BHUPENDRA SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) ACCUSED-appellant Bhupendra Singh preferred this criminal appeal under Section 374 of the Code of Criminal Procedure, wherein he has challenged the order of his conviction and sentence dated 19. 09. 2002 passed by the learned Sessions Judge, Tonk in Sessions Case No. 61/2001, whereby he was convicted and sentenced under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter shall be referred to as 'the N. D. P. S. Act') to ten years rigorous imprisonment and a fine of Rs. 1,00,000/- (Rupees one lac); in default of payment of fine, to further undergo two years rigorous imprisonment.

(2.) LEARNED counsel for the accused-appellant, Shri V. S. Shekhawat, at the very out-set, did not challenge the order of conviction passed against the accused-appellant by the learned trial court and submitted that the accused-appellant is in judicial custody since 20. 03. 2001, the date of his arrest, and he has already suffered the imprisonment of five years and ten months till now, and there is no minimum sentence of imprisonment prescribed as the quantity of contraband recovered in the present case is lesser than the commercial quantity, therefore, the maximum sentence awarded by the learned trial court be reduced to a period of five years and ten months imprisonment, already undergone by the accused-appellant.

(3.) SO far as sentence of imprisonment and fine is concerned, the learned counsel for the appellant has referred the decision in the case of wherein a Single Bench of this Court reduced the sentence of imprisonment, awarded to accused in that case, to a period of three-and-half-year, already undergone by him, in a case where there was recovery of opium weighing two kilograms. Although, the opium was recovered in the present matter on 20. 3. 2001 and, at the relevant time, a minimum sentence of ten years imprisonment was prescribed for such contraband-goods, but the Parliament passed the Narcotic Drugs and Psychotropic Substances (Amendment) Act No. 9 of 2001, which came into force with effect from 2. 10. 2001, and it was made applicable on all cases wherein trial was pending. The trial in the present case was also pending on the date of amendment in the N. D. P. S. Act. As per the amended provisions, the smaller quantity and commercial quantity were notified vide Notification dated 19. 10. 2001. The smaller quantity of opium was notified as 25 grams, whereas commercial quantity as 2. 5 kilograms. In the present case the contraband recovered was 1 kg. 900 gram, therefore, it was, admittedly, lesser than the commercial quantity, as notified in the aforesaid Notification. As per the amendment made in Section 18 of the N. D. P. S. Act, it was provided that where the contraband involves small quantity then the imprisonment may extend to six months; where the contraband involves commercial quantity then the rigorous imprisonment shall not be less than ten years; and, in any other case the rigorous imprisonment could be up-to ten years with fine which may extend to one lac rupees. The present case falls under clause (c) of Section 18 of the Act, wherein no minimum sentence has been prescribed but the imprisonment may be extended up-to ten years.