Kanwaljit Singh Ahluwalia, J. (Oral):-The present appeal has been filed by Mukhtiar Singh resident of village Jaullian Police Station Bhawanigarh, District Sangrur who was named as an accused in case FIR No.73 dated 6.6.1996 registered at Police Station Bhawanigarh under Section 15 of NDPS Act.

2. Case of the prosecution is that 15 kgs. of poppy husk was recovered from the appellant. The Court of Judge, Special Court, Sangrur found appellant guilty of offence under Section 15 of NDPS Act and sentenced him to undergo RI for 10 years and pay a fine of Rs.1 lac and in default of payment of fine, to further undergo RI for 2 years.

3. Briefly stated case of the prosecution is that ASI Pritam Singh, along with other police officials, was present on 6.6.1996 at ‘T’ point of Kakra Bridge. At that time, one Hakam Singh arrived there. He was associated with the police party. Accused – appellant was seen coming from opposite side carrying a bag on his head. Seeing the police party, accused – appellant made an attempt to escape. He was apprehended. ASI Pritam Singh in terms of Section 50 of the NDPS Act made an offer to him to get himself searched either from a Gazetted Officer or a Magistrate. The accused – appellant reposed trust in ASI Pritam Singh. A consent memo Ex.PA was prepared. Search was conducted. 15 kg. of poppy husk was recovered from the aforesaid bag.

4. Sh. Dhirinder Chopra, Advocate appearing for the appellant has stated that he will not assail the conviction of the appellant, on the ground that the testimonies of police officials aspire confidence. However, he has stated that the learned trial Court committed a grave error in awarding sentence of 10 years and a fine of Rs.1 lac upon the appellant. It is stated that on 2.10.2001 Act was amended and commercial, non-commercial and the small quantity were introduced. Counsel has referred to a table introduced in view of the Amendment. The table under serial number 110 provides small quantity and commercial quantity. Entry at serial number 110 regarding poppy straw reads as under:-

Table

[See sub clause (viia) and (xxiiia) of Section 2 of the Act]

SI. No. Name of Narcotic Drug Other non- Chemical Small Commercial

& Psychotropic propriety Name quantity quantity

Substance name (in gm.) (in gm./kg)

(International non-

Proprietory name

(INN))

1 2 3 4 5 6

1 to 109 xxxxxxxx

110 Poppy straw 1000 50 kg.

5. Hon’ble the Apex Court in Basheer @ N.P. Basheer vs. State of Kerala 2004(1) Recent Criminal Reports 1008 had observed in Para 23 of the judgment 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 clearly intelligible differentia, which has rational nexus with one of the objectives to be achieved by the classification. There is one exceptional situation, however, which may produce an anomalous result. If the trial had just concluded before 02.10.2001, but the appeal is filed after 02.10.2001, it cannot be said that the appeal was pending as on the date of the coming into force the Amending Act, and the amendment would be applicable even in such cases. The observations of this court in Nallamilli’s case (supra) would apply to such a case. The possibility of such a fortuitous case would not be strong enough reason to attract the wrath of Article 14 and is constitutional consequences. Hence, we are unable to accept the contention that the proviso to Section 41 of the Amending Act is hit by Article 14.”

6. Amendment came into force on 2nd