S.P. Khare, J.
1. Appellant Mahesh Chandra Nagar has been convicted under Section 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/-.
2. After hearing the learned Counsel for both the sides and after scanning the evidence on record, this Court is of the opinion that the conviction of the appellant for the aforesaid offence is well merited. CD. Tiwari (P.W. 5) has deposed that on 4-3-2000 he was Station Officer of Ashta Police Station and on that date he received information at 8.15 P.M. that there is a person at Pagaria Ghati in possession of Charas. He recorded this information of Rojnamcha Sanha No. 224 (Ex. P-14) and in the Panchnama (Ex. P-1). He transmitted this information to S.D.O. (Police) as per Ex. P-2. Thus the provision in Section 42 (1) and (2) of the Act has been fully complied with. As a matter of fact Section 42 of the Act was not attracted as it was not a case of search of a 'building, conveyance or enclosed place'.
3. CD. Tiwari (P.W. 5) has further deposed that he proceeded to Pagaria Ghati with his staff and two witnesses Inder Singh (P.W. 7) and Athar Khan (P.W. 4). He found accused Mahesh Chandra Nagar there. He apprised him of his right to be searched in the presence of a Magistrate or a Gazetted Officer as provided in Section 50 of the Act. He prepared a Panchnama for that purpose and that is Ex. P-12. The accused opted to be searched by him. That is recorded in the Panchnama Ex. P-12. On search of the left hand pocket of the trouscr of the accused Charas was recovered. The weight of this Charas was 80 grams. He prepared two samples of 25 grams each and sealed them. The seizure memo is Ex. P-9. He sent the samples to the Government Opium & Alkaloid Works, Neemuch on 9-3-2000. The report of the Assistant Chemical Examiner is Ex. P-28. It shows that the commodity was found to be Charas. According to. this report the seals on the samples were found to be intact.
4. Inder Singh (P.W. 7) and Athar Khan (P.W. 4) have corroborated the testimony of the Investigating Officer. CD. Tiwari (P.W. 5) has further deposed that he sen! the report of the search and seizure to S.D.O. (Police) as required by Section 57 of the Act. That is Ex. P-20, Thus the requirements of statutory provisions were fully observed. The conviction of the appellant for the aforesaid offence is unassailable.
5. The impugned judgment is dated 22-11-2001. The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 came into force on 2-10-2001. Thus this case was pending at the time when the Amendment Act, 2001 came into force. Section 41 of Amendment Act, 2001 (9 of 2001) provides :
'41. Application of this Act to pending cases.-- (1) Notwithstanding anything contained in Sub-section (2) of Section 1, all cases pending before the Courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the Principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the Principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offence: Provided that nothing in this section shall apply to cases pending in appeal.'
6. Section 20 which deals with punishment for contravention in relation to cannabis plant and cannabis as amended by the Amendment Act of 2001 is as under:--
'20. Punishment for contravention in relation to cannabis plant and cannabis.-- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,--
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis shall be punishable,--
(i) where such contravention relates to Clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to Sub-clause (b),--
(A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees, or with both;
(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees :
Provided that the Court may for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.'
7. The expressions 'small quantity' and 'commercial quantity' have been defined in Section 2 (xxiiia) and (viiia) as under :--
' 'small quantity', in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette.'
' 'commercial quantity', in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette.'
8. In exercise of the powers conferred by Clauses (viiia) and (xxiiia) of Section 2, the Central Government has issued the notification dated 9-10-2001 and a table has been provided to ascertain whether any narcotic drug and psychoiropic substance is of small quantity or commercial quantity. According to Item No. 23 of this table, cannabis (Charas) upto 100 grams is 'small quantity' and one kilogram is a 'commercial quantity'.
9. It was necessary for the Trial Court to take note of the amended provisions mentioned above and then determine the question of sentence. In the present case the quantity of Charas recovered from the possession of the accused was 80 grams. Therefore, it is covered by the expression 'small quantity'. As such as per Section 20(b)(ii)(A) the offence committed by the appellant is punishable with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both. There is rationalisation of the quantum of sentence. There are now 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 the punishment would depend upon that quantity. There is now graded punishment for offences under Sections 15, 17, 18, 20, 21, 22 and 23 as provided therein. The benefit of the rationalisation of the sentence structure, by virtue of Section 41 of the Amendment Act, has been extended not only to those cases wherein the offences have been committed from 2-10-2001 onwards, that is, the date on which this amendment came into force, but also to the cases wherein the offences were committed before 2-10-2001. According to the proviso to Section 41 the benefit cannot be extended in those cases which were pending in appeal on the said date.
10. If the Trial Court has not examined the question of punishment in light of the amended provisions, as mentioned above, then in appeals arising out of the judgments of the Trial Court delivered on or after 2-10-2001, the Appellate Court can do what the Trial Court ought to have done. In the present case the appellant has already remained in jail as an undertrial prisoner tor 627 days and he continues to be in jail even during the pendency of this appeal. The substantive sentence of imprisonment of ten years imposed by the Trial Court is reduced to six months. The sentence of fine is set aside because if any fine is imposed then the imprisonment in default of payment of that fine cannot in the present case legally exceed one and a half months (one-forth of the term of imprisonment which is the maximum fixed for the offence). As already stated, the appellant has spent that period also in jail. Thus the appeal is partly allowed on the point of sentence only. The appellant shall be released from jail immediately if he is not required in any other case.
11. It has been noticed in the appeals that the Special Courts constituted under the Act are not examining the question of sentence as per amended provisions in the Act and therefore a copy of this judgment be circulated immediately to all the Special Courts under the Narcotic Drugs and Psychotropic Substances Act, 1985.