Naresh Kumar Sanghi, J. - (1.) CHALLENGE in this criminal appeal is to the judgment of conviction and the order of sentence dated 23.7.2003, passed by the learned Special Judge, Fatehgarh Sahib, whereby the appellant, Sukhwinder Singh, aged about 22 years, was held guilty for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, 'the NDPS Act') and ordered to undergo rigorous imprisonment for ten years, besides payment of fine of Rs. 1,00,000/ - and in default thereof to undergo further rigorous imprisonment for one year.
(2.) AT the very outset, learned counsel for the appellant submits that he does not challenge the conviction of the appellant under Section 18 of the NDPS Act, however, he submits that 1 Kg. of opium was allegedly recovered from the appellant on 25.4.2000 and the judgment of conviction and the order of sentence was passed on 23.7.2003; in the meantime in the year 2001, the NDPS Act was amended and the quantity of 21/2 Kgs. of opium was declared as 'non -commercial'; as per Appendix -I appended to the NDPS Act, the punishment of the appellant could be rigorous imprisonment up to ten years and he could be burdened with a fine up to Rs. 1,00,000/ - only; and that the learned Trial Court had not considered the amendment in the NDPS Act carried in the year 2001 and presumed that the quantity of 1 Kg. of opium so recovered from the appellant, would fall within the ambit of 'commercial' quantity, therefore, the appellant was awarded maximum sentence of rigorous imprisonment for ten years besides fine of Rs. 1,00,000/ -. In view of his submissions, learned counsel for the appellant prays that 1 Kg. of opium allegedly recovered from the dickey of the scooter of the appellant would be of 'non -commercial' quantity and, as such, he could be awarded the maximum sentence of imprisonment up to ten years besides payment of fine of Rs. 1,00,000/ -. He further submits that the appellant is neither required nor involved in any other case relating to the NDPS Act; he is also not a previous convict; he has already suffered the agony of the trial and the appeal for more than 14 years; and that he has also suffered incarceration for more than two years, therefore, his substantive sentence and the amount of fine be reduced. Learned counsel for the State very fairly concedes that the opium so recovered from the appellant would attract the provision of 'non -commercial' quantity and, as such, the maximum sentence up to ten years could be awarded and not the minimum rigorous imprisonment for ten years. He further admits that the fine could also be imposed up to Rs. 1,00,000/ - and not the minimum Rs. 1,00,000/ -. He further admits that the learned Trial court has wrongly taken the view that the opium allegedly recovered from the appellant would attract the provision of 'commercial' quantity. However, he submits that the appellant has been ordered to undergo rigorous imprisonment for ten years, besides payment of fine of Rs. 1,00,000/ - and in default thereof to undergo further rigorous imprisonment for one year, therefore, the substantive sentence and the order of fine passed by the learned Trial Court was within its jurisdiction.
(3.) I have heard learned counsel for the parties and with their able assistance gone through the material available on record.;