Kanwaljit Singh Ahluwalia, J. (Oral):- The present appeal has been instituted by Santosh Kumar son of Ram Narain, resident of village Aliganj Loharai Darwaja Aliganj, District Etah (Uttar Pradesh). He was named as an accused in case FIR No. 187 dated 28.10.1997, registered at Police Station City, Moga, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “1985 Act”).

2. This Court has passed various orders to effect service upon the appellant. On 21.5.2009, this Court had directed the Court of Chief Judicial Magistrate, Moga, to issue notice to the appellant and his sureties as to why coercive method be not initiated against them. On 20.10.2009, this Court ordered that bailable warrants be issued and explanation of the Chief Judicial Magistrate, Moga, be called as to why bailable warrants had not been executed.

3. Before this Court could pass any other order, Mr. Mehardeep Singh, Deputy Advocate General, Punjab, has brought to the notice of this Court that the appellant has undergone seven years six months and 21 days, out of ten year’s sentence, awarded to him. He has placed on record affidavit of Roop Kumar, Superintendent, Central Jail, Ludhiana, wherein the period, already undergone by the appellant, has been mentioned. This affidavit has been taken on record.

4. Learned counsel for the State has also brought to the notice of this Court that the recovery effected from the appellant was 1 Kg. of opium.

5. On 10.2.1998, the trial Court had framed the following charge:-

“That on 28.10.97 at 2.15 p.m. in the area of New Grain Market Zira Road, Moga, you found in possession of 1 Kg of opium without any licence and permit and thereby you committed an offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and within the cognizance of this Court”.

6. The appellant had pleaded not guilty to the charge and claimed trial.

7. In the present case, recovery of 1 Kg. of opium was effected from the appellant on 28.10.1997. The judgment of conviction and order of sentence were passed on 29.1.2002.

8. By Act No. 9 of 2001, the 1985 Act was amended and small quantity and the commercial quantity were defined. A notification, specifying a small quantity and the commercial quantity, is given in a table annexed with the 1985 Act under Sub Clause vii(a) and xxiii(a) of Section 2 of the 1985 Act. An entry No. 92, given thereunder, reads as under:-

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Sr. No. Name of Other non- Chemical Small Commercial

Narcotic Drug proprietary Name quantity quantity

And name (in gm) (in gm./Kg.

Psychotropic

Substances

(International

non-proprietary

name (INN)

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1 to 91 XXX XXX XXX XXX XXX

92 Opium -- And any 25 2.5 Kg.

Preparation

Containing

opium

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9. Therefore, any quantity of opium recovered, which is less than 2.5 Kgs., is a non-commercial quantity. The Hon’ble Apex Court in Basheer alias N.P. Basheer v. State of Kerala 2004(1) Recent Criminal Reports 1008 observed as under:-

“23. Thus, in our view, the Rubicon indicated by Parliament is the conclusion of the trial and pendency of appeal. In the cases of pending trials, and cases pending investigation, the trial is yet to conclude; hence, the retrospective mollification of the rigour of punishment has been made applicable. In the cases where the trials are concluded and appeals are pending, the application of the amended Act appears to have been excluded so as to preclude the possible contingency of reopening concluded trials. In our judgment, the classification is very much rational and based on