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2004(1) JLJ 133
Dipak Misra and A.K. Shrivastava, JJ.
Ramesh v. State of M.P. and another
W.P. No. 537 of 2003; Decided on 25.4.2003.
The petitioner was found in possession of 470 gms. of charas and the charge having been proved, he has been convicted. 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. [Para 3
Held: 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 down and accordingly we strike down the same as ultra vires. 2002(3) RCR (Criminal) 728 relied on. [Paras 22 & 23
(2) Constitution of India -- Art. 14 -- classification -- extent of -- concept of equality -- is the basic feature of the Constitution.
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. AIR 1978 SC 597 followed. [Para 16
".... 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 or things that are grouped together from those that are left out of the group; and (ii) that differentia must have a rational relation to the objects sought to be achieved by the statute in question." AIR 1983 SC 130, AIR 1979 SC 478 and AIR 1977 SC 965 followed. [Paras 17, 18 & 19
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 cannot 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. (2001) 1 SCC 68 and (2002) 4 SCC 34 followed. [Para 20
(3) Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 -- object and reasons -- it is graphically clear that the purpose of amendment was to rationalise sentence structure -- as the rigour of punishment has been reduced -- impact of legislation is beneficial -- it has to apply to proceedings pending in any Court. AIR 1965 SC 444 followed. [Para 10
(4) Constitution of India -- Art. 20(1) -- prohibition -- extent of -- amendment reducing punishment for an offence -- accused should have benefit of such reduced punishment.
It is only retroactive criminal legislation that is prohibited under Article 20(1). The prohibition 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, 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. AIR 1983 SC 150 followed. [Para 11
(5) Repeal -- later statute again describing an offence created by an earlier statute -- imposing different punishment or varying procedure -- earlier statute is repealed by implication. AIR 1983 SC 150 followed. [Para 13
(6) Criminal P.C., 1973 -- S. 374(2) -- appeal against conviction -- verdict of trial Court -- does not attain finality -- trial is deemed to be continuing despite of conviction. 2001(2) Vidhi Bhasvar 1 (SC) followed. [Paras 14 & 15
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Misra, J. -- 1. This writ petition preferred under Article 226 of the Constitution of India was instituted at the instance of the petitioner who has been convicted under section 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.
2. After notices were issued Mr. R.S. Patel, learned Senior Standing Counsel fur Union of India and Mr. S.K. Yadav, learned Government Advocate appeared and argued the matter.
3. 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.
4. 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 reads 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
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