TMI Blog2004 (2) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... d B.N. Srikrishna, JJ. REPRESENTED BY : S/Shri T.N. Singh, S.N. Singh, V.K. Singh, Ms. Asha Gopalan Nair, N.M. Popli, Advocate for Ms. B. Sunita Rao, Ms. Promila, Anil Aggarwal, A.K. Sangal, Ms. B. Pasrija, Ms. Reena Sinha, Ms. Neelam, Shakil Ahmed Syed, Advocates, for the Appellant. S/Shri R.N. Trivedi, ASG, Ms. Binu Tamta, U.U. Lalit, Ms. Sushma Suri, D.P. Singh, Vinay Garg, Ms. Avneet Toor, S. Prasad, A. Kumar, R.G. Krishnan, S.N. Jha, K.R. Sasiprabhu, Ramesh Babu M.R., Ms. Vibha Datta Makhija, Advocates with him, for the Respondent. [Judgment per : B.N. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 8. 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment 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. 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore 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 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 two fold : (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eat 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. 23. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 28. 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. 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 : 29. A pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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