Judgment ( 1. ) IT is one of the oldest appeals pending before this Court for decision. A bare perusal of the record would reveal that, on previous dates of hearing also, the appellant remained un-represented. ( 2. ) HAVING gone through the record with reference to the grounds urged in memo of appeal, I am of the view that this appeal can be heard and decided on merits in the light of principle laid down by the Apex Court in bani Singh vs. State of U. P. AIR 1996 SC 2439 and reiterated in Dharam pal vs. State of U. P. AIR 2008 SC 920 with the assistance of learned Dy. Govt. Advocate only, ( 3. ) THE appellant stands convicted under Section 20 of the Narcotic drugs and Psychotropic Substances Act, 1985 (for short the Act) and sentenced to undergo R. I. for 10 years and to pay a fine of Rs. 1,00,000/- and in default to suffer R. I. for 2 and half years. He was tried on the charge of being found in an illegal possession of only 100 gms. of Ganja that is cannabis/hemp within the meaning of Section 2 (iii) (b) of the Act. The corresponding judgment dated 19. 07. 1994 passed by the Third Additional sessions Judge, Satna in Special Case No. 92/1993 is the subject matter of challenge in this appeal. ( 4. ) THE prosecution case, in short, is that on 15. 09. 1993 at about 1. 30 p. m. , pursuant to credible information received, Madan Mohan Shukla (PW5) posted as ASI at P. S. Uchahara, intercepted the appellant who was coming from the side of Babupur. The bag, being carried by the appellant, was searched. It was found to contain 100 gms. of Ganja. The contraband was duly seized. A sample of 15 gms. was taken. It was forwarded to FSL, sagar for chemical examination. Corresponding report indicated that the sample contained Ganja. After completion of the investigation, charge-sheet was put up before the Special Court. ( 5. ) THE appellant pleaded false implication. He asserted that his disinclination to supply vegetables to the SHO free of cost had led to a frivolous prosecution. ( 6. ) TO bring home the charge, the prosecution examined as many as 5 witnesses including Madan Mohan (PW5) and panch witnesses Mahesh (PW2) and Santosh (PW4 ). ( 5. ) THE appellant pleaded false implication. He asserted that his disinclination to supply vegetables to the SHO free of cost had led to a frivolous prosecution. ( 6. ) TO bring home the charge, the prosecution examined as many as 5 witnesses including Madan Mohan (PW5) and panch witnesses Mahesh (PW2) and Santosh (PW4 ). No evidence was adduced on behalf of the defence. Upon consideration of the entire evidence on record, the learned special Judge, for the reasons recorded in the impugned judgment, found the appellant guilty of the offence charged with. He, therefore, convicted and sentenced him as indicated hereinabove. ( 7. ) LEGALITY and propriety of the conviction under challenge have been assailed on the following grounds : - (i) None of the independent witnesses had supported the prosecution case. (ii) The statutory provisions relating to search and seizure were not complied with. However, learned Dy. Govt. Advocate, while making reference to the incriminating pieces of evidence, has contended that the impugned conviction was fully justified. receiving the information, he inscribed the same at Serial No. 482 of Roznamcha and informed Additional Superintendent of Police, Satna accordingly and proceeded along with members of police force and panch witnesses towards the Collector Tiraha where the appellant was expected to arrive. The corresponding entry of Roznamcha (Ex. P-11) was also tendered in evidence. According to him, it was only after obtaining consent of the appellant who had come to the spot from Babupur side that he had searched the bag being carried by the appellant in presence of panch witnesses Mahesh (PW3) and santosh Kumar (PW4 ). He was emphatic in deposing that the bag was found to contain 100 gms. of Ganja wherefrom a sample of 15 gms. was taken. In the cross-examination, no material discrepancy with reference to the contents of corresponding entry of the Roznamcha (Ex. P-11), notice (Ex. P-6), consent letter (Ex. P-7) and Seizure Memo (Ex. P-3) could be elicited. Addl. S. P. R. S. Pandey (PW1) also testified that the raid was conducted under his permission only. He further asserted that the appellant along with seized contraband was also produced before him. The unchallenged testimony of constable Ramesh kumar (PW3) related to forwarding of sample to the FSL, Sagar for chemical examination. ( 9. P-3) could be elicited. Addl. S. P. R. S. Pandey (PW1) also testified that the raid was conducted under his permission only. He further asserted that the appellant along with seized contraband was also produced before him. The unchallenged testimony of constable Ramesh kumar (PW3) related to forwarding of sample to the FSL, Sagar for chemical examination. ( 9. ) IT is true that none of the panch witnesses came forward to support the evidence of the detecting officer yet, their non-corroborative evidence would not afford a ground for acquittal as the offence does not affect any private individual but the society at large. Moreover, as observed by the Apex Court in State of Punjab vs. Baldev Singh AIR 1999 SC 2378 , the social malady of drug abuse has already acquired the dimensions of an epidemic. ( 10. ) THE evidence on record clearly proves that the search and seizure of the contraband were effected only after complying with the requirements of section 42 (2) of the Act. The contention that for want of compliance with the mandatory provision of Section 50 of the Act, the search was vitiated, is not acceptable as the Ganja was allegedly recovered at a public place from a plastic bag being carried by the appellant (State of H. P. vs. Pawan Kumar air 2005 SC 2265 followed ). In this case, while explaining the malefic drug abuse, the Apex Court has struck a note of caution that drug traffickers should not go scot-free on technical pleas. ( 11. ) AS pointed out already, the chemical analysts report proved that the article forwarded for examination was Ganja only. Moreover, the appellant did not discharge the onus of proof to rebut the presumption envisaged under section 54 of the Act. In the light of overwhelming evidence on record, none of the contentions raised against legality and correctness of the impugned conviction deserve acceptance. Thus, learned trial Judge did not commit any illegality in holding that the appellant was found in an illicit possession of 100 gms. of Ganja. ( 12. In the light of overwhelming evidence on record, none of the contentions raised against legality and correctness of the impugned conviction deserve acceptance. Thus, learned trial Judge did not commit any illegality in holding that the appellant was found in an illicit possession of 100 gms. of Ganja. ( 12. ) IT is relevant to note that the Supreme Court in Basheer vs. State of kerala (2004) 3 SCC 609 , by overruling a contrary view taken by a division Bench of this Court in Ramesh vs. State of M. P. 2004 Crlj 62 , has held that the amendment introduced by the NDPS (Amendment) Act, 2001 would not be applicable to any pending appeal. As an obvious consequence, the appellant is not entitled to get benefit of the quantity based mollification of the rigour of sentencing process brought into effect by the act of 2001. ( 13. ) THE question that arises for consideration is as to whether the learned trial Judge was right in holding that possession of the contraband in question was not intended for personal consumption ? ( 14. ) AS explained in the Supreme Court in Gaunter Edwin Kircher vs. State of Goa, Secretariat Panji, Goa AIR 1993 SC 1456 , the burden to prove that the Ganja was to be used for his personal consumption was on the appellant. However, neither in his answer to the charge nor in the examination, under Section 313 of the Code of Criminal Procedure, the appellant raised a specific plea as to prospective use of the contraband. In such a situation, learned trial Judge, while placing reliance on the decision of the Apex Court in Durand Didier vs. Chief Secretary, Union Territory of goa AIR 1989 SC 1966 , proceeded to hold that Ganja seized from the possession of the appellant, though in a small quantity, was not to be meant for his personal consumption. But, the distinguishing feature was that, in durand Didiers case, the appellant was found to be in possession of the narcotic drugs or substances far in excess of the respective quantity mentioned in column 3 of the table under the notification (No. 0. 827 (E)dt. But, the distinguishing feature was that, in durand Didiers case, the appellant was found to be in possession of the narcotic drugs or substances far in excess of the respective quantity mentioned in column 3 of the table under the notification (No. 0. 827 (E)dt. 14-11-85 issued by Ministry of Finance Department of Revenue), that too, in many ingeniously devised places of concealment in the camera, shaving tube, torch and shoes whereas, in the case on hand, the appellant, who is a vegetable seller by profession, was found carrying only 100 gms. of Ganja in a bag. ( 15. ) LEGAL position is well settled on the point that the burden on an accused person to establish the plea of defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence. Further, in a criminal case, the accused is not bound by his pleadings and it is open to him to prove his defence even from the admissions made by the prosecution witnesses. ( 16. ) ADVERTING to the facts of the present case, it may be observed that the detecting Officer Madan Mohan (PW5) clearly admitted that the appellant explained the possession of the contraband by saying that it was meant for his personal consumption only. Thus, the preponderance of probability, in the light of circumstances surrounding seizure of only 100 gms. of Ganja, favoured the defence that the contraband was not meant for sale or distribution. Accordingly, it ought to have been inferred that Ganja, forming 1/5th of the small quantity specified in the notification, was possessed by the appellant for his personal consumption. The question posed above, therefore, deserves to be answered in negative. ( 17. ) AS an obvious consequence, the appeal is allowed in part. The impugned conviction and consequent sentences are hereby set aside. Instead, the appellant is convicted under Section 27 of the Act and is sentenced to undergo R. I. for six months. The question posed above, therefore, deserves to be answered in negative. ( 17. ) AS an obvious consequence, the appeal is allowed in part. The impugned conviction and consequent sentences are hereby set aside. Instead, the appellant is convicted under Section 27 of the Act and is sentenced to undergo R. I. for six months. There is no need to impose any further fine in view of the fact that the appellant has already suffered imprisonment for a period of more than 2 years and 4 months consequent to the judgment of the court below. ( 18. ) THE appellant is on bail. His bail bonds shall stand discharged. Appeal partly allowed.