@ N.P. Basheer Vs. State of Kerala  Insc
81 (9 February 2004)
Balakrishnan & B.N. Srikrishna.
APPEAL Nos.1335-1337 OF 2002 AND CRIMINAL APPEAL Nos.28-29,708,741 & 613 OF
2003 SRIKRISHNA, J.
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
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.
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.
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.
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 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.
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".
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.
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
Application of this Act to pending cases.
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:
that nothing in this Section shall apply to cases pending in appeal".
this Section, Parliament has declared its intention to apply the amended
provisions of the Act to:
All cases pending before the court on 2nd October, 2001;
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.
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.
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.
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:
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 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
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.
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.
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
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.
view, the contention is without substance and has to be rejected.
careful scrutiny of sub-section 1 of Section 41 of Act 9 of 2001 shows that all
cases have been divided into three categories:
Cases pending before the Trial Courts.
Cases pending investigation; and
Cases where the trials have concluded and which are pending in appeal.
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
we do that, we may dispose of a subsidiary contention based on fortuitousness. In
State of AP & Ors. v. Nallamilli Rami Reddy & 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
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:
the classification must be founded on intelligible differentia which
distinguishes persons grouped together from others who are left out of the group,
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.
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.
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.
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:
Avoidance of delay in trials; and (2) Rationalisation of sentence structure.
In as much
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.
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
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.
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.
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.
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:
First, the Amending Act there itself had Section 25, which was given overriding
effect over anything that had been done under the previous Act;
Secondly, this authority also emphasises the principle of extending benevolent
provision of the Amending Act to pending cases, since that was the intention of
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.
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.
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 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.
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.
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.
Appeals stand disposed of accordingly.