Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 910 OF 2009
[Arising out of SLP (Crl.) No. 7944 of 2008]
Jawahar Singh @ Bhagat Ji …Appellant
Versus
State of GNCT of Delhi …Respondent
J U D G M E N T
S.B. SINHA, J :
1. Leave granted.
2. Interpretation of an amendment made in the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short “the Act”) by reason of the
Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act
No. 9 of 2001) (for short “the Amending Act”) which has come into effect
from 2.10.2001 is the question involved in this appeal.
3. The said question arises in the following factual matrix.
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On or about 26.09.1999, one Attar Singh, Sub-Inspector received a
secret information that the appellant herein would come to a place known as
Yamuna Pusta to deliver a consignment of smack. On the basis of the said
information, he sent an intimation to the Asstt. Commissioner of Police,
Narcotics Branch, whereupon he was directed by the Station House Officer
to conduct a raid.
At about 12.15 p.m. on the said date, allegedly, the appellant was
apprehended at the given place. He is said to have been provided with an
option for getting himself searched before a Magistrate or a Gazetted Officer
wherefor a notice under Section 50 of the Act was served. However, as he
had not opted to be searched before a Magistrate/ Gazetted Officer, the
appellant was searched by Sub Inspector Atar Singh.
Upon search of his person, 600 gms. of smack was recovered.
Appellant was prosecuted under Section 21 of the Act. He was sentenced to
undergo rigorous imprisonment for ten years. Fine of Rs.1,00,000/- was
also imposed upon him.
4. Appellant preferred an appeal thereagainst, which by reason of the
impugned judgment dated 23.03.2007 has been dismissed.
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5. This Court by an order dated 22.09.2008 issued a limited notice with
regard to the question as to whether the quantum of sentence imposed upon
the appellant was required to be considered having regard to the amendment
carried out by the Parliament in the year 2001 in the Act.
6. Gp. Capt. Karan Singh Bhati, learned counsel appearing on behalf of
the appellant, would contend that the Amending Act being a beneficient
legislation so far as an accused is concerned, the same will have a
retrospective effect. In any event, it was urged, this Court while considering
the question with regard to quantum of sentence should consider the effect
thereof having regard to the fact that the appellant is in custody for a long
period.
7. Ms. K. Amreshwari, learned senior counsel appearing on behalf of the
State, on the other hand, would support the impugned judgment.
8. The offence indisputably took place on 26.09.1999. Appellant was
convicted by a judgment dated 5.11.2000. As indicated hereinbefore, the
Amending Act came into force on 2.10.2001. By reason of the said
amendment, “commercial quantity” and “small quantity” were defined as
under:
“2(viia) "commercial quantity", in relation to
narcotic drugs and psychotropic substances, means
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any quantity greater than the quantity specified by
the Central Government by notification in the
Official Gazette;”
2(xxiiia) "small quantity", in relation to narcotic
drugs and psychotropic substances, means any
quantity lesser than the quantity specified by the
Central Government by notification in the Official
Gazette.”
9. Section 21 of the Act, which was also amended by Section 8 of the
said Amending Act, reads as under:
“21. Punishment for contravention in relation to
manufactured drugs and preparations
Whoever, in contravention of any provision of this
Act or any rule or order made or condition of
licence granted thereunder, manufactures,
possesses, sells, purchases, transports, imports
inter-State, exports inter-State or uses any
manufactured drug or any preparation containing
any manufactured drug shall be punishable,--
(a) where the contravention involves small
quantity, with rigorous imprisonment for a term
which may extend to six months, or with fine
which may extend to ten thousand rupees, or with
both;
(b) where the contravention involves quantity,
lesser than commercial quantity but greater than
small quantity, with rigorous imprisonment for a
term which may extend to ten years and with fine
which may extend to one lakh rupees;
(c) where the contravention involves commercial
quantity, with rigorous imprisonment for a term
which shall not be less than ten years but which
may extend to twenty years and shall also be liable
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to fine which shall not be less than one lakh rupees
but which may extend to two lakh rupees:
Provided that the court may, for reasons to be
recorded in the judgment, impose a fine exceeding
two lakh rupees.”
10. It is now beyond any doubt or dispute that the quantum of punishment
to be inflicted on an accused upon recording a judgment of conviction would
be as per the law, which was prevailing at the relevant time.
As on the date of commission of the offence and/ or the date of
conviction, there was no distinction between a small quantity and a
commercial quantity, question of infliction of a lesser sentence by reason of
the provisions of the Amending Act, in our considered opinion, would not
arise.
It is also a well-settled principle of law that a substantive provision
unless specifically provided for or otherwise intended by the Parliament
should be held to have a prospective operation. One of the facets of Rule of
Law is also that all statutes should be presumed to have a prospective
operation only.
11. Mr. Bhati, however, has drawn our attention to a decision of this
Court in State Through CBI, Delhi v. Gian Singh [(1999) 9 SCC 312]
wherein a Three-Judge Bench of this Court, while considering the provisions
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of the Terrorist and Disruptive Activities (Prevention) Act, 1987 in regard to
the question as to whether despite the fact that Section 3(2)(i) of the
Terrorist and Disruptive Activities (Prevention) Act, 1985 having provided
for imposition of death penalty, having regard to a saving clause contained
in Section 1(3) thereof mandating for a different outflow even after the
expiry of the Act, held:
“25. We have extracted Section 3(2) of the TADA
Act, 1985 above. It could be discerned therefrom
that the only sentence which the sub-section
permitted for awarding is death penalty in case the
terrorist act resulted in the death of any person. It
must be pointed out that TADA Act, 1985
remained in force only for a period of 2 years
starting from 23-5-1985†. In other words, TADA
Act, 1985 expired on 22-5-1987 (sic 23-5-1987).
Instead of the statute reaching the stage of expiry
by the efflux of time, if it was repealed by another
statute, nothing would have survived from the
repealed statute unless the succeeding enactment
incorporates necessary provision to the contrary.
This is pithily amplified in Section 6 of the
General Clauses Act. But the aforesaid legal
implications of repeal of a statute cannot be
applied in the case of expiry of a statute, (vide
State of Punjab v. Mohar Singh Pratap Singh).
Normally the proceedings terminate ipso facto
with the expiry of the statute. Craies on Statute
Law at p. 409 of the 7th Edn. has stated thus:
“As a general rule, and unless it contains some
special provision to the contrary, after a temporary
Act has expired, no proceedings can be taken upon
it, and it ceases to have any further effect.
Therefore, offences committed against temporary
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Acts must be prosecuted and punished before the
Act expires, and as soon as the Act expires any
proceedings which are being taken against a
person will ipso facto terminate.”
Having regard to the fact that an alternative to the death penalty, i.e.,
sentence for imprisonment for life, could be imposed under the 1987 Act, it
was held:
“31. If the position was just in the reverse order i.e.
the latter Act contained harsher sentence and the
former Act contained a lesser sentence the
prohibition embodied in Article 20(1) of the
Constitution that no person shall “be subjected to a
penalty greater than that which might have been
inflicted under the law in force at the time of the
commission of the offence” would have come to
the rescue of the offender. But the offender (who is
liable to be convicted for the same offence, had it
been committed after the coming into force of the
subsequent TADA Act, 1987) could have been
punished with a sentence of imprisonment for life,
because such an alternative is provided in that
enactment.”
As regards the purpose for which the legislative benevolence carried
out by reason of the said Act would be extended, it was held:
“34. There is inconsistency between the sentencing
scope in Section 3(2) of TADA Act, 1985 and in
the corresponding provision in TADA Act, 1987.
The expression “in any enactment other than this
Act” would, under Section 25, encompass even an
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enactment which, though expired by the efflux of
time, continues to operate by virtue of any saving
clause. Accordingly, the exclusivity of the extreme
sentence contained in Section 3(2) of TADA Act,
1985 must stand superseded by the corresponding
benevolent provision in TADA Act, 1987. It is a
permissible course and the express prohibition
contained in Article 20(1) of the Constitution is not
a bar for resorting to the corresponding sub-section
in TADA Act, 1987.”
12. Act 9 of 2001 did not bring about any significant or material changes
in the parent Act. The Parliament had given effect thereto with effect from a
particular date, viz., 2.10.2001. If the Amending Act was to be given a
retrospective effect, the amendments carried out in regard to the provisions
for holding of trial would have been required to be complied with warranting
a retrial in terms thereof.
13 One of the objectives of a criminal trial is that delay should be
avoided.
The proviso appended to Section 41(1) of the Amending Act
categorically provides that the said amendment shall not have any effect to
the pending appeals. It is, therefore, an indicator to show that the concluded
trials should not be reopened.
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In Basheer alias N.P. Basheer v. State of Kerala [(2004) 3 SCC 609],
this Court took notice of the decision of this Court in Gian Singh (supra)
stating:
“22. Inasmuch as Act 9 of 2001 introduced
significant and material changes in the parent Act,
which would affect the trial itself, application of
the amended Act to cases where the trials had
concluded and appeals were pending on the date of
its commencement could possibly result in the
trials being vitiated, leading to retrials, thereby
defeating at least the first objective of avoiding
delay in trials. The accused, who had been tried
and convicted before 2-10-2001 (i.e. as per the
unamended 1985 Act) could possibly urge in the
pending appeals, that as their trials were not held
in accordance with the amended provisions of the
Act, their trials must be held to be vitiated and that
they should be retried in accordance with the
amended provisions of the Act. This could be a
direct and deleterious consequence of applying the
amended provisions of the Act to trials which had
concluded and in which appeals were filed prior to
the date of the amending Act coming into force.
This would certainly defeat the first objective of
avoiding delay in such trials. Hence, Parliament
appears to have removed this class of cases from
the ambit of the amendments and excluded them
from the scope of the amending Act so that the
pending appeals could be disposed of
expeditiously by applying the unamended Act
without the possibility of reopening the concluded
trials.
23. Thus, in our view, the Rubicon indicated by
Parliament is the conclusion of the trial and
pendency of appeal. In the cases of pending trials,
and cases pending investigation, the trial is yet to
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conclude; hence, the retrospective mollification of
the rigour of punishment has been made
applicable. In the cases where the trials are
concluded and appeals are pending, the application
of the amended Act appears to have been excluded
so as to preclude the possible contingency of
reopening concluded trials. In our judgment, the
classification is very much rational and based on
clearly intelligible differentia, which has rational
nexus with one of the objectives to be achieved by
the classification. There is one exceptional
situation, however, which may produce an
anomalous result. If the trial had just concluded
before 2-10-2001, but the appeal is filed after 2-
10-2001, it cannot be said that the appeal was
pending as on the date of the coming into force of
the amending Act, and the amendment would be
applicable even in such cases. The observations of
this Court in Nallamilli case would apply to such a
case. The possibility of such a fortuitous case
would not be a strong enough reason to attract the
wrath of Article 14 and its constitutional
consequences. Hence, we are unable to accept the
contention that the proviso to Section 41 of the
amending Act is hit by Article 14.”
On the aforementioned finding, the decisions of the Division Benches
of the Punjab and Haryana High Court and the Madhya Pradesh High Court,
which had applied the said Amending Act with retrospective effect, were
overruled.
14. In Amarsingh Ramjibhai Barot v. State of Gujarat [(2005) 7 SCC
550], this Court noticed that the minimum punishment under Section 21(c)
of the Act is of ten years with a fine of Rs. 1,00,000/-.
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If the said provision is applicable, we do not see as to why the
minimum sentence prescribed therein can be held to be not applicable.
This Court in The Superintendent, Narcotic Control Bureau v. Parash
Singh [2008 (13) SCALE 372] followed Basheer (supra) opining that by
reason of the Amending Act, no new offence was created.
15. Mr. Bhati would contend that it is a fit case where we should reduce
the sentence, as has been done in E. Micheal Raj v. Intelligence Officer,
Narcotic Control Bureau [(2008) 5 SCC 161].
In E. Micheal Raj (supra), this Court did not assign any reason. It did
not consider any of the decisions including Gian Singh (supra) and Basheer
(supra). It merely held:
“20. In the present case, the narcotic drug which
was found in possession of the appellant as per the
analyst’s report is 60 gm which is more than 5 gm
i.e. small quantity, but less than 250 gm i.e.
commercial quantity. The quantity of 60 gm is
lesser than the commercial quantity, but greater
than the small quantity and, thus, the appellant
would be punishable under Section 21(b) of the
NDPS Act. Further, it is evident that the appellant
is merely a carrier and is not a kingpin.”
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No ratio was laid down therein. Although this Court noticed that the
amendment had come into force with effect from 2.10.2001, the effect
thereof had not been considered. It proceeded on the basis that the
amendment shall apply.
16. Mr. Bhati strongly relied upon a decision of this Court in Rattan Lal v.
The State of Punjab [AIR 1965 SC 444] wherein this Court applied the
provisions of Probation of Offenders Act, 1958, stating:
“…When it was contended that the word “may” in
Section 11 of the Act empowers the appellate court
or the High Court to exercise the power at its
option and the words “any order under the Act”
empower it to make an order without reference to
the standards laid down in the Act, this Court
rejected both the contentions. It held that the
expression “may” has compulsory force and that
the power conferred on the appellate court was of
the same nature and characteristic and subject to
the same criteria and limitations as those conferred
on courts under Sections 3 and 4 of the Act. This
decision lays down three propositions, namely, (i)
an appellate court or a revisional court can make
an order under Section 6(1) of the Act in exercise
of its power under Section 11(1) thereof; (ii) it can
make such an order for the first time even though
the trial court could not have made such an order,
having regard to the finding given by it; and (iii) in
making such an order it is subject to the conditions
laid down in Sections 3, 4 and 6 of the Act. The
only distinguishing feature between the present
case and the said decision is that in the present
case the trial court did not make the order as the
Act was not extended to the area within its
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jurisdiction and in the said decision the trial court
did not make the order as it could not, on its
finding that the accused was guilty of an offence
punishable with imprisonment for life. But what is
important is that this Court held that the High
Court for the first time could make such an order
under Section 11 of the Act, as such a power was
expressly conferred with by Section 11 of the Act.
We, therefore, hold that the appellate court in
appeal or the High court in revision can, in
exercise of the power conferred under Section 11
of the Act, make an order under Section 6(1)
thereof, as the appellate court and the High Court,
agreeing with the Magistrate, found the accused
guilty of the offences for which he was charged.”
The said decision, in our opinion, has no application in the instant
case.
17. We, therefore, are of the opinion that the Amending Act cannot be
said to have any retrospective effect. The appeal is dismissed accordingly.
………………………….J.
[S.B. Sinha]
..…………………………J.
[Dr. Mukundakam Sharma]
New Delhi;
May 05, 2009