High Court Punjab-Haryana High Court

Ashok Paswan vs State Of Punjab on 1 April, 2009

Punjab-Haryana High Court
Ashok Paswan vs State Of Punjab on 1 April, 2009
Criminal Appeal No. 110-SB of 2002                                  1




     In the High Court of Punjab and Haryana, at Chandigarh.


                  Criminal Appeal No. 110-SB of 2002

                      Date of Decision: 1.4.2009


Ashok Paswan
                                                            ...Appellant
                                Versus
State of Punjab
                                                         ...Respondent


CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.


Present: Mr. J.B.S. Gill, Advocate
         for the appellant.

         Mr. Mehardeep Singh, Assistant Advocate
         General, Punjab, for the State.


Kanwaljit Singh Ahluwalia, J. (Oral)

The present appeal has been filed by Ashok Paswan son of

Rajinder Paswan. He was sentenced by the Court of Special Judge,

Hoshiarpur, to undergo ten years rigorous imprisonment and to pay a

fine of Rs.1,00,000/-, in default whereof to further undergo six months

rigorous imprisonment. The appellant was found in possession of 40

Kgs. of poppy husk.

The case of prosecution is that Atma Singh, Sub Inspector,

along with his companion police officials, on 17.4.2001 was on patrol

duty. Suspected persons were being checked. The police party when

reached near katcha path leading towards the filed in the area of Urmur,

appellant Ashok Pawan was sighted by him coming from the opposite
Criminal Appeal No. 110-SB of 2002 2

side and he was carrying a bag on his head. On suspicion, he was

apprehended by Atma Singh, Sub Inspector. At that time, Balwant Singh

came there on a scooter and he was joined by a police party.

Suspecting that appellant is carrying some contraband article, an offer

was given to him to get himself searched from a Magistrate or a

Gazetted Officer. The appellant disclosed that there was a poppy husk

in the bag and he replied in pursuance of the offer made that he is

willing to get himself searched from a Gazetted Officer. A wireless

message was sent and the Deputy Superintendent of Police was

requested to come at the spot. Necessary procedure for search and

seizure was followed.

At this stage, Mr. J.B.S. Gill, Advocate, at the outset, has

stated that he will not be assailing conviction of the appellant but shall

be making a legal submission regarding quantum of sentence. It is

stated that an amendment was made to the Act on 2.10.2001 by the

amending Act No.9 of 2001, which came into force w.e.f. 2.10.2001.

Small quantity and commercial quantity have been defined and table

has been added, to Sub Clause vii(a) and xxiii(a) of Section 2 of the Act,

as per entry No.110, poppy straw, small quantity defined is 1 Kg. and

commercial quantity has been defined as 50 Kgs. Mr. J.B.S.Gill has

further stated that from the appellant, 40 Kgs. of poppy husk has been

recovered, therefore, same is to be held as non-commercial quantity.

A reliance has been placed on judgment of Hon’ble the Apex

Court in Basheer @ N.P. Basheer v. State of Kerala 2004(1) Recent

Criminal Reports 1008. Para 23 of Basheer @ N.P. Basheer’s case

(supra) read as under:-

Criminal Appeal No. 110-SB of 2002 3

“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. Hence, we are unable to accept the
Criminal Appeal No. 110-SB of 2002 4

contention that the proviso to Section 41 of the

amending Act is hit by Article 14″.

It will be necessary to examine this contention raised in the

facts of the present case.

In the present case, recovery was effected on 17.4.2001. The

judgment of conviction and sentence was pronounced on 25.10.2001

The amendment has been made on 2.10.2001. Appeal in the present

case was fled on 17.11.2001. Therefore, the appellant will be entitled to

the benefit of the amendment as per ratio of judgment of Hon’ble the

Apex Court rendered in Basheer @ N.P. Basheer’s case (supra).

Therefore, the contraband recovered being non-commercial on the

quantum of sentence, appellant is to be dealt with under Section 15(b) of

the Act. Section 15(a) defines punishment for small quantity. Section 15

(b) defines punishment for quantity lesser than commercial quantity but

greater than small quantity. Section 15(b) read as under:-

“15(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 extent to one lakh rupees”.

Therefore, the maximum punishment which can be awarded

can extend to ten years. Therefore, appellant can be sentenced to

imprisonment less than ten years also.

It has been urged before me that in the present case the

appellant was arrested on 17.4.2001 and he has suffered protracted

trial for eight years.

Criminal Appeal No. 110-SB of 2002 5

Therefore, sentence awarded upon the appellant for ten years

is set aside. However, the appellant under Section 15(b) is sentenced to

rigorous imprisonment for two & a half years and a fine of Rs.10,000/-, in

default of payment of fine, the appellant shall further undergo three

months rigorous imprisonment.

With the observations made above, the present petition is

disposed off.

(Kanwaljit Singh Ahluwalia)
Judge
April 1, 2009
“DK”