Pappu alias Moochh alias Anees Vs State of Madhya Pradesh

S.P. Khare, J.

Appellant Pappu alias Moochh alias Anees has been convicted u/s 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as ''the Act'') and sentenced to rigorous imprisonment for ten years and to a fine of Rs. 1,00,000/- for being found in unlawful possession of 100 grams of Charas,

None has appeared on behalf of the appellant at the time of hearing of this appeal. The learned Counsel for the State has been heard. The appeal has to be decided on merits as per decision of the Supreme Court in Bani Singh and ohters Vs. State of U.P., .

After scrutinising the evidence on record this Court is of the opinion that the conviction of the appellant for the aforesaid offence is well founded. V.D. Mishra (P.W. 8) is the Assistant Sub-Inspector of Police and he was the investigating officer in this case. He has deposed that on 14-4-2000 he received the information that accused Pappu alias Moochh alias Anees is in possession of Charas in Jogipura. He recorded this information in Rojnam-cha Sanha (Ex. P-21) and in the Panchnama (Ex. P-19). He transmitted this information to the C.S.P. as per Ex. P-18. He proceeded to the spot with the two witnesses Saiyed Shariq (P.W. 2) and Naim (P.W. 5). He found the accused there. He apprised him of his right to be searched in presence of a Magistrate or a Gazetted Officer as per Ex. P-3 but the accused opted to be searched by him. On search he found that the accused was in possession of Charas which was 100 grams. He prepared seizure memo (Ex. P-11). The two Panch witnesses have turned hostile. Samples of the seized commodity were prepared and sealed. These were sent to the Forensic Science Laboratory and as per report (Ex. P-29) it was found that this commodity was Charas. The investigating officer informed his senior police officers about the search and seizure. Thus, there has been compliance with the procedural provisions of the Act and the conviction of the appellant for the aforesaid offence is unassailable.

The record shows that the appellant was in jail from 14-4-2000 to 16-2-2001 as an under-trial prisoner and he was in jail after conviction also. He has been directed to be released on bail by order dated 7-8-2003 of this Court.

The Act has been amended in 2001 with effect from 2-10-2001. The amended provisions have been considered by this Court in Mahesh Chandra Nagar Vs. State of M.P., .There is rationalisation of quantum of sentence. There are three categories of cases for determining the question of punishment depending upon the quantity of the narcotic drug or psychotropic substance which is involved. The severity of punishment would depend upon that quantity. The benefit of rationalisation of sentence structure has been extended to those cases which were "pending before the Courts" on the date of amendment. There was a proviso to Section 41 of Amending Act. It reads "Provided that nothing in this section shall apply to cases pending in appeal". The Constitutional validity of this proviso has been examined by a Division Bench of this Court in Ramesh Vs. State of Madhya Pradesh and Another, and it has been held that "appeal being rehearing of the entire case and if pending before the Court would be entitled to the benefit of Amending Act No. 9 of 2001. As mentioned above the exclusion of benefit of liberalised provisions of the Act as substituted by Act No. 9 of 2001 to cases pending in appeal is without any intelligible differentia and without having any reasonable nexus with the object to be achieved, therefore, we hereby strike down the proviso and issue a writ in the nature of mandamus directing that the proviso to Sub-section (1) of Section 41 of Act No. 9 of 2001 "provided that nothing in the section shall apply to the cases pending in appeal" shall not be given effect to being violative of Article 14 of the Constitution of India being a classification without any reasonable nexus with the object to be achieved. Consequently, it is held that Act No. 9 of 2001 shall be applicable to all cases pending before the Courts or under investigation at the commencement of the said Act and shall be disposed of in accordance with the provisions of the Principal Act as amended by Act No. 9 of 2001 irrespective of the fact whether such cases are pending in appeal or before the Trial Court. Applying the science of interpretation and taking recourse to the art of acceptation, we are inclined to interpret that the main provision shall apply to the appeals because the language employed in the provision is ''all cases pending before the Court''. When the word Court has been sued there is no reason or justification to exclude the Appellate Court. We may reiterate that once the proviso has been struck down being unconstitutional, the main provision, propio vigore, would apply to appeals".

In view of the law laid down in the Division Bench case referred above, the question of sentence in the present case is to be examined. As discussed above the appellant was in possession of 100 grams of Charas. This was a small quantity as per notification dated 19-10-2001 of the Central Government. Therefore, the appellant is punishable u/s 20(b)(ii)(a) of the Act with rigorous imprisonment for a term which may extend to six months or with fine which may extend to rupees ten thousand or with both. The appellant has already served out the sentence more than that which is prescribed by law. Therefore, the appellant is now directed to be released forthwith if he is not required in any other case.