JUDGMENT Mr. Ajay Tewari, J. (Oral) - CRM No. 29211 of 2014 1. This is an application for suspension of sentence. Since the main case is also on the board of this Court, with the consent of learned counsel the matter is being taken up. Therefore, no separate order needs to be passed in this application. CRA-S-3362-SB-2014(O&M) 2. The appellant was convicted under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as ‘the NDPS Act’) to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine he shall further undergo rigorous imprisonment for a period of six months. 3. As per the case of the prosecution, 18 packets of Microlit each containing 100 tablets, 400 tablets of orange colour, 300 capsules of Petmol and 17 injections were recovered from the appellant which were without label and for which he could not show any permit or licence. 4. The accused-appellant was chargesheeted under Section 22 of the NDPS Act and the prosecution in order to prove its case examined three witnesses. The accused-appellant, in his defence evidence, produced document mark D-1 and closed the same. 5. On the basis of evidence led by the prosecution, the trial Court convicted the accused-appellant in the manner indicted above. 6. The only argument raised by learned senior counsel is that in this case the seizure was before 18.11.2009 and consequently as per the decision in the case of Harjit Singh v. State of Punjab, [2012(3) Law Herald (P&H) 2575] : reported as 2011(4) Supreme Court Cases 411 the entire quantity could not have been taken into consideration and the matter would have to be decided in the light of E. Michael Raj v. Narcotic Control Bureau, (2008) 5 SCC 161 . The relevant para in the case of Harjit Singh (supra) is reproduced here as under:- “Thus, it is evident that under the aforesaid notification, the whole quantity of material recovered in the for, of mixture is to be considered for the purpose of imposition of punishment. However, the submission is not acceptable as it is a settled legal proposition that a penal provision providing for enhancing he sentence does not operate retrospectively. This amendment, in fact, provides for a procedure which may enhance the sentence. However, the submission is not acceptable as it is a settled legal proposition that a penal provision providing for enhancing he sentence does not operate retrospectively. This amendment, in fact, provides for a procedure which may enhance the sentence. Thus, its application would be violative of restrictions imposed by Article 20 of the Constitution of India. We are of the view that the said Notification dated 18.11.2009 cannot be applied retrospectively and, therefore, has no application so far as the instant case is concerned.” 7. Learned senior counsel has further argued that he would not argue on the merits of the case but if this primary contention is accepted and the recovery made is consequently treated to be a non-commercial quantity, this Court may consider reducing the sentence which has been awarded to the appellant. 8. Learned AAG has very fairly accepted the applicability of the aforementioned judgment. If this judgment has to be given effect then it is also accepted that the recovered quantity would be non-commercial in nature. Custody certificate has been placed on record as per which the applicant has undergone more than 3 years in custody and since recovery is of non-commercial quantity, in my considered opinion even while upholding the conviction it would be appropriate to reduce the sentence of the appellant to that already undergone by him. Ordered accordingly. 9. Appeal stands dismissed. 10. Since the main case has been decided, the Criminal Misc.Application, if any also stands disposed of. ---------0.B.S.0------------ —————————