The amended NDPS Act, including the definition of 'small quantity' and the reduced punishment for such quantity, applied to pending cases, including bail applications, by virtue of section 41 of the Amendment Act.

The Court: The matter is taken up today for passing order on the bail petition filed by the petitioner-accused. We have already heard the submissions of both sides. The contention of Mr. Bagchi, the Ld. Advocate for the petitioner, is that the offences alleged against the petitioner are to be treated as practically bailable in view of the latest amendment of the N.D.P.S. Act, 1985 (as amended in 2001) (Act 9 of 2001), because, the quantity of heroin which has been seized from the possession of the petitioner being only 3.5 grams fall short of the prescribed "small quantity" which amounts to 5 (five) grams as per the Govt. Notification issued under the said amended Act. Mr. Bagchi refers to the provisions of section 3 of the amended Act whereunder 'small quantity' in relation to Narcotic Drugs and Psychotropic Substances has been defined to mean any quantity lesser than the quantity specified by the Central Govt. by Notifications in the Official Gazette, namely, the Notification of the Govt. of India, Ministry of Finance, dated 27th September, 2001 and also the Notification dated 19th October, 2001. Under the latter the quantity constituting "small quantity", "commercial quantity" etc. of an offensive article which may be found in the possession of the accused have been specified in Column Nos. 5 & 6 respectively of that Table given thereunder. According to serial No. 56 of this Table in order to fall within the category of 'small quantity' the quantity of heroin found in the possession of the accused person shall not exceed 5 (five) grams. Mr. Bagchi next draws our attention to the amended section 21(a) of the Act which lays down that where the contravention involves 'small quantity' it shall be punishable with rigorous imprisonment for a term which may extend to six months or with fine or with both. Then he further attracts our notice to section 27 of the principal Act as amended under the said Amendment Act whereunder the maximum punishment provided is only rigorous imprisonment for one year. Thus according to Mr. Bagchi, the quantity of heroin recovered from the petitioner being 'small quantity' within the meaning of the above definition the penalty provided for will be less than two years and therefore will have to be treated as bailable offence in view of the provisions of the Second Schedule of the Code providing that in case of offences under other laws than the Indian Penal Code, they shall be bailable if the maximum punishment awardable is imprisonment for less than three years only. Mr. Bagchi then takes resort to the provisions of section 41 of the said Amendment Act which lays down that 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 an 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 on appeal. Mr Bagchi contends that in view of this clear and express provision, in case of the pending matters the lesser punishment if otherwise applicable will have to be awarded irrespective of the date from which the Act may have to take effect and if the lesser punishment is awardable in case of such an offence after holding trial, then, while considering the bail prayers of the accused persons in respect of such offences the Court should also be governed by the new quantum of penal provision. In other words, since the offence is punishable with imprisonment for a period which does not exceed even a year, the rigorous of the first part of the provisions of section 37 of the NDPS Act in the matter of granting of bail t