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 4contention 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”