also sent to the Chemical Examiner who certified that the seals on the sample were found intact and tallied with the specimen seals forwarded by the authority. 7. I have given my thoughtful consideration to the respective contentions of the learned counsel appearing for the parties. The appellants were apprehended by Nathu Singh the then Incharge Special Staff Badarpur Border, Faridabad-PW6. On 24.11.1999 he along with HC Abhey Singh-PW5 and other police officials were present near the turn of Cutton Phatak in connection with patrolling. In the meanwhile secret informer gave information to the effect that the appellant along with her husband Parshant Mandal bring ganja from Orissa in huge quantity and sell it in Delhi at high price. They get down at Faridabad railway station and then sell the contraband at Delhi. In case a raid was conducted they could be intercepted. A raiding party was organised. In the meantime the appellant and her husband Parshant Mandal were seen coming holding a gunny bag in their hands. The corner of both the bags were held by each of the accused. The secret informer had already informed that they would come on the said date i.e. 24.11.1999 with huge quantity of ganja at Faridabad from Orissa. They would then go to Delhi for selling the ganja. The accused were apprehended with the help of other police officials. The corner of both the bags were held by each of the accused. The secret informer had already informed that they would come on the said date i.e. 24.11.1999 with huge quantity of ganja at Faridabad from Orissa. They would then go to Delhi for selling the ganja. The accused were apprehended with the help of other police officials. On inquiry the appellant disclosed her name as Shobha Mandal and her husband disclosed his name as Parshant Mandal. A notice was served on them in terms of Section 50 of the Act to the effect as to whether they would like to be searched in presence of a Magistrate, a Gazetted Officer of the police or a Gazetted Officer (Civil) or by Nathu Singh SI PW6 himself. Notice Ex-PD was served. Both the accused put their thumb impressions on the same. They opted to be searched in the presence of a Gazetted police officer. Their reply in this regard is Ex.- PD/1. Accordingly DSP Headquarters Mr. Kuldip Singh Sihag (PW7) was informed who reached the spot and verified the facts. On his directions Nathu Singh SI PW6 searched the gunny bag of the accused and it was found to contain Ganja. On weighing it was found to be 45 kgs. Out of the recovered contraband, two samples of 500 grams each were taken separately. Separate `palanda (parcel) was prepared and was sealed with the seal `AS by Nathu Singh and seal `KSS was affixed by Kuldip Singh Sihag (PW7) DSP. The seals after use were handed over the HC Abhey Singh and were taken in possession vide recovery memo Ex.-PE which bears the signatures of Nathu Singh ASI and is attested by DSP Kuldip Singh Sihag (PW-7) and other witnesses. The ruqa (memo) Ex.-PA/1 was sent through constable for registration of the case on which formal FIR Ex-PA/2 was registered. A rough site plan Ex.-PF was prepared and the statements of PWs were recorded at the spot. The accused were arrested and along with the case property were brought to the police station. The case property was deposited with MHC. Nathu Singh PW6 was cross-examined at length. However, nothing could be brought out which could be said to be detrimental to the case of the prosecution. To similar effect is the statement of Abhey Singh HC PW5. He has deposed on the same lines as Nathu Singh SI-PW6. The case property was deposited with MHC. Nathu Singh PW6 was cross-examined at length. However, nothing could be brought out which could be said to be detrimental to the case of the prosecution. To similar effect is the statement of Abhey Singh HC PW5. He has deposed on the same lines as Nathu Singh SI-PW6. Kuldeep Singh Sihag, the then DSP Head Quarter Faridabad appeared as PW-7. He has stated that on receiving the telephone call he reached Cutton Phatak on Delhi highway. He verified the facts and then directed SI Nathu Singh PW6 to carry out search of the gunny bag. During search the gunny bag was found to contain ganja. On weighment it was found to be 45 kgs. Out of the same two samples of 500 grams each were drawn for Chemical examination. Reamining ganja was put in the same bag and separate `Palanda (parcel) was prepared and sealed with his seal `KSS and seal `AS of SI Nathu Singh PW6. The seal `AS after use was handed over to HC Abhey Singh, whereas the seal `KSS was kept by him. The recovered articles were taken in possession vide recovery memo Ex.-PE. DSP Kuldip Singh Sihag PW7 was cross-examined. However, nothing has been brought out from his statement which would favour the accused. Therefore, from the aforesaid statement it is evident that the appellant and her husband Parshant Mandal were apprehended with the contraband and they could not satisfactorily account for possession of the same. The sample that was sent to the Chemical Examiner, was identified as Ganja (cannabis), vide report of the Chemical Examiner (Ex. PH), which is punishable in terms of Section 20 of the Act. 8. The contention of the learned counsel for the appellant that secret information has not been reduced into writing is without any substance. The said contention has been raised on the ground that it is the requirement of Section 42 of the Act to record such a statement. PH), which is punishable in terms of Section 20 of the Act. 8. The contention of the learned counsel for the appellant that secret information has not been reduced into writing is without any substance. The said contention has been raised on the ground that it is the requirement of Section 42 of the Act to record such a statement. A perusal of Section 42 of the Act would show that the officer authorised if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under the Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of the Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset carry out the actions as are provided in Clauses (a) to (d) of Section 42(1) of the Act. The same inter alia provide for the authorised officer between sunrise and sunset to enter into and search any building, conveyance and place; in case of resistance, break open any door and remove any obstacle to such entry, seize such drug or substance and all material used in the manufacture thereof etc. and detain and search and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under the Act. 9. In Krishan Kumar (Smt.) @ Thakurraggan v. State of Rajasthan, 2004(2) SCC 608 it was held that if the officer concerned has reason to believe from personal knowledge or information given by any person and has been taken down in writing that any narcotic drug or substance in respect of which the offence punishable under Chapter IV of the Act has been committed or any article which may furnish evidence of the commission of such evidence is kept concealed in any "building or conveyance or enclosed place" he may between sunrise and sunset do the acts enumerated in clauses (a) to (d) of sub-section (1) of Section 42 of the Act. The present is a case where the appellant and her husband were apprehended at Cutton Phatak on the main road. It is not a case where the provisions of Section 42 of the Act would apply as the recovery is from a public place and is not between sunrise and sunset where the authorised officer was required to take any action as provided for by the provisions of Clauses (a) to (d). As such, there was no need for the authorised officer to take down anything in writing as has been contended by the learned counsel for the appellant. Therefore, the contention as raised by learned counsel for the appellant is without basis and is misplaced. Therefore, the search being effected not from any building or conveyance or enclosed place, the requirements of Section 42(1) are not attracted. In any case a perusal of the FIR Ex-PA/2 which has been referred to above would show that Rajesh Kumar SI recorded the action taken in the police station wherein it is stated that case has been registered for the offence and copy of the police file along with original writing was being sent to the SI at the spot through the UGC who had brought the file. Beside special report was sent through Constable Sarup Singh to the Illaqa Magistrate of the concerned area. Rajesh Kumar ASI has appeared as PW-1 and he was stated that on 24.11.1999 he was posted as ASI at PS Sarai Khawaja. He recorded formal FIR Ex-PA on receipt of ruqa Ex.-PA/1. After completion of investigation, report under Section 173 Cr.P.C. was prepared by Jaibir Singh SI/SHO whose signatures he identified. Opportunity was given to the accused to cross-examine him but he was not cross-examined and his cross- examination was nil. 10. The contention of learned counsel for the appellant that the appellant cannot be said to be in conscious possession of the contraband is also without force. It may be noticed that the appellant along with her husband were apprehended at the spot with the gunny bag containing the contraband. The corners of the gunny bag were being held by both the accused. Therefore, it cannot be said that it is a case where presumption is to be raised for the purpose of holding that the appellant was in possession of the contraband. The corners of the gunny bag were being held by both the accused. Therefore, it cannot be said that it is a case where presumption is to be raised for the purpose of holding that the appellant was in possession of the contraband. In fact, it is a case where conscious possession of the recovered contraband has been proved. In Kashmir Singhs case (supra), referred to by the learned counsel for the appellant, the accused therein were travelling in a truck which was intercepted by the police party. The truck was carrying 110 bags of Poppy husk. The question that was referred to the Full Bench for decision was regarding the correct meaning of "possession" in the context of the Act and under what circumstances and in what manner was the presumption of "culpable mental state" to be raised under Section 35 of the Act. Furthermore, under what circumstances and in what manner is the Court to presume that the accused committed the offence, in respect of any drug, the possession of which he fails to account satisfactorily. The said question was considered in the context where two men travelling in a truck were stopped by the police and on search it was found that they were using the truck for transportation of huge quantity of poppy husk. It was noticed that according to Section 54, in trials under the Act, it may be presumed unless and until the contrary is proved that the accused had committed an offence for the possession of which he fails to account for satisfactorily. Besides, in respect of an offence under the Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state. In defence, the accused shall have to prove that he had no such mental state with respect to the act charged as an offence. It was in the aforesaid circumstances that the applicability of Section 35 of the Act relating to presumption of culpable mental state and Section 54 of the Act relating to presumption of possession of illicit article was considered. It was in the aforesaid circumstances that the applicability of Section 35 of the Act relating to presumption of culpable mental state and Section 54 of the Act relating to presumption of possession of illicit article was considered. It was held that no presumption under Sections 35 and 54 of the Act should be used against the accused unless he has been given an opportunity to rebut the presumption in his statement under Section 313 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumption. It is thereafter, that the accused should be given an opportunity to lead evidence in defence in support of his contention. In the present case, no presumption in terms of Sections 35 or 54 of the Act is claimed by prosecution. The recovery having been effected at the spot from the possession of the appellant, the provision of Sections 35 and 54 of the Act are inapplicable. Consequently, the judgment of Full Bench of this Court in Kashmir Singhs case (supra) as also that of a Division Bench in Sukhdev Singhs case (supra) referred to by learned counsel for the appellant are inapplicable. As such, there was no requirement of putting to the accused in their examination under Section 313 Cr.P.C. as to whether they were in conscious possession of the contraband. The evidence put to the appellant in her statement under Section 313 Cr.P.C. is the substance of evidence which inter alia includes that the appellant along with her husband were bringing huge quantity of ganja from Orissa which was to be sold by them at Delhi. The police party intercepted the appellant and her husband while they were together holding the gunny bag in their hands. Thereafter a raid was conducted. Therefore, the necessary substance of the evidence was put to the appellant in terms of Section 313 Cr.P.C. 11. The next contention of learned counsel for the appellant regarding the seals not being forwarded and the same being retained by police officers may be considered. It may be noticed that Smt. Kailash ASI PTC Madhuban PW2 has been examined. It is stated by her that on 24.11.1999 she was posted as MHC PS Sarai Khawaja, Faridabad. She placed on record her duly sworn affidavit Ex. PB which she stated may be read as her statement. An opportunity was given to the defence to cross-examine her. It may be noticed that Smt. Kailash ASI PTC Madhuban PW2 has been examined. It is stated by her that on 24.11.1999 she was posted as MHC PS Sarai Khawaja, Faridabad. She placed on record her duly sworn affidavit Ex. PB which she stated may be read as her statement. An opportunity was given to the defence to cross-examine her. However, it was not availed. As per the affidavit Ex-PB of Smt. Kailash ASI PW2 stated that on 24.11.1999 she was posted as MHC at PS Sarai Khawaja. On that day she was entrusted with the case property. The sample seal was deposited in the malkhana. On 29.12.1999 the sample seal and the sample bearing the seal were sent to FSL Madhuban, Karnal through constable Maha Singh, 2205, who deposited the same with the FSL. The FSL report Ex-PH under the column `Nature of Seals records that the seals on the parcels were found intact and tallied with the specimen seals as per the forwarding authority. In the opinion of the FSL the sample was identified as Ganja "Cannabis". Therefore, evidently Smt. Kailash ASI PW2, who had taken in possession the contraband as also the seal was not cross-examined with regard to the seal that was deposited in the Malkhana. Learned trial Court in its order has referred to the affidavits Ex-PB, PC as also report of FSL Ex-PH. It was observed that a combined reading of the same revealed that the sample seal was sent to the Chemical Examiner and he has given a certificate that the seal on the sample was found intact and tallied with the specimen seals as per the forwarding authority. It was observed that in such circumstances it could be presumed that apart from the case property the sample seal was also deposited with the MHC otherwise there was no occasion for the MHC to send the sample seal to the Chemical Examiner. There is nothing to show that the said reasons and the findings recorded by the learned trial Court are in any manner perverse or discrepant. There is nothing to show that the said reasons and the findings recorded by the learned trial Court are in any manner perverse or discrepant. In Baldev Singhs case (supra), referred to by the learned counsel for the appellant, it was held that till the case property had not been despatched to the office of FSL, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out. The said circumstance may arise in the facts and circumstances of a given case. However, in the present case, as has already been noticed, Smt. Kailash ASI (PW2) was not cross-examined in this regard. Besides, it has not been shown by the appellant as to whether any prejudice was caused to her. The provision relating to deposit of the sample and the contraband and the sending of the same are procedural in nature. Therefore, it is to be seen and ascertained in each case whether any prejudice has been caused to an accused or there has been a waiver on his part. The ultimate test to vitiate the trial is always of prejudice having been caused. In Pipal Singh v. Union of India, 2003(1) RCR(Crl.) 815, a Division Bench of this Court considered the case of recovery of heroin on receipt of secret information on which the information was not reduced in writing and sent to superior officer as required under Section 42 of the Act. The recovery in the said case was from a conveyance, i.e. a truck. It was held that the accused has to prove prejudice to take the benefit of Section 42(1) of the Act. As already noticed, no prejudice having been caused to the appellant, the ratio of the judgment in Baldev Singhs case (supra) is inapplicable. 12. Therefore, there is no merit as regards the finding recorded by the learned trial Court convicting the appellant for the offence under Section 20 of the Act. Insofar as the sentence is concerned it is contended by the learned counsel for the appellant that he may be granted time to address arguments. On his request, adjourned to 22.3.2007. 13. This order shall be read in continuation of the order dated 21.3.2007. Counsel for the parties, on the question of sentence, have been heard. 14. Insofar as the sentence is concerned it is contended by the learned counsel for the appellant that he may be granted time to address arguments. On his request, adjourned to 22.3.2007. 13. This order shall be read in continuation of the order dated 21.3.2007. Counsel for the parties, on the question of sentence, have been heard. 14. Learned counsel for the appellant has submitted that the learned trial Court has erred in convicting the appellant to RI for 10 years and fine of Rs. 1.00 lakh, for the offence under Section 20 of the Act. It is submitted that Section 20 of the Act was amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act 2001 (Amendment Act No. 9 of 2001) which came into force w.e.f. 2.10.2001 i.e. from the date of its publication in the gazette. Earlier to its amendment, the punishment for contravention in relation to cultivation of cannabis plant or production, manufacturing, selling, purchasing, transporting, importing inter-State, exporting inter-State or using Cannabis was punishable where such contravention related to Ganja or the cultivation of Cannabis with rigorous imprisonment for a term which may extend to 5 years and also fine which may extend to Rs. 50,000/-. Therefore, it is contended that the imposition of 10 years rigorous imprisonment and fine of Rs. 1.00 lakh which has been provided by the Amendment Act No. 9 of 2001 would not apply in respect of the appellant who is alleged to have committed the offence before the amendment and rather it would be hit by Article 20(1) of the Constitution of India. Therefore, it is submitted that the sentence of imprisonment is to be imposed in accordance with the provisions of Section 20 of the Act as it existed prior to its amendment. 15. In response, learned counsel for the State has submitted that the appellant has been rightly convicted in accordance with the provisions of the Amendment Act No. 9 of 2001 as the said Act came into force w.e.f. 2.10.2001 and at that time the trial was pending inasmuch as the appellant was convicted by the trial Court on 11.10.2002. Therefore, the provisions of Section 41(1) of the Amendment Act No. 9 of 2001 would be applicable. Therefore, the provisions of Section 41(1) of the Amendment Act No. 9 of 2001 would be applicable. The proviso to Section 41(1) of the Amendment Act No. 9 of 2001, it is contended, would not apply as the appeal was not pending on 2.10.2001 but had been filed thereafter on 30.10.2002. Learned counsel for the State, in support of his contention, cites Basheer @ NP Basheer v. State of Kerala, 2004(2) Apex Criminal 454 : 2004(1) RCR(Crl.) 1008 (SC). 16. I have given my thoughtful consideration to the contentions of the learned counsel for the parties. 17. It may be noticed that the appellant was tried and convicted for having in her possession Ganja. In the report of the FSL Haryana (Ex-PH), it was opined as follows :- "The sample was identified as Ganja (cannabis)". Section 20 of the Act before its amendment provided for punishment for contravention in relation to cannabis plant and cannabis. The said Section 20 reads as under :- "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, sells, purchases, transports imports inter-State, 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. In terms of the above section, the punishment that has been provided in respect of contravention relating to Ganja, as in the present case is five years RI and also fine which may extend to Rs. 50,000/-. Section 7 of the Amendment Act No. 9 of 2001 which amended Section 20, is in the following terms :- "7. Amendment of Section 20. 50,000/-. Section 7 of the Amendment Act No. 9 of 2001 which amended Section 20, is in the following terms :- "7. Amendment of Section 20. - In Section 20 of the principal Act, in clause (b) for sub-clauses (i) and (ii), the following sub-clauses shall be substituted, namely :- "(i) where such contravention relates to clause (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 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. The above said amendment has categorised the punishment on the basis of quantity. This has been considered by Supreme Court in Basheer @ NP Basheers case (supra) wherein it has been observed that as a consequence of the Amendment Act No. 9 of 2001 coming into force, the sentencing structure underwent a drastic change. The Amendment Act introduced the concept of "commercial quantity" in relation to narcotic drugs or psychotropic substances by adding clause (viia) in Section 2 which defines this term as any quantity greater than a quantity specified by Central Government by notification in the official gazette. Further, the expression "small quantity" is defined in Section 2(xxiiia) as any quantity lesser than the quantity specified in the notification. Under the rationalized sentencing structure, the punishment would vary depending on whether the quantity of offending material was "small quantity", "commercial quantity" or something in between. This is the effect of the rationalization of sentencing structure carried out by the Amending Act 9 of 2001. Under the rationalized sentencing structure, the punishment would vary depending on whether the quantity of offending material was "small quantity", "commercial quantity" or something in between. This is the effect of the rationalization of sentencing structure carried out by the Amending Act 9 of 2001. A notification has been issued by the Central Govt on 19.10.2001 in respect of 239 Narcotic Drugs and Psychotropic Substances as to what would be "small quantity" and "commercial quantity". The "commercial quantity" in respect of Ganja is more than 20 kgs which is mentioned at entry No. 55 of the notification dated 19.10.2001. The recovery in the present case is 35 kgs which is a "commercial quantity" in terms of the notification dated 19.10.2001. 20. The question that is to be considered is whether the appellant is to be governed by the provisions of Section 20 of the Act as amended by the Amendment Act No. 9 of 2001 or he is liable to be sentenced in accordance with the provisions of Section 20 of the Act as they stood prior to the amendment. The contention of the learned counsel for the State though is that the present case is to be governed by the provisions of the Act as has been amended by virtue of Section 41. The same, however, would in fact not apply. Section 41 of the Amendment Act No. 9 of 2001 reads as under :- "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 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 the 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." 21. (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." 21. In terms of the above Section 41, all cases pending before the Court on 3.10.2001 and all cases under investigation as on the said date, are to be disposed of in accordance with the provisions of the Act as amended by the Amendment Act No. 9 of 2001. It was observed by the Honble Supreme Court in Basheer @ NP Basheers case (supra) that the benefit of the rationalized sentencing structure would be applicable to the said category of cases. The proviso, however, makes an exception and excludes the application of the rationalized sentencing structure to cases pending in appeal. In the present case, the provisions of Section 41(1) of the Amendment Act No. 9 of 2001 would be inapplicable. In Basheer @ NP Basheers case (supra), the question that was considered was as to the constitutional validity of the proviso to sub-section (1) of Section 41 of the Amendment Act No. 9 of 2001. It was contended on behalf of the appellants therein that the benefit of the rationalized structure of punishment introduced by the Amendment Act No. 9 of 2001 should also be made available to all pending cases (including appeals) in Courts from the date the amendment came into force. The benefit of the proviso to Section 41(1) of the Amendment Act No. 9 of 2001, it was contended, denies them the benefit by putting them in a different category. Besides, the said proviso was unreasonable and violative of the equality right guaranteed by Article 14 of the Constitution resulting in hostile discrimination. In the said context, it was held by the Honble Supreme Court that the proviso to Section 41(1) of the Amendment Act No. 9 of 2001 is constitutional and is not hit by Article 14. Consequently, in all cases in which the trials had concluded and appeals were pending on 2.10.2001 when the amending Act No. 9 of 2001 came into force, the amendments introduced by the Amending Act No. 9 of 2001 would not be applicable and they would have to be disposed of in accordance with the Act as it stood before 2.10.2001. Consequently, in all cases in which the trials had concluded and appeals were pending on 2.10.2001 when the amending Act No. 9 of 2001 came into force, the amendments introduced by the Amending Act No. 9 of 2001 would not be applicable and they would have to be disposed of in accordance with the Act as it stood before 2.10.2001. The question of amendment or taking the benefit of the beneficial provisions of the Amendment Act No. 9 of 2001 is not involved in the present case. The appellant seeks the implementation of the provisions as they existed prior to 2.10.2001 which evidently in respect of contravention relating to `Ganja or the cultivation of cannabis or cannabis plant provide for RI for a term which may extend to 5 years and also fine which may extend to Rs. 50,000/-. Therefore, in the present case, the provisions of Article 20(1) of the Constitution of India which envisage that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence or 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 would apply. In fact, in Basheer @ NP Basheers case (supra), it was expressly noticed that if the Act had contained any provisions to the detriment to the accused, then undoubtedly, it would have been hit by the rule against post facto legislation contained in Article 20(1) of the Constitution. In the present case, Article 20(1) of the Constitution applies and the appellant cannot be made liable or sentenced for a punishment greater than that which had been provided before the Amendment Act No. 9 of 2001 had come into operation. The offence was committed by the appellant on 24.11.1999 when she was apprehended. She was convicted by the learned Special Judge, Faridabad on 11.10.2002. The appeal was filed by her in this Court on 30.10.2002 and the Amendment Act No. 9 of 2001 came into force w.e.f. 2.10.2001. Therefore, at the time when the offence had been committed, the penalty that was provided in respect of contravention relating to Ganja was lesser. Therefore, it is the lesser punishment which can be imposed by virtue of the provisions of Article 20(1) of the Constitution of India. Therefore, at the time when the offence had been committed, the penalty that was provided in respect of contravention relating to Ganja was lesser. Therefore, it is the lesser punishment which can be imposed by virtue of the provisions of Article 20(1) of the Constitution of India. In Transmission Corporation of S.P. v. Ch. Prabhakar and others, 2004(3) Apex Criminal 276 : 2004(3) RCR(Crl.) 692 (SC), it has held that penal provisions are not to have retrospective effect by amendment in law enhancing the quantum of punishment and taking away the right of appeal. Therefore, in view of Article 20(1) of the Constitution of India, the appellant cannot be subjected to penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. 22. Keeping in view the afore noticed position, the sentence provided at the time of commission of the offence in terms of Section 20 of the Act was RI for 5 years and fine which may extend to Rs. 50,000/-. Therefore, greater or higher sentence which is provided by the Amendment Act after the offence has been committed by the appellant would be inapplicable to the case of the appellant. Consequently, the order of the learned trial Court imposing sentence of RI for 10 years and fine of Rs. 1.00 lakh is modified to RI for 5 years. The sentence of fine in the circumstances of the case shall stand reduced to Rs. 5,000/-. In the event of default of payment of fine, the appellant shall undergo further RI for a period of one year. 23. With the modification in the sentence of imprisonment while maintaining the order of conviction, the appeal stands disposed of accordingly.