( 1 ) THIS writ petition preferred under Art. 226 of the Constitution of India was instituted at the instance of the petitioner who has been convicted under Section 20 (b) (ii) of the Narcotic Drugs and Pshychotropic Substances Act, 1985 (in short 'the NDPS Act') and sentenced to undergo rigourous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/-, in default, to suffer further rigourous imprisonment for a period of three years in special Case No. 6/99 by the learned Special Judge, NDPS, Indore. Being aggrieved by the said judgment of conviction he has preferred a Criminal Appeal No. 151/2000 in the High Court at Indore Bench which is pending for disposal. While suffering incar ceration he sent the present application challenging the constitutional validity of section 41 of the NDPS (Amendment) Act, 2001 (Act No. 9 of 2001 ). As the writ petition was instituted on the basis of the application received from the convict from Jail we thought it appropriate to engage an amicus curiae to assist us, and accordingly we are appointing Mr. S. C. Datt, learned senior counsel as the friend of the Court.

( 2 ) AFTER notices were issued Mr. R. S. Patel, learned senior standing counsel for union of India and Mr. S. K. Yadav, learned government Advocate appeared and argued the matter.

( 3 ) BEFORE we proceed to deal with the contentions which have been proponed before us we think it condign to briefly refer to the facts and averments that have been made in the petition. It is urged that the petitioner was found in possession on 470 gms. of Charas and the charge having been proved he has been convicted as has been indicated hereinabove. As per the amending provision the Legislature has categorised three types of articles, namely, small quantity, commercial quantity and more than small quantity and less than commercial quatity. If a person is found in possession of small quantity the punishment is for six months and if it is commercial quantity then sentence would not be less than 10 years and fine not less than Rs. 1 lac. As far as third category is concerned the punishment would be rigourous imprisonment which may extend to 10 years and the fine amount upto Rs. 1 lac. It is pleaded in the petition that the finding recorded against him with regard to possession of 470 gms. of Charas would bring it in the third category as per the notification issued on 19-10-2001. The grievance of the petitioner is that Section 41 of the Amendment Act of 2001 lays a postulate that nothing that has been stated in the said section would apply to the cases pending in appeal and thereby a classification is created which is not only arbitrary and unreasonable thereby defiant of Art. 14 of the Constitution but also offends Art. 21 of the Constitution.

( 4 ) PRESENTLY we think it seemly to refer to the provisions and thereafter enumerate the submissions advanced at the Bar. The amendment Act of 2001 came into force on 19-10-2001. Section 2 of the Principal Act has been amendment and certain clauses have been inserted. The inserted clause deals with commercial quantity and small quantity. Section 20 of the Principal Act has been substantially amended. The amended provision read as under :" (I) where such contravention relates to clause (a) with rigourous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b ). (A) and 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) and involves quantity less than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but w