Bhima Baban More Vs the State of Maharashtra

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 SIDE JURISDICTION
 CRIMINAL APPEAL NO.58 OF 2007

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 Bhima Baban More
 residing at 54, E.P./172 Lohiyanagar
 Pune ...Appellant.
 V/s.

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 The State of Maharashtra ...Respondent.

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 Smt.Shraddha Mohite, adv. appointed for the Appellant.
 Shri Y.S.Shinde, APP for the Respondent/State.

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 CORAM: J.H.BHATIA, J.
 DATE : 10th April, 2007.

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ORAL JUDGMENT:

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 1. The appellant/accused was convicted by the
 Special Judge N.D.P.S.Act at Pune in N.D.P.S. Sessions
 Case No. 471 of 1991 for the offence punishable under
 Section 21 of the N.D.P.S. Act and was sentenced to
 undergo R.I. for 10 years and to pay fine of Rs.1 lakh
 and in default to pay fine he was to undergo further
 R.I. for two years. The appellant has preferred this
 appeal from the jail on limited point of sentence.
 According to him, he is physically handicapped and he is
 in jail for more than 8 years. If the sentence is
 reduced to some extent, he may be released.

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 2. Prosecution case in brief, is that on 3-7-1991

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 after getting an information that one Bhima More was in
 possession of Gard i.e, Heroin near Lohiya Nagar, PSI

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 Atmacharan Shinde after following all the mandatory
 formalities under the law, raided the place and found
 the accused conforming to the description given by the
 informant. On enquiry the accused confirmed that he was
 Bhima Baban More. He was informed that there was
 suspicion that he was in possession of Gard powder and
 his personal search was to be taken. He was offered
 choice of his personal search in presence of gazetted
 officer or the Magistrate. Thereafter in presence of
 the panch witnesses, his personal search was taken and
 60 small packets containing in all 13 grams. 400
 milligrams heroin was recovered from his pocket.
 Besides an amount of Rs.100/- was also found. These 60
 packets were duly wrapped, tied and sealed in presence
 of panchas. Property was referred to C.A. and the
 C.A.Reports confirmed that it was Gard or heroin. After
 trial accused came to be convicted and sentenced as
 stated above.

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 3. The incident of this case had taken place on
 3-7-1991 and the accused was convicted by the judgment
 dated 17th September, 1998. It is true that he had not
 preferred any appeal for a long time because he was in
 jail and because of the financial difficulties he could
 not afford to prefer appeal. Therefore, there was a
 long delay in filing the appeal. He preferred this

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 appeal through jail on 23-8-2005. Taking into

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 consideration the fact that during the custody in jail
 he had suffered from gangrene and both of his legs were
 amputated, this Court felt that on humanitarian ground
 in spite of delay, the appeal should be admitted. As
 appeal is now admitted, it will be treated as
 continuation of the same criminal proceeding.

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 4. Section 21 of the N.D.P.S.Act as it stood prior
 to the amendment as per the N.D.P.S. (Amendment) Act,
 2001 with effect from 2-10-2001, the offence under
 Section 21 was punishable with R.I. for a term which
 shall not be less than 10 years but which may extend to
 20 years and also with fine which shall not be less than
 Rs.1 lakh but which may extend to 2 lakh rupees. In
 view of this mandatory provision, the learned trial
 Court awarded the minimum prescribed sentence as per the
 law. However, Amendment Act of 2001 made major changes.
 Section 21 was completely substituted by the new Section
 21, which reads as follows:

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"21. Punishment for contravention in relation
to manufactured drugs and preparations --
 Whoever, in contravention of any provision of
 this Act or any rule or order made or condition
 of licence granted thereunder, manufactures,
 possesses, sells, purchases, transports,
 imports inter-State, exports inter-State or
 uses any manufactured drug or any preparation
 containing any manufactured drug shall be

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 punishable, --

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 (a) where the contravention involves small
 quantity, with rigorous imprisonment for a term
 which may extend to six months, or with fine
 which may extend to ten thousand rupees, or
 with both;

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 (b) where the contravention involves
 quantity, lesser than commercial quantity but
 greater than small quantity, with rigorous
 imprisonment for a term which may extend to ten
 years, and with fine which may extend to one
 lakh rupees;

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 (c) where the contravention involves
 commercial quantity, 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 but which may extend
 to two lakh rupees:

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 Provided that the Court may, for reasons to be
 recorded in the judgement, impose a fine
 exceeding two lakh rupees."

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 5. Thus, it appears that now by this amendment
 depending on the quantity of the narcotic drug
 collected, punishments are provided. In the case of
 small quantity, sentence of imprisonment may extend to
 six months or fine or both. In the case of commercial
 quantity, sentence of imprisonment shall not be less
 than 10 years but may extend to 20 years with fine which
 shall not be less than 1 lakh rupees but which may
 extend to 2 lakh rupees. However, if the quantity of
 drug is neither the small quantity nor the commercial
 quantity under the Clause (b) of Section 21, sentence
 may be R.I. for a term which may extend to 10 years

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 with fine which may extend to 1 lakh rupees. Therefore,
 under Section 21(b) maximum sentence of imprisonment of
 10 years and fine of Rs.1 lakh is provided but there is
 no provision for minimum sentence to be awarded. It
 means in cases falling under clause (b) discretion is
 given to the Court to award sentence which may extend to
 imprisonment of 10 years and fine of Rs.1 lakh.

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 6. Section 41 of the N.D.P.S. Amendment Act, 2001
 reads as follows:

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"41. Application of this Act to pending
cases--

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 (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 commission
 of such offence :

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 Provided that nothing in this section shall
 apply to cases pending in appeal.

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 (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 had not come into force."

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 From this it is clear that if the offence was committed
 prior to Amendment Act coming into force, the accused

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 would be liable to be punished under the amended act if

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 under the amended act, sentence prescribed for
 particular offence is less than what it was prior to the
 amendment or at the time of commission of the offence.
 However, this benefit was given only to the case where
 investigation was in progress or the case was pending
 before the Court. Under the proviso, it was declared
 that nothing in the Section 41 would apply to the cases
 pending in the appeal. It means that if the trial was
 already completed and sentence was awarded under the
 N.D.P.S. Act prior to its amendment but the appeal was
 pending, the case should be governed by the provisions
 of the N.D.P.S.Act as they stood prior to the amendment.
 Validity of the proviso to section 41 came in question.

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Madhya Pradesh High Court in Ramesh v. State of Madhya
Pradesh, Writ Petition No.537 of 2003 and Punjab and
Haryana High Court in Ram Singh v. State of Haryana
2002(3) R. CRIMINAL R. (Cri) 728 struck down proviso
 to Section 41 of the amendment act holding that it was
 violative of article 14 of the Constitution of India.
 These two authorities were relied upon in a number of
 matters. In Ramesh @ Kadu Dagdu Medge v. State of
Maharashtra 2004(2) Bombay C.R. (CRIMINAL) 356, this
 Court followed the above referred two authorities from
 Madhya Pradesh and Punjab & Haryana High Courts and held
 that proviso to section 41 is violative of article 14 of

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 the Constitution of India. It was held that when the
 offence was committed prior to the amendment and if the
 appeal is pending after the trial, the accused would be
 entitled to get benefit of the amended provisions of
 Section 21. In view of this legal position, it must be
 held that even though accused had committed the offence
 in the year 1991 and the trial Court convicted him in
 the year 1998, in the present appeal, he may be given
 benefit of amended provisions of Section 21.

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 7. As stated above, the accused was found in
 possession of 13 gms 400 mgs of heroin. In the case of
 heroin small quantity is described as 5 gms and the
 commercial quantity as 250 gms. The accused was found
 in possession of heroin, which was neither the small
 quantity nor the commercial quantity and as such his
 case should be governed by Section 21 clause (b). The
 report from Yervada Central Jail reveals that as on
 31-10-2006 had already undergone imprisonment of 8 years
 one month and 14 days. After that the accused has been
 in jail for a further period of 5 months and 10 days.
 It means that he has actually undergone imprisonment for
 8 years, 6 months and 24 days till this date. Taking
 into consideration the quantity of heroin found with him
 and the fact that in the year 2001 he had suffered from
 gangrene and in the year 2003 his both the legs were

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 amputated and now he is physically handicapped, I find
 that the sentence as already undergone, is sufficient.
 Therefore, the appeal to the extent of quantum of the
 sentence may be allowed.

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 8. Appeal is allowed. Impugned order passed by

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 the trial Court stands modified as follows:

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 . Accused is convicted and sentenced under
 Section 21(b) of the N.D.P.S. Act and sentenced to
 undergo R.I. for 7 years and to pay a fine of
 Rs.20,000/- and in default to undergo R.I. for one year
 and six months. As he has already undergone this much
 sentence, he be set at liberty forthwith if not required
 in any other case.

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 (J.H.Bhatia,J.)

Bhima Baban More v. the State of Maharashtra

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Bhima Baban More v. the State of Maharashtra

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