IN THE SUPREME COURT OF INDIA        CRIMINAL APPELLATE JURISDICTION        

                  CRIMINAL APPEAL NO(S).1895  OF 2008         (Arising out of S.L.P.(Crl.)No(s)3404 of 2008)

  MD. MASUK ALI @ KULU        .....      Appellant

VERSUS

  STATE OF ASSAM                           .....      Respondents

 O R D E R

Leave granted.

Delay condoned.

The  appellant  was  convicted  under  Section  21  of  the  Narcotic  Drugs  and  

Psychotropic  Substances Act,  1985 (for short,  'the NDPS Act')  and sentenced to 10  

years rigorous imprisonment and fine of Rs.1 lac, in default to suffer further  rigorous  

imprisonment for 5 years.

According to the prosecution, the appellant was found with 3 bags containing in  

total 125 gms. of brown sugar.  Two of the bags contained 50 gms., whereas the third  

bag contained 25 gms.   of the contraband.  The conviction and sentence of the learned  

Special Judge was affirmed by the High Court, against which judgment the appellant  

has filed the present appeal.

..2/-

.2.

Mr. Harpreet Singh Sandhu, learned Advocate who has appeared in the matter  

as Amicus Curiae, submitted that the appellant had already undergone the substantive  

sentence of 10 years, and since he was unable to pay the fine, he is still undergoing  

imprisonment for the default period for about one year.

The only submission that he has advanced is that since the appellant has already  

undergone  the  substantive  sentence,  this  Court  may  consider  reducing  the  default  

period to the period already undergone.

The prayer made by Mr. Sandhu has been opposed on behalf of the respondent,  

State of Assam, on the ground that since the provisions of the aforesaid Act were meant  

to be stringent, no leniency should be shown to the appellant in the matter.

Having considered the submissions made on behalf of the respective parties, and  

since the appellant has been convicted under the provisions of Section 21(1)(b), which  

relates to being found in possession of brown sugar (heroin) of less than the commercial  

quantity, which according to the Table (in the Notification dated 16.7.96) is 250 gms,  

and having  regard  to  the  fact  that  the  appellant  has  been awarded the  maximum  

sentence under Section 21(1)(b), we are of the view  that  the  sentence  with  regard  to  

the default may be

..3/-

.3.

reduced in the  facts  and circumstances  of  the  case.   The  appellant  was admittedly  

found  in  possession  of  125  gms.  of  the  contraband,  which  is  half  the  commercial  

quantity prescribed under the Table.

In that view of the matter, we allow the appeal and reduce the default period of  

sentence to the period already undergone.

The appeal is, accordingly, allowed.

Let the appellant be released forthwith.

        ...............J.

  [ALTAMAS KABIR]

  ...............J.    [MARKANDEY KATJU]

NEW DELHI November 28, 2008.