STATE OF DELHIversusJITTI

                                STATE OF DELHI                               A
                                         V.
                                       nm
                               OCTOBER 12, 2007

                [C.K. THAKKER AND ALTAMAS KABIR, JJ.]
                                                                            B


             Narcotic Drugs and Psychotropic Substances Act, 1985:

              ss.18 & 41(As amended in 2001)-Accusedfoundinpossession C
        of 45 kgs ofpoppy straw powder-Conviction by Trial Court with
        purported minimum punishment of RI for 10 years-Accused filed
         appeal-Meanwhile s.41 amended-Relying on amended s. 41, accused
         challenged quantum of sentence imposed-He contended that
         minimum punishment was RIfor 10 years only in respect ofrecovery
        of 'commercial quantity' but quantity recovered from accused being D
        less than 50 Kgs was not 'commercial quantity'-High Court ordered
        release of accused by restricting his sentence to the period already
         undergone-Supreme Court granted interim stay of operation of the
        judgment-Accused again arrested-Supreme Court, however, ordered
    •   his release on bail on his furnishing self bond with two sureties- E
        Accused unable to furnish surety, hence not released-Accused in jail
        for last about 10 years-Question raised by State before Supreme Court
        over applicability ofamended s. 41 to cases pending in appeal-Held:
        No final opinion expressed on the question-On facts and in interest
         ofjustice, accused acquitted as he had already undergone sentence of F
        almost 10 years.

            Respondent was found in possession of 45 kgs of poppy straw
        powder. Trial Court convicted him under s.18 ofthe Narcotic Drugs
        and Psychotropic Substances Act, 1985 and sentenced him to suffer G
        minimum punishment of RI for 10 years.

            Respondent filed appeal before High Court. Meanw~ile Section
)       41 of the Act was amended. Relying on the amended Section 41,

                                        133                                  H
    134           SUPREME COURT REPORTS               [2007] 11 S.C.R.


A Respondent challenged the quantum of sentence imposed. He                 ~
  contended that minimum punishment of RI was for 10 years only in
  respect of recovery of 'commercial quantity' but the quantity
  recovered from Respondent being less than 50 Kgs was not
  'commercial quantity'. High Court ordered r:elease of Respondent
B by restricting his sentence to the period already undergone.
       Aggrieved State approached this Court which granted interim
  stay of the operation of th~ judgment. Respondent was again               ;-
  arrested. This Court, however, ordered Respondent to be released
  on bail on his furnishing self bond of Rupees One lakh with two
C sureties. Respondent could not furnish surety and therefore was not
  released. He is in the jail for the last about 10 years.
       It was submitted by the State that the High Court was no~ right
  in applying Section 41 of the Act [as amended in 2001 J to the present
D case since proviso to sub-section (1) of Section 41 explicitly and
  expressly states that it will not apply to cases pending in appeal.
          Disposing of the appeals, the Court
       HELD: Taking into account the totality of facts and
E circumstances and factual scenario, namely, that the respondent-
  accused is in jail since about ten years, the High Court partly 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, ends of justice
F would be met if without expressing final opinion on the question of
  law raised before this Court, the appeals are disposed of with the
  observation that since the respondent had undergone sentence of
  almost ten years, he should be set at liberty unless he is required in
  any other offence. [Para 14) [139-E-FJ
G       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
    1244-1245 of 2003.

        From the Judgment and Order dated 8.4.2002 of the High Court        -~
    of Delhi at New Delhi in Crl. A. Nos. 111and47of1999.

H
              STATE v. JITTI [C.K. THAKKER, J.]                      135

    Ashok Bhan, Varuna Bhandari Gugnani and D.S. Mahra for the A
Appellant.
     Binay Kumar Das (A.C.) for the Respondent.
     The Judgment of the Court was delivered by
                                                                           B
     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 47of1999. 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
14/0ctober 21, 1998, but restricted the sentence to the period already C
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 D
Rai Market. There they received secret information that two persons aged
about 35-40 years were likely to come from the side ofBagichi Angoori
Bagh and they were possessing jute bags containing poppy straw powder.
They would catch a bus going to Punjab. On receipt of such infonnation,
SI Didar Singh organized a raid party along with police officials and 4/5 E
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 Pui~ab.
The secret information was then disclosed to both of them and they were F
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 str·aw 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 G
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. TlJe
result disclosed that samples were found to contain poppy straw powder.
     3. After usual investigation, charges were framed against the accused H
    136           SUPREME COURT REPORTS                  [2007] 11 S.C.R.
                                                                                +
A under Section 18 of the Narcotics Drugs and Psychotropic Substances
    Act, 1985 (hereinafter referred to as 'the Act'). 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
B
  recorded on October 14, 1998 held that it was proved beyond reasonable
  doubt that the accused was guilty of an offence punishable under Section
                                                                                .i--
  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;
c
              "The 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
D         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 ofRs.l
          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".
E
        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 'not in a position to
  challenge the order of conviction' and confined his arguments only on the
F 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                  y
                                                                                   I
  Psychotropic Substances Act, 2001 [Act 9 of2001], it was submitted
  that as per the amended provision, commercial quantity in respect of
G 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
  'commercial quantity', 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
H submitted that the accused had already undergone 5Y2 years in jail and
                     STATEv. JITTI [C.K. THAKKER,J.]                        137

       he should be released by passing an appropriate order that the sentence A
       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 of2001) would
       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 B
       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 C
       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 D
        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 E
        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 F
-~     direction was, therefore, issued to the Commissioner of Police, Delhi to
 --r   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 an·ested, meanwhile, he was ordered G
       to be released on bail on his furnishing self bond ofRs. l,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 \Vas, therefore, made on his behalf to hear the matter H
    138             SUPREME COURT REPORTS                    [2007] 11 S.C.R.


A 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
B 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 "it will not apply
  to cases pending in. appeal". Section 41, as.amended by Act 9 of2001
  reads thus;
             "41. Application of this Act to pending cases.-(1)
c            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
D            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:
E            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
F            into force".

          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
G 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 ofrigorous imprisonment Therefore, the appeal
  may be disposed of leaving the question open.
H         13. We have given our anxious consideration to the contentions
    \
    +
                       STATE v. JITTI [C.K. THAKKER, J.]                        139
)
        raised by the parties. From the record, however, it appears that the incident A
        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 of2007 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. B
        Thus, he was in jail for more than 512 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), LP. Estate, c
        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 D
        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 'about1
        ten years, the High Court partly allowed his appeal and ordered to release
        him, the present appeal challenging the said decision is filed by the State, E
        the respondent could not be released on bail as he was unable to furnish
        sureties, in our opinion, ends ofjustice 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
        'almost ten years', he should be set at liberty unless he is required in any F
        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 G
        Miscellaneous Petition Nos. 10614-10615 of2007 stand disposed of.
        B.B.B.                                              Appeals disposed of