Hari Pal Verma, J.

Appellant Dalip Singh has filed the present appeal against the judgment of conviction dated 02.06.2004 passed by learned Special Judge, Sonepat in case FIR No. 19, dated 05.03.2003, under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity "the NDPS Act"), registered at Police Station, Baroda.

Vide judgment of conviction dated 02.06.2004, learned Special Judge, Sonepat, had convicted the appellant for offence punishable under Section 20(b) of the NPDS Act and vide separate order dated 04.06.2004, sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- (Rs. One lac). In default of payment of fine, he was to further undergo rigorous imprisonment for a period of one year.

Facts of the case in brief are that on 05.03.2003 ASI Rajiv Kumar alongwith ASI Om Parkash and other police officials on the basis of a reliable secret information laid Nakabandi on the drain in the area of village Kathura where accused Dalip was seen coming from Katwara side. On seeing the police party he retraced his steps towards southern pavement of the drain. On suspicion he was apprehended and served with a notice under Section 50 of the Act, appraising his right to be searched before a Gazetted Officer or a Magistrate. Accused opted for search to be made by a Gazetted Officer. Accordingly a message was sent to Sh. Sham Singh Rana, DSP Gohana who reached the spot. During search of accused, 1 Kilogram of charas was recovered from his possession. Ruqa Ex.PB was sent to the police station, upon which FIR Ex.PB/1 was registered. Accused was charge sheeted for offence under Section 20(b) of the NDPS Act on 20.05.2003, to which he pleaded not guilty and claimed trial.

Prosecution in order to prove its case examined as many as eight witnesses namely DSP Sham Singh Rana, PW1; ASI Siri Kishan, PW2; C. Jagbir Singh, PW3; ASI Om Parkash, PW4; ASI Rajiv Kumar, PW5; Vijender Singh, SI/SHO, PW6; C. Rajesh Kumar 956, PW7 and ASI Ram Niwas as PW8. In statement under section 313 Cr.P.C., accused refuted the allegations against him and examined Satpal Singh, DW1 in his defence.

On appraisal of the available evidence, the learned Trial Court vide judgment dated 02.06.2004, held the accused guilty of offence under Section 20(b) of the NDPS Act and sentenced him vide order dated 04.06.2004 as aforesaid.

Learned counsel for the appellant submits that though the case relates to the non commercial quantity, however, learned trial court has awarded the sentence the appellant as if the quantity was commercial. He contends that after the amendment of the NDPS Act, vide Act No. 9 of 2001, the punishment was to be awarded as per amended Act. Imprisonment for 10 years was the maximum punishment which has been awarded in the present case.

Learned counsel for the appellant further contends that though during the pendency of the present appeal, appellant, namely, Dalip Singh had died, but his right to pursue the present appeal still survive and in support thereof, he relied upon a judgment of this Court in Bhupinder Singh Vs. State of Punjab, 2011(7) R.C.R.(Criminal) 130. He submits that in a case of NDPS Act, where conviction is challenged, on the death of appellant during the pendency of appeal, the whole appeal cannot abate. Only appeal qua the order of conviction and sentence in default of payment of fine shall abate. Hence appeal qua the payment of fine still survives. Therefore, he confined his arguments only on the issue of quantum of fine and does not challenge the conviction on merits.

On the other hand, learned counsel for the State submits that the petitioner was found in conscious possession of 1 kilogram charas. However, on the point whether the alleged recovery of contraband is commercial or noncommercial, he admits that the same is same is noncommercial, but more than the small one.

I have heard learned counsel for the parties and perused the record.

The recovery in the presen