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CASE NO.: Appeal (crl.)  1244-1245 of 2003

PETITIONER: STATE OF DELHI

RESPONDENT: JITTI

DATE OF JUDGMENT: 12/10/2007

BENCH: C.K. THAKKER & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

C.K. THAKKER, J.

1.              Both these appeals are filed by the  State of Delhi against judgment and order  passed by the High Court of Delhi in Criminal  Appeal Nos. 111 and 47 of 1999.  By the said  order, the High Court confirmed an order of  conviction recorded by the Additional Sessions  Judge, Delhi in Sessions Case No. 98 of 1996  dated October 14/October 21, 1998, but  restricted the sentence to the period already  undergone by the convict. 2.              Short facts of the case are that Didar  Singh, Circle Inspector along with Constable  Ram Karan was on patrolling duty on September  07, 1996.  At about 8.15 p.m., they reached  near car parking at old Lajpat Rai Market.   There they received secret information that two  persons aged about 35-40 years were likely to  come from the side of Bagichi Angoori Bagh and  they were possessing jute bags containing poppy  straw powder.  They would catch a bus going to  Punjab.  On receipt of such information, SI  Didar Singh organized a raid party along with  police officials and 4/5 persons from general  public.  At about 8.35 p.m., two persons were  apprehended.  Both of them were carrying two  jute bags on their heads.  On inquiry, one of  the accused disclosed his name as Jitti and the  other gave his name as Vaishnu Dass, resident  of District Hoshiarpur in Punjab.  The secret  information was then disclosed to both of them  and they were given option to be searched in  presence of Gazetted Officer or Magistrate.   They, however, declined the offer.  Thereafter  the search was carried out. From accused Jitti,  22 Kgs. of poppy straw powder was found whereas  from other jute bag 23 Kgs. of poppy straw  powder was recovered.  Thus in all, 45 Kgs of  poppy straw powder was found.  Samples were  taken from each jute bag and placed in two  bags. The remaining poppy straw powder was kept  in the same jute bags again.  Usual seals were  affixed.  Samples were then sent to Central  Forensic Science Laboratory. The result  disclosed that samples were found to contain  poppy straw powder.

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3.              After usual investigation, charges  were framed against the accused under Section  18 of the Narcotics Drugs and Psychotropic  Substances Act, 1985 (hereinafter referred to  as \021the Act\022).  The accused pleaded not guilty  to the charges levelled against him and claimed  to be tried. 4.              The Additional Sessions Judge, Delhi  after examining the evidence of witnesses  produced by the prosecution, by an order of  conviction recorded on October 14, 1998 held  that it was proved beyond reasonable doubt that  the accused was guilty of an offence punishable  under Section 18 of the Act.  The accused was  thereafter heard on the quantum of sentence and  finally on October 21, 1998 the Court imposed  punishment on the convict. The operative part  of the order reads thus;      \023The convict has been convicted  under Section 18 of the NDPS Act. The  offence under Section 18 of the NDPS  Act is punishable with rigorous  punishment for a term which shall not  be less than 10 years and shall also  be liable to fine which shall not be  less than Rs.1 lakh. As per the  provisions of Section 18 of the NDPS  Act, the minimum sentence is 10 years  RI and fine of Rs.1 lakh. The Court  has no discretion in the matter. Hence  the convict is sentenced with RI for  10 years and to pay a fine of Rs.1  lakh. In default of payment of fine to  undergo RI for 2 years. File be  consigned to record room\024.

5.              Being aggrieved by the order passed by  the trial Court, the accused preferred appeals  before the High Court of Delhi. As observed by  the High Court, the counsel for the accused was  \021not in a position to challenge the order of  conviction\022 and confined his arguments only on  the question of sentence.  It was submitted  that the accused was found in possession of     45 Kgs of poppy husk/powder.  Relying on the  provisions of Section 41 of the Act as amended  by the Narcotics Drugs and Psychotropic  Substances Act, 2001 [Act 9 of 2001], it was  submitted that as per the amended provision,  commercial quantity in respect of poppy husk  was 50 Kgs.  The accused was found to be in  possession of 45 Kgs. It was, therefore,  submitted that when the quantity was not  \021commercial quantity\022, rigorous imprisonment  for ten years was not the minimum punishment,  but the maximum punishment.  It was only in  respect of commercial quantity, the minimum  punishment was for ten years.  It was submitted  that the accused had already undergone 5= years  in jail and he should be released by passing an  appropriate order that the sentence undergone  by him was sufficient. 6.              Though it was contended by the learned  counsel for the State that the said provision  (Section 41 as amended by Act 9 of 2001) would

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not apply to cases pending in appeals, the High  Court held that a view was taken in Ginni Devi  v. State, that the amendment would also apply  to cases pending in appeal.  Accordingly, the  Court partly allowed the appeal, confirmed the  conviction but reduced the sentence of  imprisonment of the accused to imprisonment  already undergone and directed to set him at  liberty forthwith if not wanted in any other  case.  The accused was, therefore, set at  liberty pursuant to the above order of the High  Court. 7.              Being aggrieved by the order passed by  the High Court, the State approached this  Court. 8.              On March 3, 2003, when the matter was  placed for admission hearing, it was found that  there was delay of 209 days in filing the  special leave petition in this Court.  Notice  was, therefore, issued for condonation of delay  as also on special leave petitions.  Interim  stay of the operation of the judgment was also  granted and bailable warrants were issued.   Since the warrants were not served, non- bailable warrants were issued on July 7, 2003.   Direction was also issued to the Commissioner  of Police, Delhi to execute them.  On September  8, 2003, when the matter came up before this  Court, it was noted by the Court that though  non-bailable warrants were issued, they could  not be executed.  No report of the Commissioner  of Police in regard to the steps taken was  filed.  A direction was, therefore, issued to  the Commissioner of Police, Delhi to file  report within two days as to compliance of  earlier order.  Actions were thereafter taken  to locate the respondent and finally warrants  were executed. On September 26, 2003, delay was  condoned, leave was granted. Since the  respondent was arrested, meanwhile, he was  ordered to be released on bail on his  furnishing self bond of Rs.1,00,000/- (rupees  one lakh) with two sureties each for the like  amount to the satisfaction of the trial Court.   It appears that the respondent could not  furnish surety as per the order of this Court  and therefore could not be released on bail.  A  prayer was, therefore, made on his behalf to  hear the matter finally. 9.              We have heard the learned counsel for  the parties. 10.             It was submitted by the learned  counsel for the State that the High Court was  not right in applying Section 41 of the Act as  amended in 2001 to the present case. It was  urged that proviso to sub-section (1) of  Section 41 is explicitly clear and expressly  states that \023it will not apply to cases pending  in appeal\024. Section 41, as amended by Act 9 of  2001 reads thus; \02341. Application of this Act to  pending cases.-(1) Notwithstanding  anything contained in sub-section (2)  of section 1, all cases pending before  the courts or under investigation at

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the commencement of this Act shall be  disposed of in accordance with the  provisions of the principal Act as  amended by this Act and accordingly,  any person found guilty of any offence  punishable under the principal Act, as  it stood immediately before such  commencement, shall be liable for a  punishment which is lesser than the  punishment for which he is otherwise  liable at the date of the commission  of such offence: Provided that nothing in this section  shall apply to cases pending in  appeal. (2) For the removal of doubts, it is  hereby declared that no act or  omission on the part of any person  shall be punishable as an offence  which would not have been so  punishable if this Act has not come  into force\024.  11.             He, therefore, submitted that the  appeal deserves to be allowed. 12.             Learned amicus curiae for the  respondent-accused submitted that the High  Court was right in passing the impugned order.   The High Court had also taken a similar view in  other cases. It was alternatively urged that on  the facts and in the circumstances of the case,  the respondent had undergone about ten years of  rigorous imprisonment. Therefore, the appeal  may be disposed of leaving the question open. 13.             We have given our anxious  consideration to the contentions raised by the  parties.  From the record, however, it appears  that the incident took place on September 7,  1996 and on the same day, the respondent was  arrested.  It is stated by the respondent in  Criminal Miscellaneous Petition Nos. 10614- 10615 of 2007 filed in this Court with the  affidavit that he was in jail from September 7,  1996 from the day he was arrested till the  final order was passed by the High Court of  Delhi on April 2, 2002.  Thus, he was in jail  for more than 5= years.  The said fact is also  noted by the High Court while disposing the  appeal.  It was further stated in the affidavit  that after the special leave petition was filed  by the State in this Court, he was again  arrested.  From the two affidavits filed by V.  Renganathan, Deputy Commissioner of Police  (Headquarters), I.P. Estate, New Delhi dated  September 10, 2003 and September 24, 2003, it  appears that the respondent was arrested on  September 23, 2003. This Court, no doubt,  passed an order releasing him on bail. In view  of the fact, however, that the respondent could  not comply with the conditions of bail, he was  not released on bail and till today, he is in  jail. Thus he is in jail since about ten years. 14.             Taking into account the totality of  facts and circumstances and factual scenario,  namely, that the respondent-accused is in jail  since \021about\022 ten years, the High Court partly

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allowed his appeal and ordered to release him,  the present appeal challenging the said  decision is filed by the State, the respondent  could not be released on bail as he was unable  to furnish sureties, in our opinion, ends of  justice would be met if without expressing  final opinion on the question of law raised  before us, we dispose of the appeals observing  that since the respondent had undergone  sentence of \021almost ten years\022, he should be  set at liberty unless he is required in any  other offence. As and when the question raised  in these appeals will come up for consideration  in an appropriate case, it will be decided on  its own merits. 15.             In view of the order passed above, the  appeals as well as Criminal Miscellaneous  Petition Nos. 10614-10615 of 2007 stand  disposed of.