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2010 DIGILAW 1635 (PNJ)

Santosh Kumar v. State of Punjab

2010-05-11

KANWALJIT SINGH AHLUWALIA

body2010
JUDGMENT Kanwaljit Singh Ahluwalia, J. (Oral):- The present appeal has been instituted by Santosh Kumar son of Ram Narain, resident of village Aliganj Loharai Darwaja Aliganj, District Etah (Uttar Pradesh). He was named as an accused in case FIR No. 187 dated 28.10.1997, registered at Police Station City, Moga, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “1985 Act”). 2. This Court has passed various orders to effect service upon the appellant. On 21.5.2009, this Court had directed the Court of Chief Judicial Magistrate, Moga, to issue notice to the appellant and his sureties as to why coercive method be not initiated against them. On 20.10.2009, this Court ordered that bailable warrants be issued and explanation of the Chief Judicial Magistrate, Moga, be called as to why bailable warrants had not been executed. 3. Before this Court could pass any other order, Mr. Mehardeep Singh, Deputy Advocate General, Punjab, has brought to the notice of this Court that the appellant has undergone seven years six months and 21 days, out of ten year’s sentence, awarded to him. He has placed on record affidavit of Roop Kumar, Superintendent, Central Jail, Ludhiana, wherein the period, already undergone by the appellant, has been mentioned. This affidavit has been taken on record. 4. Learned counsel for the State has also brought to the notice of this Court that the recovery effected from the appellant was 1 Kg. of opium. 5. On 10.2.1998, the trial Court had framed the following charge:- “That on 28.10.97 at 2.15 p.m. in the area of New Grain Market Zira Road, Moga, you found in possession of 1 Kg of opium without any licence and permit and thereby you committed an offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and within the cognizance of this Court”. 6. The appellant had pleaded not guilty to the charge and claimed trial. 7. In the present case, recovery of 1 Kg. of opium was effected from the appellant on 28.10.1997. The judgment of conviction and order of sentence were passed on 29.1.2002. 8. By Act No. 9 of 2001, the 1985 Act was amended and small quantity and the commercial quantity were defined. 7. In the present case, recovery of 1 Kg. of opium was effected from the appellant on 28.10.1997. The judgment of conviction and order of sentence were passed on 29.1.2002. 8. By Act No. 9 of 2001, the 1985 Act was amended and small quantity and the commercial quantity were defined. A notification, specifying a small quantity and the commercial quantity, is given in a table annexed with the 1985 Act under Sub Clause vii(a) and xxiii(a) of Section 2 of the 1985 Act. An entry No. 92, given thereunder, reads as under:- -------------------------------------------------------------------------------------------------------------------------------------- Sr. No. Name of Other non- Chemical Small Commercial Narcotic Drug proprietary Name quantity quantity And name (in gm) (in gm./Kg. Psychotropic Substances (International non-proprietary name (INN) -------------------------------------------------------------------------------------------------------------------------------------- 1 to 91 XXX XXX XXX XXX XXX 92 Opium -- And any 25 2.5 Kg. Preparation Containing opium -------------------------------------------------------------------------------------------------------------------------------------- 9. Therefore, any quantity of opium recovered, which is less than 2.5 Kgs., is a non-commercial quantity. The Hon’ble Apex Court in Basheer alias N.P. Basheer v. State of Kerala 2004(1) Recent Criminal Reports 1008 observed 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 differentia, 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 Nallamilli’s 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. The observations of this Court in Nallamilli’s 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". 10. In the present case, the trial was not concluded before 2.10.2001 and the present appeal was filed on 4.4.2002. When the amendment came on being on 2.10.2001, the trial was pending. Thus, the benefit of the amendment has to be granted to the appellant. Since 1 Kg. of opium is a non-commercial quantity, under Section 18 of the 1985 Act, sentence provided is rigorous imprisonment which may extend to ten years or with fine which may extend to one lakh rupees, or with both. 11. Hence, the conviction of the petitioner, recorded by the trial Court, is upheld. Since 1 kg. of opium is a non-commercial quantity, sentence awarded to the appellant is reduced from ten years to that of three years rigorous imprisonment and to pay a fine of Rs.20,000/-, in default whereof to further undergo rigorous imprisonment for a period of three months. 12. Learned counsel for the State has filed an affidavit of Roop Kumar, PPS-1, Superintendent, Central Jail, Ludhiana, to say that the appellant has already undergone seven years, six months and 21 days, if that is so, he need not be taken into custody. With the observations made above, the present appeal is disposed of. ----------