Swantanter Kumar, J.@mdashThis appeal is directed against the judgment of conviction and order of sentence both dated 22.11.1990 vide which the learned Additional Sessions Judge, Faridbad held that the accused was guilty of an offence u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as the Act, and the recoveries effected contained 45.9% herein and punished the accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac and in default thereof to further undergo rigorous imprisonment for two years. The contention raised on behalf of the appellant primarily is there was no compliance of the provisions of Section 50 of the Act. There was also violation of Section 41(1) of the Act. However, these contentions were half-heatedly advanced by learned counsel for the appellant. His main contention was that in view of the amended provisions of the Act, the quantity allegedly recovered from the accused is a small quantity and, thus, the punishment imposed is not commensurate to the provisions of law.
2. In order to examine the merits of the contentions raised before this Court and to avoid un-necessary repetition, reference to the prosecution case as noticed by the learned trial Court would be appropriate:-
"As per the prosecution story, on 13.8.1989 at about 6 p.m. Mahinder Singh ASI alongwith HC Rura Ram and Constable Ashok Kumar were on patrolling duty near Dharam Kanta Neelam Bata Road. There they met one Brahm Singh and he started taking with Brahm Singh. In the mean time, a person was seen coming from the Hanuman Mandir side on foot. On seeing the police party, he turned back and started moving fastly. On suspicion, he was apprehended. On enquiry, he told his name as Bhim Sain. His search was conducted as per the rules and on search 2 gms. smack, which was wrapped in a polythene paper, was recovered from his left side pocket of the shirt. The recovered smack was put in a match box and was sealed with the seal of ''MS'' and the same was taken into possession vide memo. Ex. PC attested by the PWs, Ruka Ex. PE was sent to the Police Station, Kotwali, Faridabad for registration of the case and on the basis of that formal FIR Ex. PB was recovered. The seal after use was handed over to Dharam Singh PW. The accused was arrested and on completion of the investigation, the challan was filed in the court."
3. In order to prove its case the prosecution had examined five witnesses, namely, PW1 ASI Madan Lal, PW 2 Brahm Singh, PW 3 Mohinder Singh ASI, PW4 and PW 5 constable Bai Krishan and Vijay Singh. Ex. PC memo of recovery, site plan Ex. PD, ruqqa Ex. PE was also proved on record. In furtherance to ruqqa Ex. PE which was sent to the police station, a formal FIR No. 367 dated 13.8.1989 Ex. PB was registered in the police station. In his statement u/s 313 of Criminal Procedure Code the accuse had pleaded innocence and false implication in the case, However, no defence was led by the accused. The trial Court held that prosecution had been able to prove its case beyond any reasonable doubt and consequently found the accused guilty and convicted and sentenced him as afore-mentioned.
4. The first contention raised on behalf of the learned counsel for the appellant is without any merit. The investigating officer PW1 in his statement before the Court stated that before searching the accused Bhim Sain, he had given him an offer whether he would like to be searched by him or by a gazetted officer. As no objection was raised by the accused he was searched in presence of the independent witnesses as well as other police officials, the recovery of two grams of smack was effected from the accused. The substance recovered was sent for chemical analysis and the report Ex. PA shows that the substance contained 45.9% herein which was in contravention to the provisions of Section 21 of the Act. u/s 21(a) any person who is in possession, deals or uses any manufactured drug or any preparation containing any manufactured drug is liable to punishment provided under the Act. u/s 2(xi) defines the manufactured drugs and all opium derivatives are manufactured drugs. In view of the evidence on record, I am unable to find any error in the order of conviction passed by the learned trial Court.
5. However, there is merit in the contention raised on behalf of the appellant in regard to quantum of punishment. It has been held by a Division Bench of this Court in the case of Ram Singh v. State of Haryana, 2002(3) R C R 728 that the accused in pending appeals arising under the Act are entitled to the benefits of the amended provisions. Under entry N. 56 of Schedule 1, 5 grams or less quantity of Heroin is termed as small quantity. Possession of small quantity u/s 21(a) of the Act is punishable with rigorous imprisonment for a term which may extend to six months or a fine which may extend of Rs. 10,000/- or both. In view of the amended provisions the benefit of which the accused appellant is entitled to, at best, the above punishment alone could be inflicted upon the accused. The quantity recovered is even smaller than the small quantity defined and as such it will be appropriate in the facts and circumstances of the case and the fact that the accused belongs to a poor family, is 21 years of age and has faced rigours of the prosecution case for the last about 14 years, as argued. I am of the considered view that the ends of justice would be satisfied if rigorous imprisonment of only six months is imposed upon the appellant for being held guilty u/s 21(a) of the Act. Consequently, the judgment of the learned trial Court is modified to the extent afore-noticed and accordingly, the appeal is disposed of. If the accused has undergone the sentence above provided and is not required in any other case, he shall be set at liberty.
