Full Judgment Text
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CASE NO.:
Appeal (crl.) 1334 of 2002
PETITIONER:
Basheer @ N.P. Basheer
RESPONDENT:
State of Kerala
DATE OF JUDGMENT: 09/02/2004
BENCH:
K.G. Balakrishnan & B.N. Srikrishna.
JUDGMENT:
JUDGMENT
WITH
CRIMINAL APPEAL Nos.1335-1337 OF 2002 AND
CRIMINAL APPEAL Nos.28-29,708,741 & 613 OF 2003
SRIKRISHNA, J.
These appeals have been placed before us for deciding a question of
law as to the Constitutional validity of the proviso to Sub-section 1 of
Section 41 of the Narcotic Drugs and Psychotropic Substances
(Amendment) Act, 2001 (Act 9 of 2001).
Although, the facts and other contentions raised in each of these
appeals are different, for the purposes of deciding the question of law
urged before us, it is sufficient to note that in all these cases the accused
were convicted by the Trial Courts and had filed appeals before the
respective High Courts. Further, their appeals were pending before the
High Courts on 2nd October, 2001, when Act 9 of 2001, came into force.
In all these cases, the accused were found guilty of offences in connection
with narcotic drugs and psychotropic substances and were sentenced to
rigorous imprisonment of 10 years and a fine of Rs. One lakh, which was
the minimum punishment prescribed under the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act,
1985") as it stood prior to the aforesaid amendment coming into force
from 2nd October, 2001.
The NDPS Act, 1985 contemplates severe and deterrent
punishment as is evident from the minimum term of imprisonment
prescribed in Sections 21 and 22 of the NDPS Act, 1985. It was found
that a large number of cases, in which the accused were found to be in
possession of small quantity of drugs, were really cases of drug addicts
and not traffickers in narcotic drugs and psychotropic substances. As a
result of the stringent bail provisions there were hardly any cases where
such persons could obtain bail. Thus, the trials were pending for long
periods and the accused languished in jail. Under Section 27 of the Act of
1985, there was a marginal concession in favour of drug addicts by
providing a reduced quantum of punishment if the accused could prove
that the narcotic drug or psychotropic substance in his possession was
intended for his personal consumption and not for sale or distribution.
The provisions of NDPS Act, 1985 were amended by the
Amending Act 9 of 2001, which rationalised the structure of punishment
under the Act by providing graded sentences linked to the quantity of
narcotic drug or psychotropic substance in relation to which the offence
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was committed. The application of strict bail provisions was also
restricted only to those offenders who indulged in serious offences. The
Statement of Objects and Reasons appended to the Bill declares this
intention thus:-
"Statement of Objects and Reasons:- Amendment Act 9 of
2001:- The Narcotic Drugs and Psychotropic Substances Act,
1985 provides deterrent punishment for various offences
relating to illicit trafficking in narcotic drugs and psychotropic
substances. Most of the offences invite uniform punishment of
minimum ten years rigorous imprisonment which may extend
up to twenty years. While the Act envisages severe
punishments for drug traffickers, it envisages reformative
approach towards addicts. In view of the general delay in trial
it has been found that the addicts prefer not to invoke the
provisions of the Act. The strict bail provisions under the Act
add to their misery. Therefore, it is proposed to rationalise the
sentence structure so as to ensure that while drug traffickers
who traffic in significant quantities of drugs are punished with
deterrent sentences, the addicts and those who commit less
serious offences are sentenced to less severe punishment. This
requires rationalisation of the sentence structure provided under
the Act. It is also proposed to restrict the application of strict
bail provisions to those offenders who indulge in serious
offences."
As a consequence of the Amending Act coming into force on 2nd
October, 2001, the sentencing structure underwent a drastic change. The
Act introduced the concept of "commercial quantity" in relation to
narcotic drugs or psychotropic substances by adding clause (viia) in
Section 2, which defines this term as any quantity greater than a quantity
specified by Central Government by notification in the official gazette.
Further, the expression "small quantity" is defined in Section 2, sub-
section (xxiiia), as any quantity lesser than the quantity specified in the
notification. Under the rationalised sentencing structure, the punishment
would vary depending on whether the quantity of offending material was
"small quantity", "commercial quantity" or something in between. This is
the effect of the rationalisation of sentencing structure carried out by the
Amending Act, 9 of 2001, in Section 27. A notification was issued on 9th
October, 2001, specifying in respect of 239 Narcotic Drugs and
Psychotropic Substances, as to what would be "small quantity" and "
commercial quantity".
Apart from these provisions, the Act of 2001 introduced further
amendments by substituting a new section for old Section 27 of the 1985
Act. A new provision, Section 32B was inserted by the Amending Act 9
of 2001, which prescribes the factors to be taken into account for
imposing higher than the minimum punishment. Sections 41 to 43, which
are substituted by the amendment, deal with the power of issuing warrant
and authorization; power of entry, search, seizure and arrest without
warrant or authorisation; and power of seizure and arrest in public places.
Significant changes were made in section 54 of the Act, which deals with
the presumption to be applied in a trial under the Act arising from
possession of illicit articles. 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:-
"41. Application of this Act to pending cases.\027 (1)
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
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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, Parliament has declared its intention to apply the
amended provisions of the Act to: (a) All cases pending before the court
on 2nd October, 2001; (b) All cases under investigation as on that date;
and provides that these categories of cases shall be disposed of in
accordance with the provisions of the 1985 Act as amended by the Act of
2001. In other words, the benefit of the rationalised sentencing structure
would be applicable to these categories. The proviso, however, makes an
exception and excludes the application of the rationalised sentencing
structure to cases pending in appeal.
Learned counsel for the appellant in this group of appeals has urged
that, as a general rule, retrospective amendment of a criminal statute
would be hit by Article 20(1) of the Constitution subject to the exception
that where the amending statute mollifies the rigour of law, the benefit of
the mollification shall be available to the accused, whose cases are
pending on the date on which the amending provision comes into force.
Hence, they contend that the benefit of the rationalised structure of
punishment introduced by the Amending Act of 2001 should also be made
available to all pending cases (including appeals) in Courts on the date of
the amendment coming into force. Inasmuch as the proviso to Section 41
of Act 9 of 2001 denies them this benefit, by putting them in a different
category, the said proviso is unreasonable and violative of the equality
right guaranteed by Article 14 of the Constitution, resulting in hostile
discrimination. They contend that, in reality, there could be no difference
between cases pending before the Courts or cases pending in appeal, since
an appeal is the continuation of the trial. Hence, they urge that the
classification made by the legislature is unreasonable, not based on any
intelligible differentia having rational nexus with the rationale or
objectives of the amending Act. They cite in support of their contention
the judgments of the Punjab and Haryana High Court in Ram Singh v.
State of Haryana, 2003 (1) EFR 444, and the Judgment of the High Court
of Madhya Pradesh at Jabalpur in Ramesh v. State of Madhya Pradesh
and Anr., (Writ Petition 537 of 2003 decided on 25.4.2003 by Division
bench of Deepak Mishra and A.K. Srivastava, JJ.)
Undoubtedly, the two judgments cited take the view that the
proviso to Section 41(1) of Act 9 of 2001 is hit by Article 14 of the
Constitution and have declared it to be unconstitutional relying upon some
judgments of this Court which we shall presently refer to. The correctness
of these High Court decisions is open to question.
In Ratan Lal v. State of Punjab, AIR 1965 SC 444, it was
unequivocally declared by this Court that an ex post facto criminal law,
which only mollifies the rigour of law is not hit by Article 20(1) of the
Constitution and that if a particular law makes provision to that effect,
though retrospective in operation, it would still be valid.
In T. Barai v. Henry Ah Hoe and Anr., AIR 1983 SC 150, this
view was reiterated and it was emphasized that if an amending Act
reduces the punishment for an offence, there is no reason why the accused
should not have the benefit of such reduced punishment. Relying on
Craies on Statute Law (7th Edn., pp. 387-388), this Court (at p.157, para
22) said:
"The rule of beneficial construction requires that even ex post
facto law of such a type should be applied to mitigate the rigour
of the law .The principle is based both on sound reason and
commonsense."
There is no doubt as to the correctness of the principle on which the
two judgments of the High Courts rely. All statutes must be interpreted as
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prospective in operation, unless retrospectivity is expressly declared by
the statute or to be inferred as the necessary intendment from the language
used in the statute. As far as the amendments introduced in the NDPS
Act, 1985, by Act 9 of 2001 are concerned, Section 41, in terms, says that
the Amending Act would apply to all cases pending before the Court or
under investigation on the date of commencement of the Amending Act.
In other words, it is to be applied retrospectively. If the Act had contained
any provisions to the detriment of the accused, then undoubtedly, it would
have been hit by the rule against post facto legislation contained in Article
20(1). However, we find that the amendments (at least the ones
rationalising the sentencing structure) are more beneficial to the accused
and amount to mollification of the rigour of the law. Consequently,
despite retrospectivity, they ought to be applied to the cases pending
before the Court or even to cases pending investigation on the date on
which the Amending Act came into force. Such application would not be
hit by Article 20(1) of the Constitution.
Nothing much however, turns on this principle as far as the appeals
before us are concerned. Notwithstanding the application of the
mollifying provisions of the Act retrospectively, by the proviso to Section
41(1), Parliament has expressly declared that the benefit of the
retrospective mollificatory provisions would not be available to the cases
"pending in appeal". What is crucial is whether this segregation of "cases
pending in appeal" and their exclusion from the application of the
beneficial effects of the amending Act infringes the equality right
guaranteed under Article 14 of the Constitution.
Counsel contend that there may be cases where the trial may have
concluded before 2nd October, 2001; equally, for reasons not within the
control of the accused, there may be cases where the trials may have
continued beyond 2nd October, 2001. Therefore, on account of the
fortuitous reason of quick disposal of trials prior to 2nd October, 2001,
appeals might have been filed and these could be pending on the date on
which the Amending Act came into force. It is argued that these
fortuitous circumstances should not determine the fate of the accused nor
whether they should get the benefit of the mollification of the rigour of the
law. Counsel contends that persons similarly situate would be subject to
discriminative yardsticks of punishment only because of fortuitous
circumstances. According to them, the proviso hostilely discriminates
against the class of cases pending in appeal, the classification is
unsupported by any rational basis or intelligible differentia having nexus
with the objective of the amending Act. Thus, according to the appellants,
the proviso to sub-section (1) of Section 41 of Act 9 of 2001, infringes
Article 14 and is, therefore, unconstitutional.
In our view, the contention is without substance and has to be
rejected.
A careful scrutiny of sub-section 1 of Section 41 of Act 9 of 2001
shows that all cases have been divided into three categories:
a) Cases pending before the Trial Courts.
b) Cases pending investigation; and
c) Cases where the trials have concluded and which are pending in
appeal.
Counsel contends that, barring cases, which are pending
investigation, there is no rational basis for differentiating cases pending
before the Court and cases pending in appeal. They submit that a case
pending in appeal is nothing but an extension of the trial and, therefore,
the two categories of cases (a) and (c) above are identically situated. The
validity of this reasoning needs to be critically appraised.
Before we do that, we may dispose of a subsidiary contention based
on fortuitousness. In State of AP & Ors. v. Nallamilli Rami Reddy &
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Ors., (2001) 7 SCC 708, a similar contention, urged to impugn a statutory
provision as infringing Article 14 of the Constitution, was dismissed by
this Court in the following words:- [at p.715, para 8]
" What Article 14 of the Constitution prohibits is "class
legislation" and not "classification for purpose of legislation".
If the legislature reasonably classifies persons for legislative
purposes so as to bring them under a well defined class, it is not
open to challenge on the ground of denial of equal treatment
that the law does not apply to other persons. The test of
permissible classification is twofold: (i) that the classification
must be founded on intelligible differentia which distinguishes
persons grouped together from others who are left out of the
group, and (ii) that differentia must have a rational connection
to the object sought to be achieved. Article 14 does not insist
upon classification, which is scientifically perfect or logically
complete. A classification would be justified unless it is
patently arbitrary. If there is equality and uniformity in each
group, the law will not become discriminatory, though due to
some fortuitous circumstance arising out of (sic) peculiar
situation some included in a class get an advantage over others
so long as they are not singled out for special treatment. In
substance, the differentia required is that it must be real and
substantial, bearing some just and reasonable relation to the
object of the legislation."
We think that these observations are equally applicable to the cases
before us.
Merely because the classification has not been carried out with
mathematical precision, or that there are some categories distributed
across the dividing line, is hardly a ground for holding that the legislation
falls foul of Article 14, as long as there is broad discernible classification
based on intelligible differentia, which advance the object of the
legislation, even if it be class legislation. As long as the extent of over-
inclusiveness or under-inclusiveness of the classification is marginal, the
Constitutional vice of infringement of Article 14 would not infect the
legislation.
In the case before us, Parliament had two discernible objectives in
bringing forth the amendment of 2001. These are evident from the
Statement of Objects and Reasons and they are:
(1) Avoidance of delay in trials; and
(2) Rationalisation of sentence structure.
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 re-tried 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 off expeditiously by applying
the unamended Act without the possibility of reopening the concluded
trials.
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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 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’s case (supra) would apply to such a case. The possibility of
such a fortuitous case would not be 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.
We are also unable to agree with the view taken in the judgments of
the Division Benches of Punjab and Haryana High Court and the Madhya
Pradesh High Court, which have been cited before us. In our view, these
judgments have proceeded on an erroneous basis on the constitutional
issue and have declared the relevant proviso to be unconstitutional. The
two judgments are, therefore, overruled. The reliance upon the judgment
of this Court in State v. Gian Singh, (1999) 9 SCC 312, Ratan Lal
(supra) and T. Barai (supra) is of no avail to the appellants for these
cases merely emphasise the permissibility of ex post facto legislation for
reducing the severity of the punishment.
The appellants relied upon the observations of this Court in Akhtari
BI (Smt.) v. State of M.P., (2001) 4 SCC 355, in which this Court has
emphasized that to have speedy justice is a Fundamental Right that flows
from Article 21 of the Constitution and that prolonged delay in disposal of
the trials and thereafter in appeals in criminal cases, for no fault of the
accused, confers a right upon him to apply for bail. There can be no
dissent with this principle, which in fact forms the underpinning of the
legislation under attack before us.
The learned Additional Solicitor General also relied upon the
judgment of this Court in Gian Singh (supra). In our view, this authority
does not have a bearing on the issue debated before us for two reasons
namely:
(a) First, the Amending Act there itself had Section 25, which
was given overriding effect over anything that had been done under
the previous Act;
(b) Secondly, this authority also emphasises the principle of
extending benevolent provision of the Amending Act to pending
cases, since that was the intention of Parliament.
Learned Solicitor General also referred to K.S. Paripoornan v.
State of Kerala & Ors., (1994) 5 SCC 593; R. Rajagopal Reddy (Dead)
by LRs & Ors. v. Padmini Chandrasekharan (Dead) by LRs, (1995) 2
SCC 630 and Smt. Dayawati & Anr. v. Inderjit & Ors., (1966) 3 SCR
275. In our view, these cases are of no aid to us, as they neither dealt with
retrospective application of a criminal statute, nor with the constitutional
validity thereof. We do not propose to examine them in detail for these
reasons.
In the result, we are of the view that the proviso to Section 41 (1) of
the Amending Act 9 of 2001 is Constitutional and is not hit by Article 14.
Consequently, in all cases, in which the trials had concluded and appeals
were pending on 2.10.2001, when Amending Act 9 of 2001 came into
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force, the amendments introduced by the Amending Act 9 of 2001 would
not be applicable and they would have to be disposed off in accordance
with the NDPS Act, 1985, as it stood before 2nd October, 2001. Since
there are other contentions of law and fact raised in each of these cases,
they would have to be placed before the appropriate Benches for decision
and disposal in accordance with the law.
CRIMINAL APPEAL Nos.708 & 741 of 2003
A perusal of the facts narrated in the appeal memoranda does not
indicate that in these cases, the trials had concluded and appeals had been
filed before 2.10.2001. It is not clear whether these cases would really fall
under the proviso to Section 41(1) of Act 9 of 2001. We are, therefore,
not making any orders in these two cases.
These cases are to be placed before the appropriate Bench for
decision and disposal in accordance with the law in the light of our
judgment in Crl. Appeal No.1334 of 2002 and other connected matters.
The Appeals stand disposed of accordingly.