Judgment ( 1. ) The appellant has preferred this appeal under S. 374(2) of the Cr. P. C. against the impugned judgment and order passed by learned Special Judge (NDPS), Jabalpur in Special Case No. 20/2001 judgment dated 29-9-2003 whereby convicted the appellant under S. 8/20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act sentenced to undergo R. I. for 17 years and fine of Rs. 2 lacs in default whereof to undergo R. I. for 4years. ( 2. ) Briefly stated the facts of the case as unfolded before the trial Court that on 3-3-2001, Station House Officer C. R. Patel (PW- 7) on receiving information from informer that in truck No: PB-23/9265, Ganja after loading was to be transported from Vishakhapatnam to Rewa via Jabalpur. This information was recorded vide Ex. P. 6 and one Sanju Pandey was appraised of the information. Station House Officer proceeded in search and checked the track after making entry in daily diary vide Ex. P/22. On that day, truck did not come on particular place, therefore, Station House Officer returned back and also made entry to this effect in daily diary No. 128. Again, he received information from informer on 5-3-2001 and after completing required legal formalities, he proceeded in search and seizure of truck and loaded Ganja. Station House Officer with police force intercepted the truck in the night at 12.00-1.00 a.m. and after giving information about right of the appellant to be searched in presence of Gazetted Officer or Magistrate, upon consent given by the appellant, he and his truck was searched. In the truck. 1463.400 kgs. in 53 bags Ganja was found and same was seized. From each bags, two samples being 25 gms. were taken and sealed. Seized samples were sent to Forensic Science Laboratory and according to laboratory report, it was Ganja. Station House Officer returned back along with the appellant and seized Ganja and truck, to the concerned Police Station. In the Police Station, FIR was recorded. After examination of witnesses acquainted with the facts of the case and on completion of investigation, charge- sheet was filed against the appellant and other co-accused persons. Accused denied the charges, therefore, put to trial. They have not examined any witness in defence. In the Police Station, FIR was recorded. After examination of witnesses acquainted with the facts of the case and on completion of investigation, charge- sheet was filed against the appellant and other co-accused persons. Accused denied the charges, therefore, put to trial. They have not examined any witness in defence. Learned trial Court while acquitting co-accused Ramesh Kumar Gupta and Darshan Singh found prosecution case proved against the appellant Kuldeep Singh and convicted and sentenced him as indicated hereinabove. ( 3. ) Shri Surendra Singh, learned senior counsel canvassed only point for consideration by this Court that Ganja was seized from the possession of the appellant on 5-3- 2001 and that day according to the unamended Old Act i.e. Narcotic Drugs and Psychotropic Substances Act, 1985 under Section 20(i) of illegal possession of Ganja maximum jail sentence prescribed was five years and fine of Rs. 50,000/-, whereas learned trial Court has convicted the appellant under Section 20(b)(c) of the Act which was amended by Act 9 of 2001 by Section 7 and this amendment came into force w.e.f. 2-10-2001. In this provision, for commercial quantity the minimum sentence of 10 years which may extend to 20 years and fine of Rs. One lac which may extend to Rs. 2 lacs is prescribed. Learned senior counsel has placed reliance in support of his contention on Supreme Court judgment passed in cases of Soni Devrajbhai Babubhai v. State of Gujarat and others, AIR 1991 SC 2173 : (1991 Cri LJ 3135) and Tiwari Kanhaiyalal etc. v. The Commissioner of Income-tax, Delhi, AIR 1975 SC 902 para 6 (1975 Cri LJ 781) which reads as under :- "6. Even clause (1) of Article 20 of the Constitution does not help the appellant. It is not a post facto legislation which is being pressed into service against him. As pointed out by a Constitution Bench of this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1953 SCR 1188 at p. 1198 : ( AIR 1953 SC 394 at p. 398): (1953 Cri LJ 1480): "This article in its broad import has been enacted to prohibit convictions and sentences under ex post facto laws. The principle underlying such prohibition has been elaborately discussed and pointed out in the very learned judgment of Justice Willes in the well-known case of Phillips v. Eyre, (1870) 6 OB 1 at pp. The principle underlying such prohibition has been elaborately discussed and pointed out in the very learned judgment of Justice Willes in the well-known case of Phillips v. Eyre, (1870) 6 OB 1 at pp. 23 and 25 and also by the Supreme Court of U. S. A. in Calder v. Bull. (1780) 3 Dalles 386 : CI Law Ed 648 at p. 649). In the English case it is explained that ex post facto laws are laws which voided and punished what had been lawful when done. There can be no doubt as to the paramount importance of the principle that such ex post facto laws, which retrospectively create offences and punish them are bad as being highly inequitable and unjust." Article 20(1) also prohibits the subjecting of any person 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. (Emphasis supplied). On the facts alleged against the appellant, if found to be true, at the time he made the false statements in the declarations he did commit an offence under Section 52 of the 1922 Act. Sub-section (4) of Section 28 did not obliterate the factum of the commission of the offence and did not transmute the offence into an innocent act because of the imposition of penalty under Section 28. Such imposition merely barred the prosecution for the trial and conviction of the commission of the offence. The penalty having been imposed under Section 271 of the 1961 Act the launching of the prosecution became permissible and was not hit by Article 20(1) of the Constitution. We are inclined to think that the offence, if any, committed by the appellant was under Section 52 of the 1922 Act as the allegedly false statements in declarations were made at a time when the said Act was in force. No false statement in any declaration seems to have been made under the 1961 Act to form the basis of a charge against the appellant under Section 277 of that Act. The punishment provided in this section is greater than the one engrafted in Section 52 of the 1922 Act. No false statement in any declaration seems to have been made under the 1961 Act to form the basis of a charge against the appellant under Section 277 of that Act. The punishment provided in this section is greater than the one engrafted in Section 52 of the 1922 Act. To that extend only the appellant would be entitled to press into service the second part of clause (1) of Article 20 of the Constitution which says that no person shall : "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." ( 4. ) Commissioner of Wealth-tax, Amritsar v. Suresh Seth, AIR 1981 SC 1106 para 11 which reads as under :- "11. A liability in law ordinarily arises out of an act of commission or an act of omission. When a person does an act which Law prohibits him from doing it and attaches a penalty for doing it, he is stated to have committed an act of commission which amounts to a wrong in the eye of law. Similarly when a person omits to do an act which is required by law to be performed by him and attaches a penalty for such omission, be is said to have committed an act of omission which is also a wrong in the eye of law. Ordinarily a wrongful act or failure to perform an act required by law to be done becomes a complete act of commission or of omission, as the case may be, as soon as the wrongful act is committed in the former case and when the time prescribed by law to perform an act expires in the latter case and the liability arising therefrom gets fastened as soon as the act of commission or of omission is completed. The extent of that liability is ordinarily measured according to the law in force at the time of such completion. In the case of acts amounting to crimes the punishment to be imposed cannot be enhanced at all under our Constitution by any subsequent legislation by reason of Art. 20( 1) of the Constitution which declares that no person shall 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. In other cases, however, even though the liability may be enhanced it can only be done by a subsequent law (of course subject to the Constitution) which either by express words or by necessary implication provides for such enhancement. In the instant case the contention is that the wrong or the default in question has been altered into a continuing wrong or default giving rise to a liability de die in diem, that is, from day to day. The distinctive nature of a continuing wrong is that the law that is violated makes the wrong doer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is reasonable to take the view that the Court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. In the instant case whenever the question of levying penalty arises what has to be first considered is whether the assessee has failed without reasonable cause to file the return as required by law and if it is held that he has failed to do so then penalty has to be levied in accordance with the measure provided in the Act. When the default is the filing of a delayed return the penalty may be correlated to the time lag between the last day for filing it without penalty and the day on which it is filed and the quantum of tax or wealth involved in the case for purposes of determining the quantum of penalty but the default however is only one which takes place on the expiry of the last day for filing the return without penalty and not a continuing one. The default in question does not, however, give rise to a fresh cause of action every day. Explaining the expression a continuing cause of action Lord Lindley in Hole v. Chard Union (1894) 1 Ch 293 observed: "What is a continuing cause of action? The default in question does not, however, give rise to a fresh cause of action every day. Explaining the expression a continuing cause of action Lord Lindley in Hole v. Chard Union (1894) 1 Ch 293 observed: "What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omission of the same kind as that for which the action was brought". ( 5. ) There is no dispute that Ganja was seized on 5-3-2001 and the appellant was also arrested on same day. During the pendency of the trial, there was amendment in NDPS Act 1985 by amendment Act No. 9 of 2001. Section 41 of the amended Act is for application of amendment to pending cases 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 which he is otherwise liable at the date of the commencement 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. ( 6. ) It is clear on plain reading of Section 41 that procedure law of amendment Act would apply to pending cases but for the purpose of sentence out of two provisions, provision of lesser punishment would be applicable for sentencing the accused. This provision is fully in consonance with Article 20 of the Constitution which is reproduced herein :- 20. ) It is clear on plain reading of Section 41 that procedure law of amendment Act would apply to pending cases but for the purpose of sentence out of two provisions, provision of lesser punishment would be applicable for sentencing the accused. This provision is fully in consonance with Article 20 of the Constitution which is reproduced herein :- 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 the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself. ( 7. ) In Article 20, it is specifically mentioned that person can be convicted under the provision of law which is applicable on the day of commission of act charged as an offence. In the instant case, offence was committed on 5-3-2001 and on that day amended penal law was not in force, Act was amended by Act No. 9 of 2001 on 9-5-2001 and made applicable from 2-10-2001, therefore, this amended Act would not be applicable for imposing punishment to the appellant and the appellant would be liable for conviction under old section 20(i) of the old Act 1985 which 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, possesses, 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. ( 8. ) In the above mentioned Section, for illegal possession of ganja the maximum punishment prescribed is five years and fine of Rs. 50,000/-. According to Forensic Science Laboratory report (Ex. P/33), it is clear that Ganja was seized from the possession of the appellant, therefore, the appellant would be liable for conviction for having illegal possession of Ganja punishable under Section 20(i) of the Old Act. In support of this contention, this Court can safely rely on the Supreme Court judgments passed in case of Tiwari Kanhaiyalal etc., Soni Devrajbhai Babubhai and Commissioner of Wealth-tax, Amritsar (1975 Cri LJ 781) (supra). ( 9. ) It is also well settled legal position that penal law cannot be made applicable with retrospective effect (See AIR SC 1991 page 2173 : (1991 Cri LJ 3135) Soni Devarajbhai Babubhai (supra). ( 10. ) In view of the aforesaid, legal and factual position, this appeal is allowed in part. Conviction and sentence as passed by the trial Court to the appellant are hereby set aside instead thereof he is convicted under Section 20(i) of the Old Act and sentenced to R. I. for five years and fine of Rs. 50,000/- in default of payment of fine he shall suffer further R. I. for 15 months. ( 11. ) Office is directed to send the copy of this judgment along with the record immediately to trial Court for compliance. Appeal partly allowed.