This writ petition preferred under Article 226 of the Constitution of India was instituted at the instance of the petitioner who has been convicted u/s 20(b)(ii) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short ''the NDPS Act'') and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/-, in default, to suffer further rigorous imprisonment for a period of three years in Special Case No. 6/99% by the learned Special Judge, NDPS, Indore. Being aggrieved by the said judgment of conviction he has preferred a Criminal Appeal No. 151/2000 in the High Court at Indore Bench which is pending for disposal. While suffering incarceration he sent the present application challenging the constitutional validity of Section 41 of the NDPS (Amendment) Act, 2001 (Act No. 9 of 2001). As the writ petition was instituted on the basis of the application received from the convict from jail we thought it appropriate to engage an amicus curiae to assist us, and accordingly we appointed Mr. S.C. Datt, learned Senior Counsel as the friend of the Court.
After notices were issued Mr. R.S. Patel, learned Senior Standing Counsel for Union of India and Mr. S.K. Yadav, learned Government Advocate appeared and argued the matter.
Before we proceed to deal with the contentions which have been proponed before us we think it condign to briefly refer to the facts and averments that have been made in the petition. It is urged that the petitioner was found in possession of 470 gms. of Charas and the charge having been proved he has been convicted as has been indicated hereinabove. As per the amending provision the Legislature has categorised three types of articles, namely, small quantity, commercial quantity and more than small quantity and less than commercial quantity. If a person is found in possession of small quantity the punishment is for six months and if it is commercial quantity then sentence would not be less than 10 years and fine not less than Rs. 1 lac. As far as third category is concerned the punishment would be rigorous imprisonment which may extend to 10 years and the fine amount upto Rs. 1 lac. It is pleaded in the petition that the finding recorded against him with regard to possession of 470 gms. of Charas would bring it in the third category as per the notification issued on 19-10-2001. The grievance of the petitioner is that section 41 of the Amendment Act of 2001 lays a postulate that nothing that has been stated in the said section would apply to the cases pending in appeal and thereby a classification is created which is not only arbitrary and unreasonable thereby defiant of Article 14 of the Constitution but also offends Article 21 of the Constitution.
Presently we think it seemly to refer to the provisions and thereafter enumerate the submissions advanced at the Bar. The Amendment Act of 2001 came into force on 19-10-2001. Section 2 of the Principal Act has been amendment and certain clauses have been inserted. The inserted clause deals with commercial quantity and small quantity. Section 20 of the Principal Act has been substantially amended. The amended provision read as under :--
"(i) Where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),--
(A) and 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) and 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) and 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 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 reason to be recorded in the judgment, impose a fine exceeding two lakh rupees."
It is also apposite to state here that Sections 41 to 43 of the Principal Act have been totally substituted. Certain amendments have been inserted in Sections 42, 44, 49, 50, 52, 60, 61, 62, 63, 68-A, 68-B, 68-C, 68-F, 68-H, 68-O, 76 and 77. That apart, Section 54 has also been totally substituted and a new Section 68-Z has been incorporated. We have referred to the aforesaid amendments only to show the magnitude of the amendment.
Section 41 of the Amendment Act of 2001, which is relevant for the present purpose, reads as under :--
"41. Application of this Act to pending cases.-- (1) Not-withstanding 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 amendment 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.
(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 into force."
We have already reproduced the amendment that has taken place in respect of Section 20 of the Principal Act. On a scrutiny of the said provision it is graphically clear that three types of punishment are imposable keeping in view the concept of quantity. In this backdrop if Section 41 is studied it is manifest that all the cases pending before the Courts at the commencement of this Act shall be disposed of in accordance with the provisions of the Principal Act as amendment by this Act, and any person found guilty of any offence punishable under the Principal Act would be liable for punishment which is lesser than the punishment for which he is otherwise liable at the date of commission of such offence.
Submission of Mr. S.C. Datt, learned Senior Counsel, is that the aforesaid provision which excludes the applicability of said provision to the cases pending in appeal is totally arbitrary and discriminatory. It is urged by him that the appeal is a continuation of trial and a provision of this nature does not withstand scrutiny inasmuch as an accused of same offence when gets convicted suffers lesser sentence because his trial is delayed but a similarly placed accused would be given higher punishment because his case was decided earlier. It is contended by him that the matter would have been different if no appeal would have been preferred or the appeal would have been disposed of and the provision would have curtailed the right of re-opening of the case in appeal. But, denying the privilege or benefit because the accused is in appeal does not stand to reason. It is canvassed by him that it is a beneficial provision and hence, it has to be given full effect, and confining it to the pending trials and excluding the same from spheres of appeal is wholly arbitrary. Submission of Mr. Datt is that there is no reasonable base for such classification and, therefore, the provision is hit by Article 14 of the Constitution. It is propounded by Mr. Datt that right to life includes right to liberty and by incorporation of the proviso to Section 41 of the Amendment Act the liberty of a person is unlawfully curtailed and curbed. To elaborate: it is the commission of the offence and the date of offence which are the material one and not the date of rendering of decision in the case.
Mr. R.S. Patel, learned Standing Counsel for Union of India submitted that the Legislature in its wisdom has not applied the provisions to all cases and excluded its applicability to the appeals as a conviction has already been recorded. It is putforth by him that there is distinction between an accused and a convict and such distinction would come within the conception of reasonable classification and hence, the provision can not be regarded as arbitrary or discriminatory.
Mr. S.K. Yadav, learned Government Advocate, submitted that to curb the menace of the illicit trafficking in narcotic drugs the accused persons who have been convicted are to be seriously dealt with and, therefore, they have been kept out of the purview of the amendment Act.
To appreciate the rival submissions raised at the Bar it is appropriate to refer to the statement of objects and reasons of the Amendment Act No. 9 of 2001. The same reads as under :--
"Statement of Objects and Reasons.-- The Narcotic Drugs and Psychotropic Substances Act, 1985 provides different punishment for various offences relating to illicit trafficking in narcotic drugs and Psychotropic substances. Most of the offences invite uniform punishment of a 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."
On a bare perusal of the aforesaid objects and reasons it is graphically clear that the purpose of amendment was to rationalise the sentence structure. Submission of Mr. Datt is that when there is revision of sentence structure and is a beneficial one it should be applied to the accused as well as to the convict inasmuch as the date of offence is the material one. As has been stated earlier, learned Senior Counsel has propouned that as the rigour of punishment has been reduced the impact of legislation is beneficial and, therefore, it has to apply to the proceedings pending before any Court. In this context the learned Senior Counsel has drawn our attention to the decision rendered in the case of
"(4) The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above the age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the Court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the Court not to sentence them to imprisonment unless it is satisfied that, having regard to the circumstances of these case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act."
Thereafter, in Paragraph 6 Their Lordships further held as under :--
"6. The first question is whether the High Court, acting u/s 11 of the Act, can exercise the power conferred on a Court u/s 6 of the Act. It is said that the jurisdiction of the High Court u/s 11(3) of the Act is confined only to a case that has been brought to its file by appeal or revision and, therefore, it can only exercise such jurisdiction as the Trial Court had, and in the present case the Trial Court could not have made any order u/s 6 of the Act, as at the time it made the order the Act had not been extended to Gurgaon District. On this assumption, the argument proceeds, the Act should not be given retrospective operation, as, if so given, it would affect the criminal liability of a person for an act committed by him before the Act came into operation. In support of this contention a number of decisions bearing on the question of retroactivity of a statute in the context of vested rights have been cited. Every law that takes away or impairs a vested right is retrospective. Every ex post facto law is necessarily retrospective. Under Article 20 of the Constitution, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of that act charged as an offence, nor 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.
But an ex post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibition.
If a particular law makes a provision to that effect, though retrospective in operation, it will be valid. The question whether such law is retrospective and, if so, to what extent depends upon the interpretation of a particular statute, having regard to the well settled rules of construction. Maxwell in his book "On Interpretation of Statutes" 11th Edition at pp 274-275 summarizes the relevant rule of construction thus :--
"The tendency of, modern decisions, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction. All statutes are now construed with a more attentive regard to the language, and criminal statutes with a more national regard to the aim and intention of the legislature, then formerly. It is unquestionably right that the distinction should not altogether erased from the judicial mind, for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty, and this tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubtful influences. The effect of the rule of strict construction might almost be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given the subject and against the legislature which has failed to explain itself. But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischiefs aimed at are, if the language permits, to be held to fall within its remedial influence."
In this regard we may refer with profit to the decision rendered in the case of
"22. It is only retroactive criminal legislation that is prohibited under Article 20(1). The probation contained in Article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he 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. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type or otfence no person can be convicted by such expost facto law nor can the enhanced punishment prescribed by the amendment be applicable. But insofar as the Central amendment Act reduces the punishment for an offence punishable u/s 16(1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even expost 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 common sense. This finds support in the following passage from Craies on Statute Law, 7th Edn. at pp. 387-388 :
"A retrospective statute is different from an expostfacto statute. "Every expost facto law ....." said Chase J., in the American case of Calder v. Bull, (1798) 3 Dallas 386, 391 (US) "must necessarily be retrospective, but every retrospective law is not an expost facto law. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive; it is a good general rule that a law should have no retrospect, but in cases in which the laws may justify and for the benefit of the community and also of individuals relate to a time antecedent to their commencement : as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction..... There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime."
In the aforesaid case in Paragraph 23 Their Lordships gave an illustration that if Parliament were to re-enact Section 302 of the Indian Penal Code, 1860 and provide that the punishment for an offence of murder shall be sentence for imprisonment for life instead of the present sentence of death or imprisonment for life, then it can not be that the Courts would still award a sentence of death even in pending cases.
In this context we think it appropriate to refer to Paragraph 25 of the aforesaid judgment as we are of the considered view that the same is very relevant. It reads as under :--
"25. It is settled both on authority and principle that when a later statute again described an offence created by an earlier statute and imposes a different punishment, or varies the procedure, the earlier statute is repealed by implication. In Michell v. Brown (1858) 120 ER 909,912 Lord Campbell put the matter thus :--
It is well settled rule of construction that, if a later statute again describes an offence created by a former statute and affixes a different punishment varying the procedure, the earlier statute is repealed by a later statute: See also Smith v. Benabo (1937) 1 All ER 523."
In Regina v. Youle (1861) 158 ER 311 315-316 Martin, B., said in the oft-quoted passage :
"If a statute deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the same offences, and a different punishment is imposed by the later Act. I think that, in effect, the legislature has useful to that the new Act shall be substituted for the earlier Act."
The rule is however, subject to the limitation contained in Article 20(1) against ex post facto law providing for a grater punishment and has also no application where the offence described in the later Act is not the same as in the earlier Act, i.e., when the essential ingredients of the two offences are different."
In this context Mr. Datt has also commended us to the decision rendered in the case of
"5. To have speedy justice is a fundamental right which flows from Article 21 of the Constitution. Prolonged delay in disposal of the trials and thereafter appeals in criminal oases, for no fault of the accused, confers a right upon him to apply for bail. This Court has time and again, reminded the executive of their obligation to appoint requisite number of Judges to cope up with the ever increasing pressure on the existing judicial apparatus. Appeal being a statutory right the Trial Court''s verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction."
From the aforesaid decision it is luminescent that despite conviction the appeal is regarded as continuation of trial.
The question that falls for adjudication is whether the proviso is arbitrary being discriminatory. Indubitably, it is a legislation which has created a class. Article 14 of the Constitution does permit class legislation but such classification has to have the bedrock on intelligible differentia and must have the nexus with the object sought to be achieved. In this context it is profitable to refer to the decision rendered in the case of
"..... What is the content and reach of the great equalising principle enunciated in this article ? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it can not be imprisoned within traditional and doctrinaire limits.
...... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence."
In the case of
"..... to pass the test of permissible classification, two conditions must be fulfilled, viz., (i) that the classification must be founded on an intelligible differentia which distinguishes persons of things that are grouped together from those that are left out of the group; and (ii) that the differentia must have a rational relation to the objects sought to be achieved by the statute in question. (See :
In this context we are reminded of the inimitable manner in which Krishna Iyer, J., in the case of
"The article has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. On knight-errants of ''executive excesses'',if we may use current cliche, can fall in love with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And so it is that. I insist on the dynamics of limitation on fundamental freedoms as implying the rule of law. Be you ever so high, the law is above you."
We may with profit refer to certain observations made by the Apex Court in the case of
"5............ We permit ourselves a few observations which serve as perspective setters. Law is meant to serve the living and does not beat its abstract wings in the jural void. Its functional fulfillment as social engineering depends on its sensitized response to situation, subject-matter and the complex of realities which require ordered control. A holistic understanding is simple justice to the meaning of all legislations ......"
In this context we may refer with profit to the decision rendered in the case of lndra Sawhni (II) v.. Union of India (2001) 1 SCC 68, wherein Their Lordships of the Apex Court have held that the Indian Constitution is wedded to the concept of equality which is the basic feature of the Constitution. Either the Parliament or the State Legislature can not transgress the principles of equality enshrined in Article 14 of the Constitution. True it is, if there is rational classification it would not invite the frown of Article 14 of the Constitution. It is well settled in law that mere differentiation does not per se amount to discrimination within the inhibition of the equal protection clause. In the case of
"When a law is challenged as violative of Article 14, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. Thereafter, the Court has to apply a dual test in examining the validity viz., whether the classification is rational and based upon an intelligible different which distinguishes persons or things group together from those left out of the group, and whether the basic of differentiation has any rational nexus or relation with its avowed policy and objects. Moreover, the inequality complained to must arise under the same piece of legislation or under the same set of laws which have to be treated together as one enactment......"
If the present factual matrix is tested on the touchstone of the aforesaid principles of law it is absolutely manifest that the classification which has been made between the accused awaiting verdict and an accused who has been convicted for selfsame offence does not appear to be founded on rational classification. In this context, we may profitably refer to the case of
"It is the fundamental right of every person that he should not be subject to greater penalty what the law prescribes, and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation would downgrade the harshness of the sentence for the same offence, it would be a salutary principle for a administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence."
We have already referred to the statement of object and reasons. The amendment has been brought to introduce the rationality in sentencing. It is settled in law that an appeal is continuation of the trial. It is not incorrect to say, unless the judgment of conviction has received finality the same should be made applicable to the convict as he still awaits the verdict. It may be different when the sentence is pronounced in appeal and the whole thing can not be re-opened but to make a provision that the beneficial provision would not be applicable to the cases pending in appeal would not only be violative of Article 14 of the Constitution of India but also would run counter to the salutary principle meant for administration of criminal justice. As far as the present provision is concerned we perceive no rationale not to apply the amended provision to the cases pending in appeal. In our considered opinion the same invites the wrath of Article 14 of the Constitution and being defiant to the same is liable to be struck own and accordingly we strike down the same as ultra vires.
We are obliged to state here that Mr. Datt has brought to our notice the decision rendered by the Division Bench of Punjab and Haryana High Court in the case of Ram Singh v. State of Haryana 2002 (3) RCR 728, wherein in Paragraph 18 it has been directed as under :--
"18. Thus appeal being rehearing of the entire case and is pending before the Court would be entitled to the benefit of amending Act No. 9 of 2001. As mentioned above the exclusion of benefit of liberalise provisions of the Act as substituted by Act No. 9 of 2001 to cases pending in appeal is without any intelligible differentia and without having any reasonable nexus with the object to be achieved, therefore, we hereby strike down the proviso and issue a writ in the nature of mandamus directing that the proviso to Sub-section (1) of Section 41 of Act No. 9 of 2001 "provided that nothing in the section shall apply to the cases pending in appeal" shall not be given effect to being violative of Article 14 of the Constitution of India being a classification without any reasonable nexus with the object to be achieved. Consequently, it is held that Act No. 9 of 2001 shall be applicable to all cases pending before the Courts or under investigation at the commencement of the said Act shall be disposed of in accordance with the provisions of the Principal Act as amended by Act No. 9 of 2001 irrespective of the fact whether such cases are pending in appeal or before the Trial Court."
We have already stated that the proviso to Sub-section (1) of Section 41 of the Act, 2001 is ultra vires but we have struck it down by issue of writ of certiorari. As a consequence of such quashment the main provision, we would like to say requires to be interpreted. Sub-section (1) of Section 41 of the Amendment Act, 2001 postulates that all cases pending before the Courts or under investigation at the commencement of the Act shall be disposed of in accordance with the provision of the Principal Act as amended by the said Act and 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. Applying the science of interpretation and taking recourse to the art of acceptation, we are inclined to interpret that the main provision shall apply to the appeals because the language employed in the provision is ''all cases pending before the Court''. When the word Court has been used there is no reason or justification to exclude the Appellate Court. We may reiterate that once the proviso has been struck down being unconstitutional, the main provision, propio vigore, would apply to appeals.
The writ petition is accordingly allowed. There shall be no order as to costs.
