2004 ALL MR (Cri) 2180
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.S. PARKAR, J.

Chandrakant Khare Vs. State Of Maharashtra

Criminal Appeal No.637 of 1998

30th September, 2003

Petitioner Counsel: ANIL LALLA, Lalla & Lalla
Respondent Counsel: PRAKASH THAKUR, R. Y. MIRZA

Narcotic Drugs and Psychotropic Substances Act (1985), Ss.8(c), 21(b) (Amendment by 2001 Act) - Possession of heroin - Conviction - Contention that heroin seized from appellant being less then commercial quantity, under provision of amended Act, minimum sentence laid down under old Act will not be applicable - Held, heroin seized from appellant was more than small quantity but was lesser than commercial quantity to which provision of S.21(b) of amended Act will apply - By applying this section, sentence of appellant in this case can be reduced to already undergone. (Paras 6, 7, 8)

Cases Cited:
Ramesh Vs. State of M.P., W.P.No.537 of 2003 dt: 25-4-2003 [Para 7]
Diakite Ibrahime Adame Vs. J. L. Pandey, Cri. Appeal No.586 of 1999 dt: 16-9-2003 [Para 7]


JUDGMENT

S. S. PARKAR, J.:- This appeal is filed challenging the judgment and order dated 6-7-1998 delivered by the Special Judge, Greater Bombay in N.D.P.S. Special Case No.34 of 1998 convicting and sentencing the appellant under the provisions of the N.D.P.S. Act.

2. Briefly stated, the prosecution case is as follows :-

P.W.1 Abdul Shaikh, the Intelligence Officer, NCB received information on 27-10-1997 that one person staying in Room No.110 of Garib Nawaz Guest House, Palla Galli, Dongri was possessing 3.5 kgs. of heroin and that the said contraband was likely to be removed for delivering it to the customers. On receiving the intelligence the same was reduced to writing which is produced on record at Exh. 10 and the Superior Officer Superintendent of NCB P.W. 2 Mathew was informed about it and the raid was arranged by calling two panchas. When the raiding party went to the said room appellant was found in the said room. He was told about the information received by the raiding party and that they wanted to take search. The appellant was apprised of his right under section 50 of the Act which he declined. On search of the room one red coloured bag was found below the double-bed. Inside the bag there were four polythene packets containing brown coloured powder. When tested on field testing kit, it answered positively for heroin. All the four packets were emptied in one big polythene bag which weighed 3.5 kgs. Three samples of 5 gms., each were drawn separately in small polythene pouches and were closed and sealed giving marks as "C-1", "C-2" and "C-3". The seal of NCB Office was put thereon. The remaining quantity was also kept in one big polythene bag and sealed. Panchanama of seizure was drawn. Summons was issued to the accused under the provisions N.D.P.S. Act. The accused gave his statements which are produced on record at Exhs.14 and 19. In the said statements he admitted the possession of the contraband. Further formalities were completed during the course of investigation including sending of report under section 57 of the N.D.P.S. Act. Three samples were sent to three different laboratories and their reports were obtained. After completion of the investigation charge-sheet came to be filed in the Court of Special Judge.

3. The Special Judge framed charges against the appellant for possession as well as for conspiracy under section 29 read with sections 8(c) and 21 of the N.D.P.S. Act and under section 21 read with section 8(c) of the N.D.P.S. Act to which appellant pleaded not guilty. On behalf of the prosecution five witnesses were examined. P.W.1 is Abdul Shaikh, the Intelligence Officer who had received information and had made search, seizure and arrest and investigated the case and filed charge-sheet. P.W.2 is Chethirakunnil Mathew, who was the Superintendent of NCB, Bombay, P.W.3 is panch Abubakar Siddiqui. P.W.4 is another Intelligence Officer Jitendra Dubey who had taken the sample to the office of Dy. C.C. P.W.5 is Swaminathan Chatiyar, the Manager of the Garib Nawaz Guest House who gave evidence about the stay of the appellant in the said guest house. The defence of the accused was of denial.

4. After considering the entire evidence on record the learned Special Judge by his judgment and order dated 6-7-1998 convicted the appellant for offence under section 29 read with sections 8(c) and 21 of the N.D.P.S. Act and sentenced him to RI for 10 years and to pay a fine of Rs.1 lakh in default RI for three months. The appellant was also convicted for offence under section 21 read with section 8(c) of the N.D.P.S. Act and sentenced RI for 10 years and to pay a fine of Rs.1 lakh in default RI for three months. The said judgment and order of conviction is impugned in this appeal.

5. After taking me through the evidence of prosecution witnesses and the documentary evidence, Mr. Lalla did not challenge the order of conviction. He, however, submitted that out of the three reports obtained from three laboratories, one laboratory has reported that the sample contained 0.6% of heroin in the sample of the brown powder tested by the laboratory which would mean that the appellant was found in possession of 21 gms. of heroin which is 0.6% of 3.5 kgs. of brown powder seized form the appellant, which is less than commercial quantity and under the provisions of amended Act the minimum sentence laid down under the old Act will not be applicable. He, therefore, submitted that the sentence of the appellant who is in custody for a period of 5 years and 11 months may be reduced to already undergone by applying provisions of section 21(b) of the amended Act.

6. The facts, as narrated above, are not in dispute. The prosecution agency had sent one sample to the laboratory of Dy. C.C. at Ballard Estate, Mumbai, another sample was sent to the Forensic Science Laboratory at Kalina, Mumbai and the third sample was sent to Central Revenue Control Laboratory at New Delhi. As per the report Exh.21 of Dy. C.C. the sample was found to contain presence of heroin without giving the percentage. As per the report Exh.22 of Forensic Science Laboratory, Kalina, Mumbai heroin was detected in the sample. The Central Revenue Control Laboratory, New Delhi in its report Exh.23 had mentioned that sample contained 0.6% of heroin. If we go by percentage of heroin mentioned in the last report of Central Revenue Control Laboratory, New Delhi, out of 3.5 kgs. of brown powder seized from the appellant the heroin was only 21 gms. Under the Amended Act the small quantity of heroin is 5 gms. and the commercial quantity is stated to be 250 gms. and above. Thus, the heroin seized from the appellant was more than small quantity but was lesser than the commercial quantity to which the provisions of section 21(b) of the Amended Act would be applicable. Under the said provision if the contravention involves quantity lesser than commercial quantity but greater than small quantity the accused is liable to be punished with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. The said provision prescribed only maximum sentence which could be awarded in such cases without prescribing the minimum sentence as under the old Act.

7. The question, however, is when the amendment came into effect from 2nd October, 2001 and the offence in this case having been committed on 27-10-1998 and the punishment awarded to the appellant was on 6-7-1998, whether the provisions of the Amended Act would be applicable. Section 41(1) of the Amendment Act of 2001 makes applicable the provisions of the Amended Act to the cases which were pending investigation and trial on the date of the commencement of the Amended Act which is 2-10-2001. The proviso to the said section expressly bars the application of the amended provisions to cases pending in appeal like the present case. However, the Madhya Pradesh High Court by its decision dated 25-4-2003 in the case of (Ramesh Vs. State of M.P.), delivered in Writ Petition No.537 of 2003 had struck down the proviso to section 41 of the Act as being arbitrary and ultra vires Article 14 of the Constitution of India. In that writ petition the constitutional validity of the said proviso was challenged. As the proviso itself is struck down the bar created by the proviso for the applicability of the amended provisions to the pending appeals is taken away. I had occasion to consider this aspect in my judgment dated 16-9-2003 in Criminal Appeal No.586 of 1999 in the case of (Diakite Ibrahime Adame Vs. J. L. Pandey & another), and other decisions. Similar view has been taken by the High Court which is referred to by me in my aforesaid judgment. In view of the above, the provisions of section 21(b) of the Amended Act can be applied to this case.

8. The appellant herein was arrested on 27-10-1997 and since then he is custody i. e. for a period of 5 years and 11 months. By applying section 21(b)of the Amended Act, the sentence of the appellant in this case can be reduced to already undergone

9. In the result, the appeal is partly allowed. The order of conviction recorded against the appellant on both the counts is confirmed. However, the sentences on both the counts are reduced as follows :-

The sentence for offence under section 29 read with sections 8(c) and 21 of the N.D.P.S. Act is reduced from RI for ten years to RI for five and half years and the fine amount is reduced from Rs.1 lakh to Rs.25,000/- in default RI for two and half months.

The sentence for offence under section 21 read with section 8(c) of the N.D.P.S. Act is reduced from RI for ten years to RI for five and half years and the fine amount is reduced from Rs.1 lakh to Rs.30,000/- in default RI for three months.

Appeal partly allowed.