CASE NO.: Appeal (crl.) 1244-1245 of 2003 PETITIONER: STATE OF DELHI RESPONDENT: JITTI DATE OF JUDGMENT: 12/10/2007 BENCH: C.K. THAKKER & ALTAMAS KABIR JUDGMENT:
J U D G M E N T
C.K. THAKKER, J.
1. Both these appeals are filed by the
State of Delhi against judgment and order
passed by the High Court of Delhi in Criminal
Appeal Nos. 111 and 47 of 1999. By the said
order, the High Court confirmed an order of
conviction recorded by the Additional Sessions
Judge, Delhi in Sessions Case No. 98 of 1996
dated October 14/October 21, 1998, but
restricted the sentence to the period already
undergone by the convict.
2. Short facts of the case are that Didar
Singh, Circle Inspector along with Constable
Ram Karan was on patrolling duty on September
07, 1996. At about 8.15 p.m., they reached
near car parking at old Lajpat Rai Market.
There they received secret information that two
persons aged about 35-40 years were likely to
come from the side of Bagichi Angoori Bagh and
they were possessing jute bags containing poppy
straw powder. They would catch a bus going to
Punjab. On receipt of such information, SI
Didar Singh organized a raid party along with
police officials and 4/5 persons from general
public. At about 8.35 p.m., two persons were
apprehended. Both of them were carrying two
jute bags on their heads. On inquiry, one of
the accused disclosed his name as Jitti and the
other gave his name as Vaishnu Dass, resident
of District Hoshiarpur in Punjab. The secret
information was then disclosed to both of them
and they were given option to be searched in
presence of Gazetted Officer or Magistrate.
They, however, declined the offer. Thereafter
the search was carried out. From accused Jitti,
22 Kgs. of poppy straw powder was found whereas
from other jute bag 23 Kgs. of poppy straw
powder was recovered. Thus in all, 45 Kgs of
poppy straw powder was found. Samples were
taken from each jute bag and placed in two
bags. The remaining poppy straw powder was kept
in the same jute bags again. Usual seals were
affixed. Samples were then sent to Central
Forensic Science Laboratory. The result
disclosed that samples were found to contain
poppy straw powder.
3. After usual investigation, charges
were framed against the accused under Section
18 of the Narcotics Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to
as the Act). The accused pleaded not guilty
to the charges levelled against him and claimed
to be tried.
4. The Additional Sessions Judge, Delhi
after examining the evidence of witnesses
produced by the prosecution, by an order of
conviction recorded on October 14, 1998 held
that it was proved beyond reasonable doubt that
the accused was guilty of an offence punishable
under Section 18 of the Act. The accused was
thereafter heard on the quantum of sentence and
finally on October 21, 1998 the Court imposed
punishment on the convict. The operative part
of the order reads thus;
The convict has been convicted
under Section 18 of the NDPS Act. The
offence under Section 18 of the NDPS
Act is punishable with rigorous
punishment for a term which shall not
be less than 10 years and shall also
be liable to fine which shall not be
less than Rs.1 lakh. As per the
provisions of Section 18 of the NDPS
Act, the minimum sentence is 10 years
RI and fine of Rs.1 lakh. The Court
has no discretion in the matter. Hence
the convict is sentenced with RI for
10 years and to pay a fine of Rs.1
lakh. In default of payment of fine to
undergo RI for 2 years. File be
consigned to record room.
5. Being aggrieved by the order passed by
the trial Court, the accused preferred appeals
before the High Court of Delhi. As observed by
the High Court, the counsel for the accused was
not in a position to challenge the order of
conviction and confined his arguments only on
the question of sentence. It was submitted
that the accused was found in possession of
45 Kgs of poppy husk/powder. Relying on the
provisions of Section 41 of the Act as amended
by the Narcotics Drugs and Psychotropic
Substances Act, 2001 [Act 9 of 2001], it was
submitted that as per the amended provision,
commercial quantity in respect of poppy husk
was 50 Kgs. The accused was found to be in
possession of 45 Kgs. It was, therefore,
submitted that when the quantity was not
commercial quantity, rigorous imprisonment
for ten years was not the minimum punishment,
but the maximum punishment. It was only in
respect of commercial quantity, the minimum
punishment was for ten years. It was submitted
that the accused had already undergone 5= years
in jail and he should be released by passing an
appropriate order that the sentence undergone
by him was sufficient.
6. Though it was contended by the learned
counsel for the State that the said provision
(Section 41 as amended by Act 9 of 2001) would
not apply to cases pending in appeals, the High
Court held that a view was taken in Ginni Devi
v. State, that the amendment would also apply
to cases pending in appeal. Accordingly, the
Court partly allowed the appeal, confirmed the
conviction but reduced the sentence of
imprisonment of the accused to imprisonment
already undergone and directed to set him at
liberty forthwith if not wanted in any other
case. The accused was, therefore, set at
liberty pursuant to the above order of the High
Court.
7. Being aggrieved by the order passed by
the High Court, the State approached this
Court.
8. On March 3, 2003, when the matter was
placed for admission hearing, it was found that
there was delay of 209 days in filing the
special leave petition in this Court. Notice
was, therefore, issued for condonation of delay
as also on special leave petitions. Interim
stay of the operation of the judgment was also
granted and bailable warrants were issued.
Since the warrants were not served, non-
bailable warrants were issued on July 7, 2003.
Direction was also issued to the Commissioner
of Police, Delhi to execute them. On September
8, 2003, when the matter came up before this
Court, it was noted by the Court that though
non-bailable warrants were issued, they could
not be executed. No report of the Commissioner
of Police in regard to the steps taken was
filed. A direction was, therefore, issued to
the Commissioner of Police, Delhi to file
report within two days as to compliance of
earlier order. Actions were thereafter taken
to locate the respondent and finally warrants
were executed. On September 26, 2003, delay was
condoned, leave was granted. Since the
respondent was arrested, meanwhile, he was
ordered to be released on bail on his
furnishing self bond of Rs.1,00,000/- (rupees
one lakh) with two sureties each for the like
amount to the satisfaction of the trial Court.
It appears that the respondent could not
furnish surety as per the order of this Court
and therefore could not be released on bail. A
prayer was, therefore, made on his behalf to
hear the matter finally.
9. We have heard the learned counsel for
the parties.
10. It was submitted by the learned
counsel for the State that the High Court was
not right in applying Section 41 of the Act as
amended in 2001 to the present case. It was
urged that proviso to sub-section (1) of
Section 41 is explicitly clear and expressly
states that it will not apply to cases pending
in appeal. Section 41, as amended by Act 9 of
2001 reads thus;
41. Application of this Act to
pending cases.-(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:
Provided that nothing in this section
shall apply to cases pending in
appeal.
(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 has not come
into force.
11. He, therefore, submitted that the
appeal deserves to be allowed.
12. Learned amicus curiae for the
respondent-accused submitted that the High
Court was right in passing the impugned order.
The High Court had also taken a similar view in
other cases. It was alternatively urged that on
the facts and in the circumstances of the case,
the respondent had undergone about ten years of
rigorous imprisonment. Therefore, the appeal
may be disposed of leaving the question open.
13. We have given our anxious
consideration to the contentions raised by the
parties. From the record, however, it appears
that the incident took place on September 7,
1996 and on the same day, the respondent was
arrested. It is stated by the respondent in
Criminal Miscellaneous Petition Nos. 10614-
10615 of 2007 filed in this Court with the
affidavit that he was in jail from September 7,
1996 from the day he was arrested till the
final order was passed by the High Court of
Delhi on April 2, 2002. Thus, he was in jail
for more than 5= years. The said fact is also
noted by the High Court while disposing the
appeal. It was further stated in the affidavit
that after the special leave petition was filed
by the State in this Court, he was again
arrested. From the two affidavits filed by V.
Renganathan, Deputy Commissioner of Police
(Headquarters), I.P. Estate, New Delhi dated
September 10, 2003 and September 24, 2003, it
appears that the respondent was arrested on
September 23, 2003. This Court, no doubt,
passed an order releasing him on bail. In view
of the fact, however, that the respondent could
not comply with the conditions of bail, he was
not released on bail and till today, he is in
jail. Thus he is in jail since about ten years.
14. Taking into account the totality of
facts and circumstances and factual scenario,
namely, that the respondent-accused is in jail
since about ten years, the High Court partly
allowed his appeal and ordered to release him,
the present appeal challenging the said
decision is filed by the State, the respondent
could not be released on bail as he was unable
to furnish sureties, in our opinion, ends of
justice would be met if without expressing
final opinion on the question of law raised
before us, we dispose of the appeals observing
that since the respondent had undergone
sentence of almost ten years, he should be
set at liberty unless he is required in any
other offence. As and when the question raised
in these appeals will come up for consideration
in an appropriate case, it will be decided on
its own merits.
15. In view of the order passed above, the
appeals as well as Criminal Miscellaneous
Petition Nos. 10614-10615 of 2007 stand
disposed of.