UNION OF INDIA Vs. FARDEEN FEROZ KHAN

JUDGEMENT

(1.) The prosecution has challenged the order dated 24th January, 2008 passed by the Special Judge, NDPS, City Civil & Sessions Court, Greater Mumbai, allowing Misc. Application No. 419 of 2007 filed by the original accused No. 2 to discharge him from Section 21(c) read with Section 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for short "NDPS Act").

(2.) Prosecution case, in brief, is that on 5.5.2001, the Intelligence Officer of the Narcotics Control Bureau of Mumbai Zonal Unit got information that one Nasir was going to deliver cocaine of unspecified quantity to one person near HSBC ATM Centre, Saroj Building, Kapol Society, V.L. Mehta Road, Juhu, Mumbai. Accordingly, after completing necessary formalities, the officers of NCB kept a surveillance around the ATM Centre of HSBC Bank. At around 1.20 hrs. accused No. 1 Nasir alighted from a taxi and waited for a while on the footpath opposite the ATM Centre. At about 1.40 hrs, a silver grey Opel Astra Car bearing No. MH-02-N-4043 came and stopped near the ATM Centre. Accused No. 1 Nasir went to that car and sat beside the driver's seat, while the driver, who is accused No. 2, was noticed having inserted an ATM Card into the designated slot of the ATM to withdraw money. One lady officer of NCB went inside the Guard Room while another officer approached the car. On enquiry, accused No. 1 Nasir handed over the Intelligence Officer the goods which contained 11 vials containing cocaine. The weight of cocaine was found to be 9 grams. Accused No. 1 Nasir informed the Intelligence Officer that he was to sell one gram cocaine to accused No. 2. As the card of accused No. 2 was stuck in the ATM Card, he could not withdraw the money. When he came out, he was also caught and he also admitted that he was to purchase one gram of cocaine from accused No. 1. After completing all the formalities as per law, vials containing cocaine were seized and sealed under a panchnama. The statements of accused Nos. 1 and 2 were recorded under Section 67 of the NDPS Act. Accused No. 1 revealed that he had purchased 15 grams cocaine from accused No. 3 and out of that he had sold or disposed of 6 grams and he was in possession of 9 grams of cocaine, when he was caught by the Intelligence Officer. After completing investigation, the Intelligence Officer filed complaint on 2.8.2001 under Section 29 read with Section 8(c) and Section 21 of the NDPS Act against all the three accused persons.

(3.) NDPS Act, 1985 was substantially amended by the NDPS Amendment Act, 2001, the purpose of which was mainly to speed up the trial and to rationalize the provisions pertaining bail and sentences Before the amendment, Section 21 provided for punishment which would be not less than ten years imprisonment, but which could extend to 20 years and maximum fine of Rs. 1 lakh. However, by the after amendment, the Legislature made three categories of persons who manufactures, possesses, sells, purchases, transports, any manufactured drug etc. in (i) small quantity, (ii) commercial quantity and (iii) quantity which is less than commercial quantity, but more than small quantity and different sentences were provided for the same. Section 41 of the Amendment Act provided that the amended provisions shall be applicable to all the cases which were under investigation or which were at the stage of trial, but the amended provisions would not be applicable to the cases, where the trial was concluded and appeals were pending.