NURMAHMAD BANNUMIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CHALLENGE in this appeal filed under Section 374 of the Code of Criminal Procedure ('the Code' for short) is to the correctness of the judgment and order dated 31.1.2003 rendered in Special Criminal (NDPS) Case No. 14 of 2000 by the learned Additional Sessions Judge and Presiding Officer, 2nd Fast Track Court, Kheda at Nadiad, by which the appellant ("the accused" for short) has been convicted for commission of the offences punishable under Section 20(b)(ii)of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act, 1985' for short) and sentenced to suffer RI for 10 years and fine of Rs.1 lac, i.d., S.I. for 2 years.

(2.) BRIEFLY stated, the prosecution case as disclosed from the complaint as well as unfolded during trial, is as under:

(3.) MR . N.K.Majmudar, the learned advocate of the accused, at the outset submitted that he does not challenge the order of conviction on merits. However, he challenges the order of sentence. According to him, the trial Court has imposed maximum sentence of 10 years for commission of the offence punishable under Section 20(b)(ii) of the NDPS Act, 1985. According to him, the offence was committed on 15.12.1998 and the judgment was delivered on 31.3.2003. Therefore, the accused ought to have been sentenced under the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 ("Amended NDPS Act, 2001" for short), which has come into force on 2.10.2001, whereby the benefit of the rationalized sentencing structure has been given to the accused. As per the Amended NDPS Act, 2001, the accused ought to have been sentenced for commission of the offence for possessing narcotic drug weighing less than commercial quantity, where the maximum punishment is RI for 10 years. The accused is in jail for more than 6 years and, therefore, benefit of the rationalized sentencing structure under the Amended NDPS Act, 2001 should be given to the accused and the period of imprisonment undergone by the accused may be treated as substantive sentence. Therefore, he urged that the sentence may be reduced to the aforesaid extent by allowing this appeal qua sentence only.