IMPORTANT POINT
Proviso to Section 41 of Amendment Act of 2001 NDPS Act is Constitutional and not hit by Article 14 of the Constitution of India.

Headnote:Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001-Section 41-Constitutional validity of provision-Amendment Act rationalised structure of punishment under the Act by providing graded sentences linked to quantity of narcotic drug or psychotropic substance in relation to which offence was committed-Amended provisions of the Act were to apply to all cases pending before Court on 2-10-2001 and all cases pending investigation as on that date-Proviso however excluded cases pending in appeal-Contention that proviso was unreasonable and violative of equality right guaranteed by Article 14 of Constitution, resulting in hostile discrimination-Whether segregation of cases pending in appeal" and their exclusion from application of beneficial effects of amending Act infringed equality right guaranteed under Article 14 of Constitution? No.
       Held : 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. (Para 22)
       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 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. (Para 27)

JUDGMENT

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).

2. 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.

3. 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.

4. 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 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."

5. 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 defin

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2004 Supreme(SC) 158

IMPORTANT POINTProviso to Section 41 of Amendment Act of 2001 NDPS Act is Constitutional and not hit by Article 14 of the Constitution of India.

Cases Referred (7)

IMPORTANT POINT
Proviso to Section 41 of Amendment Act of 2001 NDPS Act is Constitutional and not hit by Article 14 of the Constitution of India.