REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 972  OF 2003

The Superintendent, Narcotic            ….Appellant

Control Bureau

Versus

Parash Singh ....Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Challenge in this appeal is to the judgment of the Calcutta High Court

quashing charges framed under Section 20(b)(ii)(C) of the Narcotic Drugs

and  Psychotropic  Substances  Act,  1985   (in  short  the  ‘NDPS  Act’)  as

amended by Act 9 of 2001.  The High Court directed the trial court to frame

charges under Section 20(b) (i) of the Act.   

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2. The background facts in a nutshell are as follows:

A  complaint  was  filed  under  Section  8  of  the  Act  alleging

commission  of  offence  punishable  under  Section  20(b)(i)  of  the  Act  on

21.9.2001. The un-amended provision reads as follows:

"20. Punishment for contravention in relation to Cannabis plant and Cannabis---------------------“

Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder:

(b) Produces,  manufactures, possesses, sells,  purchases, transports, imports inter-state, exports inter-state or uses cannabis, shall be punishable------

(i)  Where  such  contravention  relates  to  Ganja  or  the cultivation  of  Cannabis  Plant,  with  rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees…………"

The  NDPS  Amendment  Act,  2001  (hereinafter  referred  to  as  the

‘Amendment Act’) introduce certain changes.  Charges were framed in the

instant  case  under  Section  20(b)(ii)(c)  of  the  Act  (as  amended  on

16.1.2002). The amended provision read as follows:

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"20. Punishment for contravention in relation to cannabis plant  and  cannabis-Whoever,  in  contravention,  of  any provisions  of  this  Act  or  any  rule  or  order  made  or condition of licence granted thereunder:

(b) Produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable-

(ii) Where such contravention relates to sub-clause (b)-

(a)  and  involves  small  quantity,  with  rigorous imprisonment for a term which may extent 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 reasons to be recorded in  the  judgment,  impose  a  fine  exceeding  two  lakh rupees."

The High Court was of the view that a new offence was made out

because a higher punishment was imposed.  Stand of the appellant is that no

new offence was created but what was provided for related to more stringent

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sentence.  It is, therefore, submitted that the High Court was not justified in

holding that the new offence was committed.

3. Learned counsel  for  the  respondent  supported  the  judgment  of  the

High Court.

4. In  order  to  appreciate  the  stand  of  the  learned  counsel  for  the

appellant  a reference to  Article 20 of the Constitution of India, 1950 (in

short the ‘Constitution’) reads as follows:

Protection in respect of conviction for offences. (1) 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 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.

(2)  No  person  shall  be  prosecuted  and  punished  for  the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.

5. It is manifest from Article 20(1) that it prohibits (1) making an Act

for the first time and then making that law retrospective.  In other words it is

not permissible to create an offence retrospectively (2) the infraction of the

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penalty may not be higher than what is prescribed in law which was in force

at the time of the commission of the offence.  It needs to be noted that the

validity of Amendment Act was challenged before this Court in Basheer @

N.P. Basheer v. State of Kerala [2004(3) SCC 609].  The validity of the act

was upheld.  This Court held that (a) all cases pending before the Court on

2.10.2001; (b) all cases under investigation as on that date shall be disposed

of  in  accordance  with  the  provisions  of  the  Act  as  amended  by  the

Amending Act.  In  State through CBI Delhi v.  Gian Singh [1999(9) SCC

312] it was held with reference to Article 20(1) of the Constitution that it is

a  fundamental  right  of  every  person  that  he  should  not  be  subjected  to

greater penalty than what the law prescribes and no ex-post facto legislation

is  permissible  for  escalating  the  severity  of  the  punishment.  But  if  any

subsequent  legislation down grades the harshness of the sentence for the

same offence, it would be salutary principal for administration of criminal

justice to suggest that the said legislative benevolence can be extended to

the  accused  who  awaits  judicial  verdict  regarding  sentence.   The  view

expressed in  Gyan Singh’s case (supra) finds support from the case of  T.

Barai v. Henry Ah Hoe & Anr. [1983 (1) SCR 905].  The High Court was

not  justified  in  holding  that  new  offence  was  created.   Before  the

amendment  as  well  as  after  the  amendment  the  ingredients  of  Section  8

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remain  same  and  there  was  no  amendment  in  this  provision.  Only

punishment for contravention in relation to cannabis plant and cannabis i.e.

Section 20 of the Act has been amended by the Amendment Act.

6. The  appeal  is,  therefore,  dismissed  with  clarification  that  no  new

offence  was  created  by  the  Amendment  Act.  But  at  the  same  time  no

punishment higher than what was originally provided for can be imposed on

the accused.

7. The appeal is dismissed with the aforesaid clarification.

...........................................J. (Dr. ARIJIT PASAYAT)

............................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi October 15, 2008

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