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2009 DIGILAW 606 (PNJ)

Manjit Kaur v. State Of Punjab

2009-03-27

KANWALJIT SINGH AHLUWALIA

body2009
Judgment Kanwaljit Singh Ahluwalia, J. 1. Manjit Kaur, a lady, aged 26 years had been convicted and sentenced under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the Act) to undergo rigorous imprisonment for ten years and a fine of Rs. 1,00,000/-, in default whereof to further undergo rigorous imprisonment for one year. 2. On 16.12.1996, she was apprehended by a police party and was found in possession of 2 Kgs. of opium. 3. Mr. Sidhu appearing for the appellant, at the outset, has stated that he will not be assailing conviction of the appellant but shall be making a legal submission regarding quantum of sentence. Mr. Sidhu has further stated that an amendment was made to the Act on 2.10.2001 by the amending Act No. 9 of 2001, which came into force w.e.f. 19.10.2001. Small quantity and commercial quantity have been defined and table has been added, to Sub Clause vii(a) and xxiii(a) of Section 2 of the Act, as per entry No. 92, small quantity defined is 25 grams and commercial quantity has been defined as 2.5 Kgs. Mr. Sidhu has stated that from the appellant, 2 Kgs. of opium has been recovered, therefore, same is to be held as non-commercial quantity. 4. A reliance has been placed on judgment of Honble the Apex Court in Basheer @ N.P. Basheer v. State of Kerala, 2004(1) RCR(Criminal) 1008: 2004(2) Apex Criminal 454. Para 23 of Basheer @ N.P. Basheers case (supra) read as under :- "23. Thus, in our view, the Rubicon indicated by Parliament is the conclusion of the trial and pendency of appeal. In the cases of pending trials, and cases pending investigation, the trial is yet to conclude; hence, the retrospective mollification of the rigour of punishment has been made applicable. In the cases where the trials are concluded and appeals are pending, the application of the amended Act appears to have been excluded so as to preclude the possible contingency of reopening concluded trials. In our judgment, the classification is very much rational and based on clearly intelligible differntia, which has rational nexus with one of the objectives to be achieved by the classification. There is one exceptional situation, however, which may produce an anomalous result. In our judgment, the classification is very much rational and based on clearly intelligible differntia, which has rational nexus with one of the objectives to be achieved by the classification. There is one exceptional situation, however, which may produce an anomalous result. If the trial had just concluded before 2.10.2001, but the appeal is filed after 2.10.2001, it cannot be said that the appeal was pending as on the date of the coming into force the Amending Act, and the amendment would be applicable even in such cases. The observations of this Court in Naliamillis case (supra) would apply to such a case. The possibility of such a fortuitous case would not be strong enough reason to attract the wrath of Article 14 and is constitutional consequences. Hence, we are unable to accept the contention that the proviso to Section 41 of the amending Act is hit by Article 14". 5. It will be necessary to examine this contention raised in the facts of the present case. 6. In the present case, recovery was effected on 16.12.1996. The judgment of conviction and sentence was pronounced on 9.10.2001. The amendment has been made on 2.10.2001. Appeal in the present case was fled on 6.2.2002. Therefore, the appellant will be entitled to the benefit of the amendment as per ratio of judgment of Honble the Apex Court rendered in Basheer @ N.P. Basheers case (supra). Therefore, the contraband recovered being non-commercial on the quantum of sentence, appellant is to be dealt with under Section 18(c) of the Act. Section 18(a) defines punishment for small quantity. Section 18(b) defines punishment for non-commercial quantity which is to be termed as other case. Section 18(c) read as under :- "18(c) in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees". 7. Therefore, the maximum punishment which can be awarded can extend to ten years. Therefore, appellant can be sentenced to imprisonment less than ten years also. 8. It has been urged before me that in the present case the appellant was arrested on 16.12.1996 and she has suffered protracted trial for more than 12 years. 9. Therefore, sentence awarded upon the appellant for ten years is set aside. However, the appellant under Section 18(c) is sentenced to rigorous imprisonment for two & a half years and a fine of Rs. 9. Therefore, sentence awarded upon the appellant for ten years is set aside. However, the appellant under Section 18(c) is sentenced to rigorous imprisonment for two & a half years and a fine of Rs. 30,000/-, in default of payment of fine, the appellant shall further undergo six months rigorous imprisonment. 10. With the observations made above, the present petition is disposed off. Order accordingly.