SARRAF, J. - (1.) THIS accused appellant has filed this appeal against the judgment dated 27. 3. 2003 passed by Special Judge (N. D. P. S. Act), Bundi in sessions case No. 30/2000 whereby he has been convicted under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the `act') and he has been sentenced to ten years rigorous imprisonment and a fine of rupees one lakh and in default of payment of the fine further rigorous imprisonment for six months.
(2.) THE charge against the accused appellant is that on 11. 3. 2000 heroin weighing 400 milligrams was recovered from his possession. THE prosecution examined nine witnesses including Gordhan Lal Nagar PW. 1 who searched the accused appellant and made the recovery of the heroin. In his statement recorded under Section 313 Cr. P. C. the accused appellant denied the recovery. He did not lead any evidence in defence. After hearing the parties learned trial Court convicted and sentenced the accused appellant in the manner as stated hereinabove. Aggrieved, the accused appellant has filed this appeal. Learned counsel for the accused appellant does not question the legality of the conviction of the accused appellant under Section 8/21 of the Act and his only submission is that less than half a gram heroin has been recovered from the possession of the accused appellant which is a small quantity for which after the amendment in the Act in 2001 he can be sentenced to imprisonment for a maximum period of six months under the amended Section 21 (a) of the Act and since the accused appellant has already undergone imprisonment for about five years and nine months, therefore, he deserves to be set free immediately. Learned public prosecutor opposes the prayer. It is not disputed that only 400 milligrams heroin has been recovered from the possession of the accused appellant and, therefore, the only controversy involved in this appeal is whether the amendment coming into force on 2. 10. 2001 in the Act is applicable to the present appeal or not. The provisions of the Act were amended by the Amending Act 9 of 2001, which rationalised the structure of punishment by providing graded sentences linked to the quantity of narcotic drug or psychotropic substance in relation to which the offence was committed. As a consequence of the Amending Act coming into force on 2. 10. 2001, the sentencing structure has undergone a drastic change. Under the rationalished structure the punishment varies depending on whether the quantity of offending material is `small' or `commercial' or something in between.
(3.) SECTION 41 (1) of the Amending Act 9 of 2001 is the SECTION which determines the application or exclusion of the amending provisions and reads as under:-      " Notwithstanding anything contained in sub-section (2) of SECTION 1, all cases pending before the Courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principle 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. " By this Section the Parliament has declared its intention to apply the amended provisions of the Act to (a) all cases pending before the Court on 2. 10. 2001; (b) all cases under investigation as on that date and the benefit of rationalised sentencing structure has been made applicable to these categories. The proviso, however, makes an exception and excludes the application of the rationalised sentencing structure to cases pending in appeal. In the cases of pending trials and cases pending investigation the trial is yet to conclude hence the retrospective mollification of the rigour of punishment has been made applicable but in the cases where the trials have been concluded and appeals are pending the application of the amended Act appears to have been excluded. ;