REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 910 OF 2009 [Arising out of SLP (Crl.) No. 7944 of 2008]

Jawahar Singh @ Bhagat Ji …Appellant

Versus

State of GNCT of Delhi …Respondent

J U D G M E N T  

S.B. SINHA, J :   

1. Leave granted.

2. Interpretation  of  an  amendment  made  in  the  Narcotic  Drugs  and  

Psychotropic Substances Act, 1985 (for short “the Act”) by reason of the  

Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act  

No. 9 of 2001) (for short “the Amending Act”) which has come into effect  

from 2.10.2001 is the question involved in this appeal.

3. The said question arises in the following factual matrix.

On or about 26.09.1999, one Attar Singh, Sub-Inspector received a  

secret information that the appellant herein would come to a place known as  

Yamuna Pusta to deliver a consignment of smack.  On the basis of the said  

information,  he sent  an intimation  to  the  Asstt.  Commissioner  of  Police,  

Narcotics Branch, whereupon he was directed by the Station House Officer  

to conduct a raid.

At  about 12.15 p.m. on the said date,  allegedly,  the  appellant  was  

apprehended at the given place.  He is said to have been provided with an  

option for getting himself searched before a Magistrate or a Gazetted Officer  

wherefor a notice under Section 50 of the Act was served.  However, as he  

had  not  opted  to  be  searched  before  a  Magistrate/  Gazetted  Officer,  the  

appellant was searched by Sub Inspector Atar Singh.

  Upon  search  of  his  person,  600  gms.  of  smack  was  recovered.  

Appellant was prosecuted under Section 21 of the Act.  He was sentenced to  

undergo rigorous imprisonment  for  ten years.   Fine of  Rs.1,00,000/-  was  

also imposed upon him.

4. Appellant  preferred an appeal  thereagainst,  which by reason of  the  

impugned judgment dated 23.03.2007 has been dismissed.

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5. This Court by an order dated 22.09.2008 issued a limited notice with  

regard to the question as to whether the quantum of sentence imposed upon  

the appellant was required to be considered having regard to the amendment  

carried out by the Parliament in the year 2001 in the Act.

6. Gp. Capt. Karan Singh Bhati, learned counsel appearing on behalf of  

the  appellant,  would contend that  the  Amending  Act  being a  beneficient  

legislation  so  far  as  an  accused  is  concerned,  the  same  will  have  a  

retrospective effect.  In any event, it was urged, this Court while considering  

the question with regard to quantum of sentence should consider the effect  

thereof having regard to the fact that the appellant is in custody for a long  

period.

7. Ms. K. Amreshwari, learned senior counsel appearing on behalf of the  

State, on the other hand, would support the impugned judgment.

8. The offence indisputably took place on 26.09.1999.  Appellant was  

convicted by a judgment dated 5.11.2000.  As indicated hereinbefore, the  

Amending  Act  came  into  force  on  2.10.2001.   By  reason  of  the  said  

amendment,  “commercial  quantity” and “small  quantity”  were  defined as  

under:

“2(viia)  "commercial  quantity",  in  relation  to  narcotic drugs and psychotropic substances, means  

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any quantity greater than the quantity specified by  the  Central  Government  by  notification  in  the  Official Gazette;”

2(xxiiia)  "small  quantity",  in  relation  to  narcotic  drugs  and  psychotropic  substances,  means  any  quantity lesser than the quantity specified by the  Central Government by notification in the Official  Gazette.”

9. Section 21 of the Act, which was also amended by Section 8 of the  

said Amending Act, reads as under:

“21.  Punishment  for  contravention  in  relation  to  manufactured drugs and preparations

Whoever, in contravention of any provision of this  Act  or  any  rule  or  order  made  or  condition  of  licence  granted  thereunder,  manufactures,  possesses,  sells,  purchases,  transports,  imports  inter-State,  exports  inter-State  or  uses  any  manufactured drug or  any preparation containing  any manufactured drug shall be punishable,--

(a)  where  the  contravention  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)  where  the  contravention  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)  where  the contravention 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  

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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.”

10. It is now beyond any doubt or dispute that the quantum of punishment  

to be inflicted on an accused upon recording a judgment of conviction would  

be as per the law, which was prevailing at the relevant time.

As  on  the  date  of  commission  of  the  offence  and/  or  the  date  of  

conviction,  there  was  no  distinction  between  a  small  quantity  and  a  

commercial quantity, question of infliction of a lesser sentence by reason of  

the provisions of the Amending Act, in our considered opinion, would not  

arise.   

It is also a well-settled principle of law that a substantive provision  

unless  specifically  provided  for  or  otherwise  intended  by  the  Parliament  

should be held to have a prospective operation.  One of the facets of Rule of  

Law  is  also  that  all  statutes  should  be  presumed  to  have  a  prospective  

operation only.

11. Mr.  Bhati,  however,  has  drawn our  attention  to  a  decision  of  this  

Court  in  State  Through  CBI,  Delhi v.  Gian  Singh [(1999)  9  SCC  312]  

wherein a Three-Judge Bench of this Court, while considering the provisions  

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of the Terrorist and Disruptive Activities (Prevention) Act, 1987 in regard to  

the  question  as  to  whether  despite  the  fact  that  Section  3(2)(i)  of  the  

Terrorist and Disruptive Activities (Prevention) Act, 1985 having provided  

for imposition of death penalty, having regard to a saving clause contained  

in  Section  1(3)  thereof  mandating  for  a  different  outflow even  after  the  

expiry of the Act, held:

“25. We have extracted Section 3(2) of the TADA  Act, 1985 above. It could be discerned therefrom  that  the  only  sentence  which  the  sub-section  permitted for awarding is death penalty in case the  terrorist act resulted in the death of any person. It  must  be  pointed  out  that  TADA  Act,  1985  remained  in  force  only  for  a  period  of  2  years  starting from 23-5-1985†. In other words, TADA  Act,  1985 expired on 22-5-1987 (sic 23-5-1987).  Instead of the statute reaching the stage of expiry  by the efflux of time, if it was repealed by another  statute,  nothing  would  have  survived  from  the  repealed  statute  unless  the  succeeding  enactment  incorporates  necessary  provision  to  the  contrary.  This  is  pithily  amplified  in  Section  6  of  the  General  Clauses  Act.  But  the  aforesaid  legal  implications  of  repeal  of  a  statute  cannot  be  applied  in  the  case  of  expiry  of  a  statute,  (vide  State  of  Punjab  v.  Mohar  Singh  Pratap  Singh).  Normally  the  proceedings  terminate  ipso  facto  with  the  expiry  of  the  statute.  Craies  on  Statute  Law at p. 409 of the 7th Edn. has stated thus:

“As  a  general  rule,  and  unless  it  contains  some  special provision to the contrary, after a temporary  Act has expired, no proceedings can be taken upon  it,  and  it  ceases  to  have  any  further  effect.  Therefore,  offences  committed  against  temporary  

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Acts must be prosecuted and punished before the  Act  expires,  and as soon as the Act  expires  any  proceedings  which  are  being  taken  against  a  person will ipso facto terminate.”

Having regard to the fact that an alternative to the death penalty, i.e.,  

sentence for imprisonment for life, could be imposed under the 1987 Act, it  

was held:

“31. If the position was just in the reverse order i.e.  the latter  Act contained harsher sentence and the  former  Act  contained  a  lesser  sentence  the  prohibition  embodied  in  Article  20(1)  of  the  Constitution that no person shall “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” would have come to  the rescue of the offender. But the offender (who is  liable to be convicted for the same offence, had it  been committed after the coming into force of the  subsequent  TADA  Act,  1987)  could  have  been  punished with a sentence of imprisonment for life,  because  such  an  alternative  is  provided  in  that  enactment.”

As regards the purpose for which the legislative benevolence carried  

out by reason of the said Act would be extended, it was held:

“34. There is inconsistency between the sentencing  scope in Section 3(2) of TADA Act, 1985 and in  the corresponding provision in TADA Act, 1987.  The expression “in any enactment other than this  Act” would, under Section 25, encompass even an  

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enactment which, though expired by the efflux of  time, continues to operate by virtue of any saving  clause. Accordingly, the exclusivity of the extreme  sentence contained in Section 3(2) of TADA Act,  1985 must stand superseded by the corresponding  benevolent provision in TADA Act, 1987. It is a  permissible  course  and  the  express  prohibition  contained in Article 20(1) of the Constitution is not  a bar for resorting to the corresponding sub-section  in TADA Act, 1987.”

12. Act 9 of 2001 did not bring about any significant or material changes  

in the parent Act.  The Parliament had given effect thereto with effect from a  

particular  date,  viz.,  2.10.2001.  If the Amending Act was to be given a  

retrospective effect, the amendments carried out in regard to the provisions  

for holding of trial would have been required to be complied with warranting  

a retrial in terms thereof.

13 One  of  the  objectives  of  a  criminal  trial  is  that  delay  should  be  

avoided.

The  proviso  appended  to  Section  41(1)  of  the  Amending  Act  

categorically provides that the said amendment shall not have any effect to  

the pending appeals.  It is, therefore, an indicator to show that the concluded  

trials should not be reopened.   

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In Basheer alias N.P. Basheer v. State of Kerala [(2004) 3 SCC 609],  

this Court took notice of the decision of this Court in  Gian Singh (supra)  

stating:

“22.  Inasmuch  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  retried  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  of  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  

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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 case would apply to such a  case.  The  possibility  of  such  a  fortuitous  case  would not be a 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.”

On the aforementioned finding, the decisions of the Division Benches  

of the Punjab and Haryana High Court and the Madhya Pradesh High Court,  

which had applied the said Amending Act with retrospective effect,  were  

overruled.   

14. In  Amarsingh  Ramjibhai  Barot v.  State  of  Gujarat [(2005)  7  SCC  

550], this Court noticed that the minimum punishment under Section 21(c)  

of the Act is of ten years with a fine of Rs. 1,00,000/-.

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If  the  said  provision  is  applicable,  we  do  not  see  as  to  why  the  

minimum sentence prescribed therein can be held to be not applicable.

This Court in The Superintendent, Narcotic Control Bureau v. Parash  

Singh [2008 (13) SCALE 372] followed  Basheer (supra)  opining that  by  

reason of the Amending Act, no new offence was created.

15. Mr. Bhati would contend that it is a fit case where we should reduce  

the sentence, as has been done in  E. Micheal Raj v.  Intelligence Officer,  

Narcotic Control Bureau [(2008) 5 SCC 161].

In E. Micheal Raj (supra), this Court did not assign any reason.  It did  

not consider any of the decisions including Gian Singh (supra) and Basheer  

(supra).  It merely held:

“20. In the present case, the narcotic drug which  was found in possession of the appellant as per the  analyst’s report is 60 gm which is more than 5 gm  i.e.  small  quantity,  but  less  than  250  gm  i.e.  commercial  quantity.  The  quantity  of  60  gm  is  lesser  than  the  commercial  quantity,  but  greater  than  the  small  quantity  and,  thus,  the  appellant  would  be  punishable  under  Section  21(b)  of  the  NDPS Act. Further, it is evident that the appellant  is merely a carrier and is not a kingpin.”

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No ratio was laid down therein.  Although this Court noticed that the  

amendment  had  come  into  force  with  effect  from  2.10.2001,  the  effect  

thereof  had  not  been  considered.   It  proceeded  on  the  basis  that  the  

amendment shall apply.

16. Mr. Bhati strongly relied upon a decision of this Court in Rattan Lal v.  

The State  of  Punjab [AIR 1965 SC 444] wherein  this  Court  applied  the  

provisions of Probation of Offenders Act, 1958, stating:

“…When it was contended that the word “may” in  Section 11 of the Act empowers the appellate court  or  the  High  Court  to  exercise  the  power  at  its  option and the words “any order  under the  Act”  empower it to make an order without reference to  the  standards  laid  down  in  the  Act,  this  Court  rejected  both  the  contentions.  It  held  that  the  expression “may” has compulsory force and that  the power conferred on the appellate court was of  the same nature and characteristic  and subject to  the same criteria and limitations as those conferred  on courts under Sections 3 and 4 of the Act. This  decision lays down three propositions, namely, (i)  an appellate court or a revisional court can make  an order under Section 6(1) of the Act in exercise  of its power under Section 11(1) thereof; (ii) it can  make such an order for the first time even though  the trial court could not have made such an order,  having regard to the finding given by it; and (iii) in  making such an order it is subject to the conditions  laid down in Sections 3, 4 and 6 of the Act. The  only  distinguishing  feature  between  the  present  case  and the  said  decision  is  that  in  the  present  case the trial court did not make the order as the  Act  was  not  extended  to  the  area  within  its  

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jurisdiction and in the said decision the trial court  did  not  make  the  order  as  it  could  not,  on  its  finding that the accused was guilty of an offence  punishable with imprisonment for life. But what is  important  is  that  this  Court  held  that  the  High  Court for the first time could make such an order  under Section 11 of the Act, as such a power was  expressly conferred with by Section 11 of the Act.  We,  therefore,  hold  that  the  appellate  court  in  appeal  or  the  High  court  in  revision  can,  in  exercise of the power conferred under Section 11  of  the  Act,  make  an  order  under  Section  6(1)  thereof, as the appellate court and the High Court,  agreeing  with  the  Magistrate,  found  the  accused  guilty of the offences for which he was charged.”

The said decision, in our opinion, has no application in the instant  

case.

17. We, therefore, are of the opinion that the Amending Act cannot be  

said to have any retrospective effect.  The appeal is dismissed accordingly.  

………………………….J. [S.B. Sinha]

..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi; May 05, 2009

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