Judgment :-

S.B. Sinha, J.

Leave granted.

2. Interpretation of an amendment made in the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act") by reason of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act No. 9 of 2001) (for short "the Amending Act") which has come into effect from 2.10.2001 is the question involved in this appeal.

3. The said question arises in the following factual matrix.

On or about 26.09.1999, one Attar Singh, Sub-Inspector received a secret information that the appellant herein would come to a place known as Yamuna Pusta to deliver a consignment of smack. On the basis of the said information, he sent an intimation to the Asstt. Commissioner of Police, Narcotic Branch, whereupon he was directed by the Station House Officer to conduct a raid.

At about 12.15 p.m. on the said date, allegedly, the appellant was apprehended at the given place. He is said to have been provided with an option for getting himself searched before a Magistrate or a Gazetted Officer wherefor a notice under Section 50 of the Act was served. However, as he had not opted to be searched before a magistrate/Gazetted Officer, the appellant was searched by Sub Inspector Atar Singh.

Upon search of his person, 600 gms. of smack was recovered. Appellant was prosecuted under Section 21 of the Act. He was sentenced to undergo rigorous imprisonment for ten years. Fine of Rs.1,00,000/- was also imposed upon him.

4. Appellant preferred an appeal thereagainst, which by reason of the impugned judgment dated 23.03.2007 has been dismissed.

5. This Court by an order dated 22.09.2008 issued a limited notice with regard to the question as to whether the quantum of sentence imposed upon the appellant was required to be considered having regard to the amendment carried out by the Parliament in the year 2001 in the Act.

6. Gp. Capt. Karan Singh Bhati, learned counsel appearing on behalf of the appellant, would contend that the Amending Act being a beneficient legislation so far as an accused is concerned, the same will have a retrospective effect. In any event, it was urged, this Court while considering the question with regard to quantum of sentence should consider the effect thereof having regard to the fact that the appellant is in custody for a long period.

7. Ms. K. Amreshwari, learned senior counsel appearing on behalf of the State, on the other hand, would support the impugned judgment.

8. The offence indisputably took place on 26.09.1999. Appellant was convicted by a judgment dated 5.11.2000. As indicated hereinbefore, the Amending Act came into force on 2.10.2001. By reason of the said amendment, "commercial quantity" and "small quantity" were defined as under:

"2(viia) "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;"

2(xxiiia) "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."

9. Section 21 of the Act, which was also amended by Section 8 of the said Amending Act, reads as under:

"21. Punishment for contravention in relation to manufactured drugs and preparations

Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,--

(a) where the contravention 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) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment