CRL.A./485/2000 of DHANI RAM Vs STATE

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.A. No.485/2000Date of Decision : 8[th]FEBRUARY, 2017

DHANI RAM..... APPELLANTThroughMr.Mir Akhtar Hussain, Adv.

versus

THE STATE

..... RESPONDENTThroughMr.Panna Lal Sharma, AdditionalPublic Prosecutor for the State.

CORAM:HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J

1.Aggrieved by the judgment of conviction dated 8[th]July,2000 convicting the appellant finding him guilty under Sections20/61/85 of the Narcotic Drugs & Psychotropic Substances Act,1985 (hereinafter referred to as NDPS Act, 1985) and order onsentence dated 10[th]July, 2000 vide which the sentence was passedagainst the appellant to undergo rigorous imprisonment for periodof ten years and to pay fine of Rs.1,00,000/- for the offencepunishable under Section 20 of the NDPS Act, in default ofpaymentoffine,convictwasorderedtoundergosimpleimprisonment for two years, the present appeal has been filed.2.The facts in brief are that secret information was receivedon the basis of which the police of Narcotic Branch, on 20[th]January, 1995 at about 10.15 a.m., apprehended the appellantDhani Ram along with another accused Brij Pal at the Main

Passenger Hall, Ajmeri Gate, New Delhi Railway Station. Noticeunder Section 50 of the NDPS Act, 1985 was issued; search of theaccused was effected in the presence of public witness i.e.Mr.O.P. Tiwari, Assistant Commissioner of Police who was aGazetted Officer.On search, 500 gram of contraband i.e. charaswas alleged to have been recovered from his possession. Out of500 gram charas recovered, 50 grams was kept aside as samplewhile the remaining charas was kept in two separate parcels whichwere sealed with the seals of NPS and SSS. It appears from therecord that the case property was seized vide seizure memoExh.PW 2/B; CFSL form was filled in and sealed; rukka wasprepared; FIR No.53/1995 was registered; case property washanded over to the SHO; accused was arrested; the sample waschemically analysed and after completion of the investigation,accused was sent for trial to the court.It further emerges from therecord that on 3[rd]August, 1995, charge under Section 20 of theNDPS Act was framed against the accused to which he pleaded notguilty and claimed trial.

3.Theprosecutionhadexaminedasmanyaselevenprosecution witnesses namely PW 1 H.C. Ashok Kumar; PW 2ACP O.P. Tiwari; PW 3 H.C. Mange Ram;PW 4 H.C. SureshKumar; PW 5 H.C. Ranbir ; PW 6 Bhaskar Tripathi; PW 7 S.K.Singhala; PW 8 Inspt.S.S. Sanddhu & PW 9 SI Netra Pal Singh.The statement of the accused Dhani Ram was recorded underSection 313 of the Cr.P.C.

4.The appellant was held guilty by the learned Special Judge,Delhi and by an order dated 10[th]July, 2000, sentenced to undergorigorous imprisonment for ten years and fine of rupees one lakh forthe offence punishable under Section 20 of the NDPS Act, 1985.

GROUNDS OF CHALLENGE

(a)There has been non-compliance with Section 313 Cr.P.C.inasmuch as the appellant had been convicted on the evidence andincriminating material which was never put during examinationunder Section 313 Cr.P.C.Seizure memo was prepared on 21[st]January, 2000 while ACP and SHO signed the same one day earlieri.e. on 20[th]January, 2000. It was alleged that there was violation ofSections 42, 50, 55 & 57 of the NDPS Act.The document whichwas placed on record by the prosecution is addressed to the DCPbut it was not proved to have been sent to DCP. Notice Ex.PW6/A was prepared after the FIR was registered; As per prosecution,notice to appellant was given before arrival of ACP/G.O which wascontradicted by statement of the investigating officer & issuance ofnotice to the accused is doubtful.Neither the ACP nor the SHOhad witnessed the search, seizure and arrest of the appellant. Thepublic witness was chance witness whose whereabouts were notknown and even his presence is doubtful.5.Apart from challenging the judgment of conviction, learnedcounsel for the appellant further submitted that vide order dated23[rd]November, 2000 passed by this court, given the facts andcircumstances of the case, the sentence of the appellant wassuspended during the pendency of the appeal.

6.In support of his contention, learned counsel for theappellant relied on the pronouncements of the Supreme Court inBidyadhar Dolai Vs. The State 1993 Crl.L.J. 260; State of U.P.Vs. Subhash kumar Singh Tomar 2009 (2) Crimes 386 (SC);State of Delhi Vs. Ram Avtar@Rama 2011 (4) Crimes 26 (SC);[REDACTED],Customs,

Customs House, Punjab (2011) 12 Supreme Court Cases 298;Ashok Kumar Shamra Vs. State of Rajasthan 2013 (1) SCALE193 & Suresh & Ors. Vs. State of Madhya Pradesh 2013 Crl.L.J.474.

7.Per contra, arguments advanced by learned AdditionalPublic Prosecutor for the State is that the appellant was rightly heldguilty under Section 20 of the Narcotic Drugs and PsychotropicSubstances Act, 1985. It is submitted that on 20[th]January, 1995, asecret information was received by the police of Narcotic Branchand the appellant and one Brij Pal, co-accused were apprehendedwith contraband i.e. charas, at Ajmeri Gate, New Delhi RailwayStation.It is submitted by APP that search of the accused wasmade in the presence of public witness and that charas weighing500 grams was recovered from his possession.

8.Upon hearing the rival contentions of the parties at length,evidence led is being examined.

(I)PW 9 SI Netrapal in his statement deposed that on 20[th]January, 1995 while posted at New Delhi Railway Station, at about10.15 p.m., he received secret information (vide DD No.20A)regarding possession of charas with two persons sitting at mainpassenger hall, Ajmeri Gate side.This witness informed PW 8Inspt.S.S. Sandhu who directed him and SI Ram Phal, fororganising raiding party and pursuant thereto, this witness formeda raiding party comprising of SI Ram Phal, HC Suresh & HC LalChand under the supervision of PW 8 Inspt.S.S. Sandhu. The teamreached the spot at 10.25 p.m. when this witness asked theinformer to verify the position of the two boys who afterverification, apprised that the boys are sitting at the same placewhere they usually sat. PW 9 further added that he requested eight

to ten persons passing through the flyover, for joining the raidingparty to which they denied.PW 9 next stated that at about 10.30p.m. the raiding party under the supervision of PW 8 Inspt.S.S.Sandhu, raided the place and apprehended the accused Dhani Ram(appellant herein) having cloth bag and accused Brij Pal having araxin bag. This witness identified both the accused persons presentin court. Public persons available at the main passenger hall wereasked to join, out of whom one Bhaskar Tripathi (PW 6)voluntarily joined. This witness along with SI Ram Phal, preparedand served notice under Section 50 of NDPS Act to the accusedDhani Ram while SI Ram Phal served notice under Section 50 tothe accused Brij Pal in his presence. The accused Dhani Ram wasasked to be searched before Gazetted Officer or Magistrate towhich he replied that search could be made as the police deemsappropriate and that PW 8 Inspt.S.S. Sandhu directed PW 4 H.C.Suresh Kumar who called on telephone PW 2 ACP RailwaySh.O.P. Tiwari. On the direction of PW 2 O.P. Tiwari, the thenACP, personal search of Dhani Ram (appellant herein) waseffected by this witness while SI Ram Phal was directed to givesearch of the accused Brij Pal, who recovered raxin bagcontaining one pant, shirt and one packet containing battinuma anddallinum charas which when weighed, came out to be 500 grams.PW 9 further stated that 50 grams of charas was taken out assample while the remaining charas and sample charas wereparcelled into two separate cloth parcels.This witness furtherstated that thereafter, SI Ram Phal & PW 8 Inspt. S.S. Sandhuaffixed their seals NPS & SSS respectively on the two parcels;CFSL form was filled; both the sealed parcels & CFSL form weretaken into possession vide seizure memo Ex.PW 2/B which were

handed over to PW 8; SI Ram Phal handed over seal to publicwitness Bhaskar Tripathi. Thereafter SI Ram Phal prepared rukka;handed over the same to HC Lal Chand who returned to the spotafter getting the case registered. This witness added that SI RamPhal prepared site plan marked ‘X’ in his presence; recorded thestatement of witnesses. PW 9 was recalled for examination whenhe brought the register of DD containing entry no.20A in his ownhandwriting, the correct copy whereof was Ex.PW 7/A.

(II)The statement of PW 9 is corroborated by the statement ofPW 6 Mr.Bhaskar Tripathi who in his statement stated that on 20[th]January, 1995, he was present at the New Delhi Railway Stationfor the purpose of visiting his village at Varanasi and at about10.30 p.m. both the accused who were present in court on the dateof statement, were apprehended by the police in his presence. Thiswitness stated that the police asked one of the persons about theinformation received of possession of charas and that he would bepersonally searched.Option was given to the accused to gethimself searched or search in the presence of Magistrate or aGazetted officer, to which the person refused and the police gavehim written notice (Exh.PW 6/A) on which he signed. The samebears the signatures of this witness at point ‘A’.PW 6 furtherstated that some senior police officers came thereafter; accused wassearched by the police in his presence and that from the possessionof the accused Dhani Ram, bag was recovered while from thepossession of the accused Brij Pal, rexin bag with four packets ina polythene was recovered and when the said packets were opened,they were found to be containing charas. Thereafter, charas of allthe four packets was collected and weighed in his presence whichcame out to be 500 grams out of which 50 grams was separated as

sample and both sample and the remaining charas was sealed. PW6 added that seal was handed over to him after use and that the saidthree seals were put on both the packets again. This witness statedthat accused Dhani Ram was searched prior to Brij Pal and 500grams of charas was recovered from his possession out of which 50grams was separated as sample. The seizure memo Exh.PW 4/Bbears the signatures of this witness at point ‘A’. Thereafter, oneconstable was sent to the police station and he came back at thespot along with some papers.The site plan was also preparedbefore this witness. This witness deposed that accused Dhani Ramwas arrested and Exh.PW 4/B bears his signatures.PW 1 HCAshok Kumar corroborated the statement of PW 9 SI Netra Pal, IOand the statement of PW 6 Mr.Bhaskar Tripathi. PW 1 stated thatwhile posted as D.O., Police Station NDPS, he received rukkaExh.PW 1/A from SI Ramphal Sharma through Head Ct. LalChand on which basis he recorded formal FIR.This witnessfurther deposed that carbon copy (PW 1/B) of FIR was correctedby him by his own handwriting and that the same was signed byhim.Statement of PW 1 has been corroborated by the statementof PW 2 ACP O.P. Tiwari who deposed that while working as ACPRailways, on 20[th]January, 1995 at about 10.45 p.m., he receivedtelephonic call at residence from Head Ct.Suresh to the effect thattwo suspected persons had been detained in the Passenger Hall ofAjmeri Gate side at New Delhi Railway Station upon which thiswitness reached the spot and found both the suspected persons withtwo bags. PW 2 further stated that PW 8 SHO S.S. Sandhu; PW 9SI Netarpal Singh & SI Ram Phal were also on the spot.Thiswitness introduced himself to the suspected persons and directed SIRamphal to offer his personal search to the accused/appellant butno incriminating material was recovered by the investigatingofficer.He further deposed that upon his direction, Ram Phaleffected search of the accused/appellant and found four packetsrolled in polythene which were found to be charas and whenweighed, was found to be 500 grams. PW 2 further stated that 50grams of charas was separated as sample which was sealed inparcel with the seal of NPS & SSS.The remaining charas wassealed in another parcel and seals of NPS & SSS were affixedthereon. Thereafter, sealed parcel and form CFSL were taken intopossession vide seizure memo Exhs.PW 2/B & 6/C respectivelywhich bore his signatures; two sealed parcels & form CFSL werehanded over by IO to the SHO and after giving instruction to theSHO & IO, this witness left the spot. The witness deposed that hecan identify the seized rexin bag.

(III)PW 3 H.C. Mange Ram deposed that on 21[st]January, 1995,he was working as MHC(M)when PW 8 Inspt.S.S. Sandhuhanded him two bags duly sealed with the seal of NPS & SSSalong with form CFSL and entry to this effect was made by thiswitness at serial nos.1796 & 1797 in Register No.19. PW 3 furtherstated that on 7[th]February, 1995, vide Ex.PW 3/A & PW 3/B, thesamples of both the cases along with CFSL form was sent to CFSL,Chandigarh through Ct.Ranbir Singh. This witness deposed that hehad brought the original which was in his hand and that originalwas seen and returned by him.

(III)PW 5 HC. Ranbir in his statement stated that on 7[th]February, 1995, he took two parcels sealed with the seal of SSS &NPS and one CFSL form from MHC(M) vide R.C. No.138/21 forthe purpose of being deposited at CFSL, Chandigarh which wasdeposited by him on the same date. This witness further stated that

one parcel belonged to this case while the other was from an othercase.

(IV)HC Lal Chand deposed that on 20[th]January, 1995, while hewas posted at PS, NDLS as Head Constable, PW 9 SI Netra PalSingh got secret information regarding possession of charas withtwo boys at main passenger hall, Ajmeri Gate side. This witnessfurther stated that PW 9 narrated the facts of secret information toPW 8 SHO S.S. Sandhu on the basis of which PW 8 under hissupervision, formed raiding party consisting of this witness; PW4 HC Suresh Kumar, SI Ram Phal; PW 9 Netra Pal. Thereafter,the investigating officer asked eight to ten public persons to jointhe raiding party but none agreed and at about 10:30 p.m., the raidwas conducted at the spot. HC Lal Chand stated that he along withPW 9 SI Netra Pal apprehended the accused Dhani Ram sitting atmain passenger hall, Ajmeri Gate and possessing bag.Thiswitness next deposed that PW 9 SI Netra Pal apprehended theaccused/appellant sitting at main passenger hall, Ajmeri Gate andpossessing bag. PW 6 further stated that he did not rememberwhat happened afterwards. This witness was recalled for furthercross-examination on 6[th]January, 2000 when he reiterated theabove facts and added that no person from the nearby taxi, scooterand Tanga stand was called for joining the raiding party. PW 6added that ACP reached the spot at about 11.05 p.m. and duringthat period, no recovery was made from the accused; IO had givenhis search to the accused before taking his search and that theproceedings took two and half hours to complete after arrival ofACP on the spot. This witness left the spot and took the rukka atabout 12.40 midnight. On his return, statement of this witness wasrecorded which was signed by him.

(V)PW 7 Sh.S.K. Singhala in his statement stated that while hewas working as Senior Scientific Officer in CFSL, Chandigarh, on7[th]February, 1995, he received one parcel having five seals out ofwhich three were of SSS while two were of NPS containing Ex.1enclosed in polythene. PW 7 stated that after conducting variouslaboratory tests, Ex.P 1 was found to be charas and detailed reportwith regard to Ex.PW 7/A bore his signature at point ‘A’.

(VI)PW 8 Inspt.S.S. Sandhu in his statement deposed that whileposted as SHO at Police Station NDLS, at about 10:15 p.m., PW 9SI Netra Pal informed him about the secret information to theeffect that two suspected persons having charas with them, weresitting in the Passenger Hall, Ajmeri Gate at the New DelhiRailway Station. PW 8 Inspt.S.S. Sandhu directed PW 9 SI NetraPal for forming raiding party and that raiding party consistingof this witness; PW 9 SI Netra Pal; SI Ram Phal Singh; PW 4 HCSuresh & HC Lal Chand, was formed. Information to this effectwas recorded by PW 9 SI Netra Pal vide DD No.20 dated 20[th]January, 1995. This witness along with the raiding party, reachedthe spot and directed the secret informer to verify about thepresence of suspected persons while PW 9 SI Netra Pal informedeight-ten passersby to join but nobody agreed. PW 8 further statedthat on pointing out by secret informer, the accused Dhani Ramwas apprehended by PW 9 SI Netra Pal while accused Brij Pal wasapprehended by PW 11 SI Ram Phal & PW 6 HC Lal Chand.Thereafer, PW 9 SI Netra Pal requested some persons present therefor joining the proceedings to which PW 6 Bhaskar Tripathivoluntarily agreed. This witness categorically stated that accusedBrij Pal (appellant herein) had brown coloured bag in his righthand and that he was sitting along with accused Dhani Ram.

Thereafter this witness apprised both the accused about thecontents of notice under Section 50 (Ex.PW 6/A) of the NDPS Actand stated that they would proceed as would be proper. Thiswitness deposed that thereafter he directed PW 4 HC Suresh to callMr.O.P. Tiwari, ACP Railway (PW 2); at about 11:00-11-05, PW 2visited the spot and both the accused were interrogated.PW 8added that he directed personal search of accused Dhani Ramwhich was effected by SI Netra Pal and that bag was recoveredfrom his possession. PW 8 next stated that the zip of the said bagwas opened from which one packet was found which uponchecking was found to contain Battinuma & Dullynuma charas.He stated that charas recovered when weighed, was found to be500 grams out of which 50 grams was separated as sampleconverted into pulanda with the help of cloth while the remainingcharas was converted into separate pulanda with cream colouredtape which were sealed with the seal of NPS and SSS.PW 8stated that CFSL form was filled and seal after use was given towitness Bhaskar Tripathi. PW 8 further stated that both Pulanda &CFSL form were taken into possession vide seizure memo Ex.PW2/B which bore signature of this witness at point ‘B’. This witnessstated that SI Ram Phal prepared rukka; HC Lal Chand was sent topolice station for registration of FIR who came back to the spotalong with original rukka & FIR.Thereafter, this witness tookboth the pulandas & CFSL form; went to the police station &deposited the same with MHC(M) and that DD number 4A wasmade by this witness on the same day.He deposed that theaccused Brij Pal was arrested in his presence and search memo wasprepared.PW 8 was recalled on 17[th]February, 2000 for furtherexamination when he brought the DD register containing DD

9.Thus, as per the testimony of PW 9 SI Netrapal, on the dateof incident, upon receipt of secret information that the appellantDhani Ram and the co-accused Brij Pal, who were in possession ofcontraband i.e. charas, he informed PW 8 Inspt.S.S. Sandhu and onhis direction, this witness organised raiding party. raid wasconducted and the accused persons were apprehended sitting atmain passenger hall, Ajmeri Gate side. This witness along with SIRam Phal, prepared and served notice (Ex.PW 6/A) under Section50 of NDPS Act to the accused Dhani Ram. This witnessapprehended the accused Dhani Ram (appellant herein) having acloth bag and accused Brij Pal having raxin bag.The bag wasopened in the presence of this witness which was found containingone pant, shirt and one packet containing battinuma and dallinumcharas which when weighed, came out to be 500 grams.Afterpreparing separate sample packet, remaining smack was seized.Rukka Exh.PW 1/A was prepared; case was registered and the siteplan was prepared. PW 8 Inspt. S.S. Sandhu testified the statementof PW 9 SI Netrapal to the effect that he was informed about thesecret information and that the raid at the Passenger Hall, AjmeriGate side in New Delhi Railway Station was conducted in hispresence and on his direction in which accused Dhani Ram wasapprehended by PW 9 SI Netra Pal. Similarly, the testimony ofPW 6 Bhaskar Tripathi, the punch witness, corroborated andtestified the statement made by PW 9 SI Netra Pal, IO as well asthe statements of the raiding party i.e. PW 4 HC Suresh Kumar &This witness, categorically, stated that on 20[th]January, 1995, whenhe was present at the New Delhi Railway Station, both the accusedpersons were apprehended in his presence.This witness further

corroborated that both the accused persons were searched by thepolice in his presence and that 500 grams of charas was recoveredfrom their possession out of which 50 grams was separated assample.

10.All the above witnesses were cross-examined at length butthe defence had failed to put any dent to their testimony.Theyremained unshaken with regard to conducting of raid andapprehension of the appellant Dhani Ram as well as co-accusedBrij Pal with the contraband i.e. charas. They have also stated in asingle voice that the accused persons were served with the noticeunder Section 50 of the NDPS Act; charas weighing 500 gramseach was recovered from the appellant Dhani Ram and the co-accused Brij pal upon them and with regard to the proceedingsconducted at the spot.

11.Contention of the learned counsel for the appellant that therewas no proper service of notice under Section 50 of the NDPS Actupon the appellant, is without any basis inasmuch as notice underSection 50 of the NDPS Act Exh.PW 6/A shows that afterapprehension of the appellant and the co-accused, they wereoffered to get themselves searched in the presence of gazettedofficer or Magistrate before conducting their search. This clearlyproves that the contents of notice under Section 50 of the NDPSAct were duly explained to the appellant before conducting hissearch and thus there is mandatory compliance of Section 50 of theNDPS Act by the police before conducting search of the appellant.Even ACP has stated that recovery was effected from the appellantin his presence.

12.The testimony of the raiding party members has also beenduly corroborated by CFSL report which shows that when the

sealed sample was opened and examined, the same was identifiedas charas. The CFSL report duly proves the case of the prosecutionthat the recovered substance from the appellant was contrabandi.e. charas.

13.The discussion made above shows that the testimony madeby the police officials including the independent public witness istrustworthy and their testimony coupled with CFSL report bringsthe case of prosecution within the four corners of the allegedcommission of offence which culminated into the conviction of theappellant.This court is of the considered opinion that theprosecution has successfully proven the guilt of the appellant.

14.As result, no error or illegality is found in the view takenby the Trial Court and the judgment of conviction dated 8[th]July,2000 and the same is upheld.

15.A prayer is made by learned counsel for the appellant to theeffect that lenient view may be taken in terms of sentenceawarded to the appellant keeping in view the fact that the appellantis facing trial since 1995 and that almost twenty one years havebeen elapsed.Learned counsel for the appellant has furthersubmitted that the appellant was awarded punishment under theNarcotic Drugs & Psychotropic Substances Act, 1985 which wasamended in the year 2001 and in view of the amended Act, thepunishments for the offences under the Act, have been reduced.Likewise, the sentence in the present case may also be reduced.16.In the judgment passed by the High Court of Rajasthan, itwas held as under:-

“Whenalegislationisbroughtintoexistence, it is for the benefit of the people andthe Court should give such interpretation which isnot only beneficial to the person who takes

benefit out of it but it should also be inconsonance with the Statement of Objects andReasons given in the Amending provisions. TheStatement of Objects and Reasons appended tothe Bill is as follows:

StatementofObjectsandReasons:-Amendment Act 9 of 2001:- The Narcotic Drugsand Psychotropic Substances Act, 1985 providesdeterrent punishment for various offences relatingtoillicittraffickinginnarcoticdrugsandpsychotropic substances. Most of the offencesinvite uniform punishment of minimum ten yearsrigorous imprisonment which may extend uptotwenty years. While the Act envisages severepunishments for drug traffickers, it envisagesreformative approach towards addicts. In view ofthe general delay in trial, it has been found thatthe addicts prefer not to invoke the provisions ofthe Act. The strict bail provisions under the Actadd to their misery. Therefore, it is proposed torationalise the sentence structure so as to ensurethatwhiledrugtraffickerswhotrafficinsignificant quantities of drugs are punished withdeterrent sentences, the addicts and those whocommit less serious offences are sentenced to lesssevere punishment. This requires rationalisationof the sentence structure, provided under the Act.It is also proposed to restrict the application ofstrict bail provisions to those offenders whoindulge in serious offences.

12.This Statement of Objects & Reasons itselfis beneficial for the interest of the accused whoare languished in jail for considerable time onaccount of being minimum ten years punishmentin contraband drugs and are denied right of bail asagainst those who are indulged in large scalequantity of drugs trafficking. This Amendmentprovides rationalization in the matter of grant ofbail as well as in the matter of awarding sentencebydistinguishingthenarcoticdrugs&psychotropic substances in three categories viz;(i) small, (ii) commercial and (iii) in between

small & commercial. If the legislation is silent ona particular issue which his apparently in thepresent case about applicability of the AmendingAct' In case where sentence has been passed priorto Amendment and no appeal has been filed afterthe Amendment, then the Court should give thatinterpretation which is in furtherance of theintentionofthelegislaturegivenunderitspreamble or Statement of Objects & Reasons.”

[Prema alias Prem Singh Vs. State of Rajasthan inS.B. Crl.J. Appeal No.738/2001 Dt.19.07.2007]

17.This Court on similar facts and circumstances, has held asunder:-

“It is fundamental right of every person that heshould not be subjected to greater penalty thanwhat the law prescribes, and no ex post factolegislation is permissible for escalating the severityofthepunishment.Butifanysubsequentlegislation would downgrade the harshness of thesentence for the same office, it would be salutaryprinciple for administration of criminal justice tosuggest that the said legislative benevolence can beextended to the accused who awaits judicial verdictregarding sentence."

[Sultan Vs. State 2004 (73) DRJ 460]

18.India is party to three United Nations Drug Conventionsand to give effect to the treaties, NDPS 1985 enacted in order toprovideadequatepenaltiesfordrugtrafficking,strengthenenforcement powers, implement international conventions to whichIndia was party and enforce controls over the contraband.NDPS Amendment Act 1989 came into effect to combat drugtrafficking which was influenced by the signing of 1988 Conventionby India. After this amendment, people caught with small amountsof drugs faced long prison sentences and hefty fines.The said

amendment of 1989 was criticized for harsh and disproportionatesentencing structure and momentum for reform was created. Byway of amended Act of 2001, scale of sentencing and fine wasreduced depending upon the substance and quantity found.Itbasically provides for determining the amount of drugs involved inan offence while sentencing an accused.It also provides fordeterrent punishment for the drug traffickers while reformativeapproach towards addicts has been adopted.Therefore, threedifferentquantityofdrugshavebeeninvolvedi.e.small,commercial or intermediate while sentencing. The legislature waswise enough to provide different punishments for possessing smallor commercial quantity of drugs.

19.The amended Act of 2001 is beneficial legislation whichprovides for lesser punishment in case of drug addicts who arefound with the lesser quantity of prohibited substance ascomparedtothe drugtraffickerswhoarefoundhavingcommercialquantityofcontrabandwhichattractsharshpunishment and hefty fines.

20.In the present case, the appellant has already undergoneabout eight months incarceration for possession of 500 grams ofcharas. The peculiar circumstances of the present case are that theappellant was arrested on 20[th]January, 1995 and as per thesentence awarded to him, he would have completed ten years in theyear 2005 if he remained confined in jail for the said period.Keeping in view the judgment in the case of Sultan (supra) andthe beneficial provisions of the amended NDPS Act of 2001, thesentence awarded to the appellant is reduced to five years with fineof Rs.50,000 /-. In default of payment of fine, the appellant shallfurther undergo the sentence of one year simple imprisonment.

21.The appellant is directed to surrender before the trial courtconcerned to serve the remainder of sentence.22.Withtheabovemodificationinthesentenceofimprisonment, the present appeal is disposed of.

FEBRUARY 08, 2017aa

(P.S.TEJI)JUDGE