JUDGMENT
J.M. Malik, J.
1. The appellant was convicted to undergo Rigorous Imprisonment for a period of ten years and to pay a fine in the sum of Rs. 1,00,000/- in default Rigorous Imprisonment for one year for possessing 820 grams of Charas on 31.08.1997 under Section 20 NDPS Act. Aggrieved by that order, the appellant has filed the instant appeal before this Court.
2. The learned defense counsel made only one short submission. He explained that the appellant is languishing in the Jail for the last 9-1/2 years. He drew the attention of the Court towards the Narcotic Drugs and Psychotropic Substances Act (Amendment) Act, 2001 which according to the learned Counsel for the appellant has brought in sea changes in the NDPS Act, 1985. He invited the attention of the Court towards table [see Sub-clause (viia) and (xxiiia) of Section 2 of the Act] which reads:
——————————————————————————————
Sl. Name of Narcotic Drug Other Non Chemical Name Small Quantity Commercial
No. and Psychotropic propriety (in gm.) (in gm./kg.)
Substance name
(International non
-proprietory
Name (INN)
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1 2 3 4 5 6
23. Cannabis and CHARAS, EXTRACTS and 100 1 Kg.
cannabis resin HASHISH TINCTIRES OF
CANNABIS
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3. It, therefore, means that the accused was in possession of lesser quantity than commercial quantity but greater than small quantity. Section 20 is reproduced as follows:
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 license granted there under:
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 Clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to Sub-clause (b), —
(A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousands rupees, or with both;
(B) and 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;
(C) and 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 and which may extend to two lakh rupees:
Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]
4. From a bare reading of the above said provision of law, it is crystal clear that when the quantity is more than 100 grams and less than 1 kilogram, this is the discretion of the Court to award any sentence to the accused up to ten years. The law does not prescribes any minimum sentence. However, the said amendment came after the accused was arrested. In a recent authority reported in State through CBI v. Gian Singh 1999 SCC (Cri) 1512, it was held,
32. What is the jurisprudential philosophy involved in the second limb of Clause (1) of Article 20 of the Constitution?
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 commission of the offence.
It is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribes, and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation would downgrade the harshness of the sentence for the same offence, it would be a salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence.
In the above cited case, the accused was sentenced to death under TADA Act. By virture of amendment, the sentence was converted for life in place of death.
5. I have perused the nominal roll of the accused dated 19.01.2004 which shows that till then the accused had undergone sentence up to 06 years 04 months and 15 days. It clearly reveals that the accused has already undergone actual incarceration for more than nine years. I am of the considered view that the sentence undergone by him is sufficient to meet the ends of justice. He is accordingly sentenced to the imprisonment already undergone and to pay a fine of Rs. 1,000/- failing which he shall further undergo Rigorous Imprisonment for one week. The sentence already passed by learned ADJ is accordingly modified.
Copies of this order be sent to the Jail Superintendent, Tihar Jail, Delhi, forthwith, with the directions to release the accused/appellant after the expiry of one week i.e. on 12.10.2006, if no fine is deposited and if he is not required in any other case as well as to the accused through Jail Superintendent. Trial Court record along with a copy of this order be sent to the Trial Court forthwith.