JUDGMENT

ANU MALHOTRA, J.

1. The applicant, Sheikh Anwar S/o Sh. Abdul Aziz, vide the present appeal Crl. A. No. 1111/2016 seeks the setting aside of the impugned judgment and order on sentence dated 14.09.2016 and 15.09.2016 of the Court of the learned ASJ-02, East, Special Judge, NDPS, KKD in Sessions Case No. 1367/16, P.S Crime Branch, FIR No.217/11, under Section 21(c) of the NDPS Act, 1985.

2. Notice of the appeal was issued to the State and the appeal was admitted vide order dated 23.11.2016. The Crl.M.B. 2084/2016 filed by the appellant seeking suspension of sentence was at that stage vide order dated 23.11.2016 declined.

3. Vide the impugned judgment dated 14.09.2016 of the Court of the learned Special Judge, NDPS, KKD, Delhi in FIR No.217/2011, PS Crime Branch, the appellant was convicted for the commission of an offence punishable under Section 21(c) of the NDPS Act, 1985 holding to the effect that he was found in possession of 1.5 Kgs of heroin, that is a commercial quantity in terms of the Schedule to the NDPS Act, 1985.

4. Vide the impugned order on sentence dated 15.09.2016, the appellant was sentenced to ten years of rigorous imprisonment with a fine of Rs.1,00,000/- and in default of the payment of the said fine to undergo one year of rigorous imprisonment with the benefit of Section

428 of the Cr.P.C., 1973 having been given to the appellant.

5. Section 21(c) of the NDPS Act, 1985 Act, 1985 provides to the effect:-

“21. Punishment for contravention in relation to manufactured drugs and preparations………

(a) ………

(b) ………..

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees”.

Thus, for a contravention of the provisions of the NDPS Act, 1985 or any rule or order made thereunder and consequential inter alia possession of any manufactured drug or any preparations containing any manufactured drug where the contravention involves a commercial quantity, a minimum rigorous imprisonment of ten years which may extend to twenty years and a minimum fine of Rs.1 Lakh which may extend to Rs.2 Lakhs has been mandated with it having been provided however that a fine exceeding Rs.2 Lakhs may be imposed for reasons to be recorded in the judgment.

6. The appellant in the instant case as per the Nominal Roll dated 21.05.2022 received from the Superintendent of Prisons, Central Jail No.14, Mandoli, Delhi had till that date undergone ten years of the substantive sentence of rigorous imprisonment, and on that date, had also undergone eight months and twenty nine days of the incarceration for the fine sentence, and on that date, the appellant had yet to complete three months and one day of the fine sentence in the event of the fine not having been paid. The appellant has apparently not paid the fine, the period of his fine sentence too has to elapse on

21.08.2022 with it being 17.08.2022 today.

7. As regards the conviction of the appellant for having been found in possession of heroin on 19.11.2012 at about 11.30 AM near the Bus Stand, Ramesh Park, Pusta Road, near Shakarpur, though the appellant vide the instant appeal assailed the conviction and sentence imposed vide the impugned judgment dated 14.09.2016 and the impugned order on sentence dated 15.09.2016 submitting to the effect:-

 that whereas the learned Trial Court had held the appellant guilty of an offence punishable under Section 21(c) of the NDPS Act, 1985, the appellant had been sentenced by the learned Trial Court for an offence punishable under Section

20(c) of the NDPS Act, 1985;

 that the learned Trial Court did not consider that the arrest of the appellant was illegal;

 that the learned Trial Court did not appreciate that the recovery witn