Darshan Singh, J.Mr. Akashdeep Singh, Advocate has put in appearance on behalf of the appellant and has filed his vakalatnama which is taken on record. Custody certificate of the appellant has been filed in Court today. The same is taken on record.

2. The present appeal has been preferred against the judgment dated 10.1.2002 passed by Sh. R.K. Kashyap, the then learned Additional Sessions Judge, Rohtak, vide which the appellant has been held guilty and convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the "NDPS Act").

3. As per the prosecution allegations, on 23.2.1998, PW-5 SI Randhir Singh along with other police employees were present at Bus Stand Madina, Distt. Rohtak in connection with general patrol duty. He received a secret information that the appellant indulges in illegal trade of charas/smack and is selling the charas at his house and if a raid is conducted, he can be caught red handed. The Investigating Officer formed a raiding party and reached at the house of the accused where he was found present. He served the notice under Section 50 of the NDPS Act upon the accused seeking his option as to whether he would like to be searched by him or by some Gazetted Officer/Magistrate. Accused exercised his option vide memo (Ex. PD/1) for his search in the presence of some Gazetted Officer. The Investigating Officer informed PW-6 Nafe Singh, DSP, Meham, who arrived at the spot. The facts were disclosed to him. The search of the accused was conducted in his presence in accordance with law. The accused was found in possession of charas in a bag. On weighing, the said charas came to 1 Kg. Out of that, 100 gm charas was separated as sample. Separate sealed parcels of the sample and remaining charas were prepared and sealed with the seal bearing impression KS. Seal after use was handed over to ASI Ki-tab Singh. DSP Nafe Singh also affixed his seal bearing impression NS on both the parcels. The said parcels were taken into possession vide memo Ex. PE. The Investigating Officer sent ruqa Ex. PF to the Police Station on the basis of which formal FIR (Ex. PF/1) was registered. The Investigating Officer prepared the rough site plan Ex. PG. The case property was deposited with MHC Sube Singh, Police Station, Meham, on the same day. The sample parcels were sent to Forensic Science Laboratory, Madhuban for examination. On completion of the investigation, report under Section 173 Cr.P.C. was submitted in the Court.

4. Accused appellant was charge-sheeted for the offence punishable under Section 20 of the NDPS Act to which he pleaded not guilty and claimed trial.

5. In order to substantiate its case, the prosecution examined as many as six witnesses.

6. When examined under Section 313 Cr.P.C., accused pleaded that SI Randhir Singh, Investigating Officer of the case, forcibly occupied a plot belonging to the Punjab Wakf Board at Meham. He asked him to fill the earth in the said plot but he declined. On 23.2.1998, he was on the way back to Meham after dropping sugarcanes in the Sugar Mill Rohtak. SI Randhir Singh met him. He took him, his father and brother in the police station along with tractor and falsely planted the recovery. The appellant also examined Jai Singh and Jaidev Singh as D.W.-1 and D.W.-2 respectively in his defence evidence.

7. On appreciating the evidence on record and the contentions raised by the learned counsel for the parties, the learned trial Court held guilty and convicted the accused/appellant for the offence punishable under Section 20 of the NDPS Act for having been found in possession of 1 Kg of charas. He was sentenced to undergo rigorous imprisonment for a period of 10 years and was also ordered to pay a fine of Rs. 1,00,000/-. In default of payment of fine, he was ordered to further undergo rigorous imprisonment for a period of one year.

8. Aggrieved with the aforesaid judgment of conviction and order of sentence, the present appeal has been preferred.

9. I have heard learned counsel for the parties and have meticulously gone through the record.

10. Mr. Akshadeep Singh, Advocate, learned counsel for the appellant contended that he does not challenge the conviction. The appellant has already undergone more than three years imprisonment. The case relates to non-commercial quantity. The learned trial Court has awarded the sentence as if the quantity was commercial. He further contended that after amendment of NDPS Act, vide Act No. 9 of 2001, the punishment was to be awarded as per the amended Act. Imprisonment for 10 years was the maximum punishment which has been awarded in this case. He contended that the appellant has faced the agony of the trial for the last 16 years. He has undergone sufficient punishment. So, pleaded for the reduction of sentence to the sentence already undergone.

11. On the other hand, learned State counsel pleaded that the appellant was found in possession of 1 Kg charas though the same is non-commercial quantity but the sentence awarded by the learned trial Court is just and appropriate.

12. I have duly considered the aforesaid contentions.

13. Learned counsel for the appellant has not challenged the conviction. He has confined himself only to assail the order on quantum of sentence. Even then this Court is required to satisfy itself as to whether the conviction of the appellant has been rightly recorded by the learned trial Court or not.

14. In order to substantiate its case, prosecution has examined PW-4 ASI Kitab Singh, PW-5 SI Randhir Singh, the Investigating Officer of the case and PW-6, the then DSP Nafe Singh, on the point of recovery. All of them have given the consistent version about the recovery of 1 Kg charas from the possession of the accused appellant. PW-4 ASI Kitab Singh and PW-5 SI Randhir Singh, have deposed in detail the manner in which the appellant was apprehended. He was given the option for his search in the presence of the Magistrate or the Gazetted Officer. The appellant opted for search in the presence of the Gazetted Officer. So, PW-6, the then DSP Nafe Singh was informed and requested to come at the spot. Thereafter, the search was conducted in the presence of PW-6 DSP Nafe Singh and the recovery was effected.

15. Learned counsel for the appellant has not been able to point out any material contradictions in their statements. The link evidence is also complete. Thus, the conviction of the appellant has been rightly recorded by the learned trial Court.

16. I found substance in the contentions raised by the learned counsel for the appellant on the quantum of sentence. The recovery in this case has been effected on 23.2.1998. The learned trial Court has decided the case on 10.1.2002. The NDPS Act was amended vide The Narcotic Drugs and Psychotropic Substances Amended Act, 2001 i.e. Act No. 9 of 2001 (9th May, 2001). Act No. 9 of 2001 came into force in October, 2001. So, the present case has been decided after the enforcement of Act No. 9 of 2001. Section 41 of Act No. 9 of 2001 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 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."

17. As per the aforesaid provisions of law, where the case was pending before the trial Court, the sentence was to be awarded as per the Amended Act. So, in the instant case, the sentence was to be awarded as per the Amended provisions of the NDPS Act vide Amended Act No. 9 of 2001.

18. As per the prosecution allegations, 1 Kg charas has been recovered from the appellant. It has not been disputed at Bar that the recovery of 1 Kg charas does not fall within the definition of the commercial quantity as the same is not greater than the quantity specified by the Central Govt. vide notification issued by it. Thus, the quantity of the charas recovered from the appellant was noncommercial quantity and the punishment was to be awarded as per Section 20 Sub-section (b)(ii)(B). As per this provision of law, the maximum sentence is 10 years and with fine which may extend to Rs. 1,00,000/-. So, in the instant case, learned trial Court has awarded the maximum sentence provided for the offence. The present case was registered on 23.2.1999. Now we are in the end of the year 2014. The appellant has undergone the agony of these proceedings for more than 16 years. As per his statement on quantum of sentence recorded by the learned trial Court, he has small children and old mother. His father has already died. There is also no material on file to show that after the present case, the appellant had indulged in any such criminal activity. Thus, in these circumstances, even the lenient view in the matter of sentence will suffice to meet an ends of justice. As per the custody certificate placed on record by the learned State counsel, he has already undergone the actual sentence for a period of 3 years and 18 days which is quite sufficient. The fine of Rs. 1,00,000/- imposed by the learned trial Court is also excessive and requires to be reduced. Thus, keeping in view my aforesaid discussion, the conviction of the appellant recorded by the learned trial Court is hereby maintained. However, the order on quantum of sentence dated 10.1.2002 stands modified. The appellant is sentenced to the imprisonment already undergone by him i.e. 3 years and 18 days. He is also ordered to pay a fine of Rs. 20,000/-. He is given time of one month from today to deposit the amount of fine with the learned trial Court failing which he will undergo rigorous imprisonment for a period of six months. With this modification in the quantum of sentence, the present appeal is hereby dismissed.